Friday, July 17, 2009


I'm a big fan of the Amazon Kindle, and think that electronic book readers are the future. But behavior such as that described on David Pogue's New York Times blog can do much to alienate prospective readers:

This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for — thought they owned.

But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people’s Kindles and credited their accounts for the price....

You want to know the best part? The juicy, plump, dripping irony?

The author who was the victim of this Big Brotherish plot was none other than George Orwell. And the books were “1984” and “Animal Farm.” ...

Thanks to Kevin Gerson of the UCLA Law Library for the pointer.

UPDATE: Commenter areader writes, "What are you talking about? 1984 has never been available on Kindle."


Politico on Sotomayor's Questions to Lawyers During Appellate Arguments:

The story is here, and it links to audio of the arguments.


My Detroit Free Press op ed on Sotomayor and Didden:

The Detroit Free Press recently published my op ed on Sotomayor and the Didden case:

It’s not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London. But Judge Sonia Sotomayor, now herself up for the Court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory. In Kelo the Court held that the government can condemn a person’s property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor’s panel went further, upholding the government’s condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

This op ed is actually largely the same one as that published in the Orange County Register on Saturday. However, unlike the Register, the Free Press did not cut the parts responding to the main arguments advanced by Didden's defenders.


Refusal to Consent to Caesarean Section as Neglect of the Child?

A quick search suggests that this decision hasn't hit any mainstream media sources yet, though it strikes me as an interesting story. If you're a journalist who reads this blog, you might want to take a look to see if you agree.

Related Posts (on one page):

  1. Refusal to Consent to Caesarean Section as Neglect of the Child?
  2. Refusal to Consent to Caesarean Section as Neglect of the Child?

Conservatives for Rent - "Brown Bailout" Edition:

Fed-Ex and UPS are embroiled in a nasty political fight. In short, UPS is seeking legislative changes that will increase FedEx's regulatory and labor costs. Specifically, UPS wants to force FedEx to be covered by the National Labor Relations Act, as UPS is, rather than than the Railway Labor Act. FedEx is currently under the latter because it primarily relies upon air shipping. UPS is primarily a ground carrier, so it falls under the NLRA. Unions also support the shift, as it would likely increase unionization within FedEx.

Many conservatives have been critical of UPS' campaign (see here and here). At least one conservative group, the American Conservative Union, also appears to have sought support for a campaign in support of FedEx, only to shift sides when its request was turned down. According to The Politico, ACU sent met with FedEx officials and sent them a letter seeking over $2 million to fund a "grassroots" campaign against the so-called "Brown Bailout." "We have reviewed your concerns regarding the NLRB and we believe we could strongly support your position," the letter said.

Apparently FedEx wasn't buying. So the ACU jsut turned its energies to other important issues, right? Within weeks of seeking money from FedEx for the anti-UPS effort, ACU Chairman David Keene joined other conservative activists signing a letter bearing the ACU logo that attacked FedEx for calling the pro-UPS policy proposal the "Brown Bailout." Labeling what UPS seeks as a "bailout" is improper, the second letter said, because "UPS was not seeking any taxpayer funds — only regulatory reform that would insure equal treatment of both companies under our nationʼs labor laws."

Bailout, shmailout. Whatever one calls it, UPS is engaging in special interest rent-seeking. While they don't seek tax dollars, their desired reforms would increase shipping costs for consumers, so we'd still be stuck paying for it. If UPS really wants "equal treatment," they should seek regulatory relief, perhaps a shift of UPS from NLRA to RLA jurisdiction, instead of asking the government to knee-cap a competitor.

As for ACU, it's one thing for activist organizations to seek support from organizations with common interests. So, for instance, there is nothing wrong with an anti-tax organization seeking money from corporations to fight increased taxes that could harm those corporations' interests. To the extent that such organizations can raise funds to support some campaigns and not others, this will inevitably influence a group's priorities, but does not necessarily compromise its principles. What is so unseemly here is ACU's apparent about face, from eagerly supporting FedEx's position to attacking the company's clever PR campaign, just after it failed to secure financial support. This sort of thing damages a group's credibility, and rightly so.

UPDATE: ACU has issued a press release disputing the Politico story, and claiming that the organization is still opposed to extending NLRA jurisdiction to cover FedEx. It reads in part: "ACU stands with the policy that FedEx should not be placed under the NLRB. This was ACU policy - before and after - any letters in question were drafted." It also claims that ACU did not endorse the letter attacking use of the "Brown bailout" slogan signed by David Keene and bearing the ACU logo.

Note: This morning, before publishing this post, I searched the ACU website for any indication the organization opposed extending NLRA jurisdiction to cover FedEx, and found nothing. I have just repeated my searches, and the only relevant document that comes up is today's press release.


Jules Crittenden on "'The Sun of Songun Shedding Its Rays All over the World,'

an epic serial blockbuster about the life of Kim Jong Il." From The Independent (U.K.):

His birth was marked by a double rainbow and a new star, he hit 11 holes-in-one in his first game of golf, finishing 38 under par, and throughout his life he has performed heroic feats impossible for mere mortals. When he shouts, "huge storms happen".


Video of Testimony at Sotomayor Confirmation Hearings by David Kopel and Ilya Somin, Among Others:

It's here; thanks to InstaPundit for the pointer.


HRW's Whitson Defends Fundraising in Totalitarian Countries:

Inter Press Service

Bernstein maintained that "it's extremely unwise for a human rights group to raise money in a totalitarian country, even from human rights advocates in that country."

Whitson said the claim had no grounds, noting that the notion "that any money from Saudi Arabia is tainted because it comes from a country with a totalitarian ruling regime is a gross generalisation."

"The ethnic background of our donors is irrelevant to the work we do," Whitson told IPS. "It's not relevant to our work in Israel that many, many of our donors are Jewish. And it's not relevant for the work that we do that we get money from Arab countries."

"Should people be criticising us for the fact that much of our support base is made up of Jews?" Whitson said. "Should that imply that our work on Israel is in fact too soft?"

Let's review. The problem with HRW's fundraising in Saudi Arabia is two-fold: (1) Totalitarian (or even run-of-the-mill authoritarian) governments will only allow fundraising for human rights NGOs to the extent that the NGO is at worst only a minor nuisance to it. If HRW becomes dependent on Saudi money, it will have a significant incentive softpedal Saudi Arabia's human rights violations; (2) HRW specifically asked for money in Saudi Arabia due to its research and publicizing of Israel's alleged human rights violations in Gaza, and the cost of its battles with "pro-Israel pressure groups in the US, the European Union and the United Nations" (as if the U.N., with dozens of Arab and Muslim countries, is a hot bed of pro-Israel sentiment!). So HRW went to the elites of a totalitarian nation, with some representatives of the government in the audience(!) to ask for money to help it combat the controversial policies of a liberal democracy.

On point 1, Whitson has intentionally distorted the point to an issue of the "ethnic background of our donors." Elsewhere, she responded to me by concluding that "believe it or not, some Arabs believe in human rights too." If Whitson has some reason to believe that HRW's mission won't be compromised by fundraising in totalitarian nations, say that HRW is limiting its fundraising in such countries to 5% of its budget so it doesn't become dependent, let her say so. But her claim that the issue I raised is the "ethnic background" of HRW's donors is egregiously dishonest.

As for point 2, HRW director Ken Roth has claimed that the pitch regarding Israel was made in the broader context of discussing HRW's work in the Middle East, and did not amount to a request for funds specifically to combat Israel. ("I've been told that we talked about the range of our work in the region, including Israel, Saudi and elsewhere.... That's [the Israel stuff] certainly part of the story. We report on Israel. Its supporters fight back with lies and deception. It wasn’t a pitch against the Israel lobby per se. Our standard spiel is to describe our work in the region. Telling the Israel story — part of that pitch — is in part telling about the lies and obfuscation that are inevitably thrown our way.")

So, HRW acknowledges that it used its reporting on Israel and its battles with Israel's supporters as part of its pitch in Saudi Arabia. The only remaining question is how prominent this was. Given HRW's constant refrain that it believes in "transparency," HRW should release a transcript of the remarks made before the Saudi elites, or, better yet, a video. And while they're at it, how about releasing data on how much money comes from citizens of repressive regimes, how much of that money is earmarked, and for what?

Meanwhile, here is lawprof Maimon Schwarzchild's account of his acquaintance with a vociferously anti-American and anti-Israel senior staffer at HRW.

UPDATE: HRW has now sent a statement on the controversy to its Board of Directors, which I reprint below:

A number of recent media reports have suggested that Human Rights Watch has compromised its neutrality by meeting with potential donors at receptions in Saudi Arabia and elsewhere in the Middle East. These reports are based on misleading assumptions and wrong facts.

Human Rights Watch does not accept donations from any government. All of our US$44 million annual budget is raised from private individuals and foundations. Of that sum, almost 75% comes from North America and about 25% from Western Europe, with less than 1% from all other regions of the world combined. As an organization with a global mandate, we are naturally endeavoring to diversify our financial base and have begun to actively explore funding in regions as diverse as Africa, Asia, and the Middle East.

Accordingly, Human Rights Watch staffers made presentations on our work to two private audiences in Saudi Arabia in May (as well as to audiences in Amman and Beirut). [click to continue reading]



Thursday, July 16, 2009

My Testimony on Property Rights at the Sotomayor Confirmation Hearings:

As many of our readers know, I testified at Judge Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee today, on the subject of property rights. My written testimony (which is much more extensive than the brief oral testimony at the hearing), can be read here. It discusses - in greater detail than I could on this blog - Sotomayor's most notorious property rights ruling: Didden v. Village of Port Chester. I also analyze her much better ruling in Krimstock v. Kelly, a case that addressed an issue that will come before the Supreme Court this fall, in Alvarez v. Smith.

I realize, of course, that what I say is unlikely to affect the outcome of the confirmation process. Nonetheless, it was an honor to be the first witness ever called to testify at a Supreme Court confirmation hearing specifically about property rights issues. Far more importantly, the extensive focus on property rights at these hearings (especially compared to the near-total neglect of these issues when past nominees came before the Senate) is a good sign for the future.

UPDATE: A webcast of the oral testimony should probably be available at the Judiciary Committee website tomorrow.

UPDATE #2: A broadcast of the oral testimony is actually available at the C-SPAN website here. It is the first panel of the "evening" tape. My testimony begins around the 44th minute. There is also a question for me by Senator Jeff Sessions about 15-20 minutes later, where he says the testimony led him to think that the Didden case was worse than he had previously thought.

UPDATE #3: I have corrected the inaccurate link to my written testimony.


"Should a Parent Be Required To Donate a Kidney to a Child Who Needs a Life-Saving Transplant?"

A commenter asked this as a rhetorical question, suggesting, I think, that the answer must obviously be "no." But I don't see why, assuming that we're talking about a minor child of the parent. Parents are rightly seen as having duties to their children. These include the duties to work to support the child for 18 years (more controversially, that's extended even beyond 18 years in many child support decisions, but for now I set that aside); to care for the child; to bear a post-viability fetus, at least absent some substantial threat to the mother's life or health; and more.

Why wouldn't this also extend to the obligation to provide a life-saving transplant, at least when the risk is as low (not zero, but very low) as it is for kidney transplants? You bring a child into the world, and you incur major obligations to it; why shouldn't this be one of them?

Now I don't ask these questions as rhetorical ones, since it's possible that some distinctions can be drawn (or even that the existing obligations on parents are excessive, though I'm skeptical about that). Perhaps there is a dispositive difference between providing an organ and having to work for 18 years to support someone. (I agree there's a difference, even an important one, but it's just not clear to me that it should lead to a difference in result.) Perhaps there is something dispositively different between having to give a kidney forever, and having to provide one's womb for several months; or perhaps women shouldn't have to bear fetuses even post-viability; or perhaps women only have to bear fetuses post-viability because they knew of this obligation early on, and had an opportunity to avoid this by a pre-viability abortion. I haven't thought about the matter deeply enough to have a well-worked out response to all these things.

But my intuition is that a legal duty to provide a kidney, given the very low risk that it involves, is well within the range of burdens that parents may rightly be required to bear; and at the very least we can't just categorically exclude that possibility. I'd love to hear what others have to say.


Refusal to Consent to Caesarean Section as Neglect of the Child?

From today's very interesting decision in New Jersey Div. of Youth & Family Servs. v. V.M. (N.J. Super. Ct. App. Div.):

Defendants V.M. [the mother] and B.G. [the father] appeal from the judgment ... which found that they abused and neglected their child, J.M.G. As a result of these findings, J.M.G. was placed in the custody and care of plaintiff Division of Youth and Family Services (DYFS). At a permanency hearing the judge approved DYFS's plan for termination of parental rights....

We agree that the judge's findings as to V.M. were supported by the evidence adduced at the hearing, but ... we disagree as to his findings as they relate to B.G.... [On the record before us, we do not think that] whether V.M.'s refusal to consent to a cesarean section (c-section) can, as a matter of law, be considered an element of abuse and neglect ... need be decided.

[T]he independent evidence presented, irrespective of the evidence concerning V.M.'s resistance to the c-section, amply supported the judge's ultimate finding as to V.M., and we affirm as to her. As to B.G., we reverse for the reasons set forth in the concurring opinion.

Carchman, P.J, concurring.

Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section). Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.

After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information.

DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody. At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth. V.M.'s refusal to consent to a c-section factored heavily into this decision. Later, at a permanency hearing, the judge approved DYFS's plan for termination of parental rights and foster family adoption.

On appeal, V.M. and B.G., among other arguments, assert that the judge erred in considering in his findings that they abused and neglected J.M.G. based on decisions that V.M. made concerning medical treatment, specifically, her refusal to consent to a c-section. At trial, DYFS asserted that V.M.'s refusal to consent to a c-section was a relevant factor in expressing abuse and neglect....

My majority colleagues conclude that irrespective of whether or not V.M. consented to the c-section, there was sufficient credible evidence to support a finding of abuse and neglect as to V.M. The majority therefore eschews any discussion of the issue of c-section.

I concur in the result reached as to both V.M. and B.G. I am of the view that ... [the c-section] issue remains extant and requires a level of judicial scrutiny. Consideration of V.M.'s refusal to submit to a c-section, in my view, is improper and beyond the legislative scope of the child-protective statutes. For this reason, I concur....

There is no allegation that J.M.G. was actually harmed by her parents. Rather, the judge's finding was based solely on the imminent danger of harm presented by V.M.'s actions and mental condition.

The unique problem here is that much of V.M.'s erratic behavior occurred before J.M.G.'s birth, while V.M. was still pregnant. N.J.S.A. 9:6-8.21(b) defines "child" simply as "any child alleged to have been abused or neglected." Nothing in the statute or the attendant legislative history suggests that the Legislature intended that the provisions of the Act should apply to a fetus....

The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.

However, I agree that there was sufficient additional evidence to support the judge's finding that V.M. placed J.M.G. in imminent danger from April 16 to April 20, 2006. As the hospital records reflect, V.M. was "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural. Incredibly, she also called the Livingston Police to report that she was being abused and denied treatment when it was her "erratic" and "combative" behavior that was preventing the hospital staff from providing treatment....

For more, see the full opinion.

Related Posts (on one page):

  1. Refusal to Consent to Caesarean Section as Neglect of the Child?
  2. Refusal to Consent to Caesarean Section as Neglect of the Child?

VC's Ilya Somin About to Testify: Just minutes from now, my co-blogger Ilya Somin is will testify about property rights in the Sotomayor confirmation hearings. You can watch the testimony live here. He is the last witness on the current panel. Sitting directly behind this panel is the next one, which includes my Georgetown colleague Nick Rosenkrantz, GMU law professor Neomi Rao, and NU law professor John McGinnis.

Update: I missed David Kopel on the panel, and he is testifying now.

Update: Both David's and Ilya's prepared remarks were succinct and powerful. Just like this blog!

Heller and Human Rights Watch:

Kevin Jon Heller, an American teaching international criminal law in Australia [corrected], has been on a campaign at his blog to discredit my posts about Human Rights Watch. It's therefore worh reprinting an exchange from the comments on one of his posts on the issue:


Putting aside Professor Bernstein's post, are your comfortable with HRW going to Saudi Arabia and using its work vis-a-vis Israel or Jewish entities in the US as the focus of its fund raising? .... I think the point is using one's work against Israel as a donation argument in an Arabic country is very troublesome.

For example, pretend that HRW attended a right-wing event to raise funs with the argument that they were “sticking it to the Arabs” with their focus on women's rights.


I think that is a very fair question — and I appreciate the civil tone in which you ask it. My answer depends on whether HRW is even-handed in its fundraising. If it fundraises with progressive Jews by highlighting its criticisms of Hamas, no. But if it is one-sided, absolutely. I have an email into a friend at HRW to ask precisely that question; I'll report the results when I get them.

That was exactly one month ago. Now, all of us but Kevin know that Sarah Leah Whitson wouldn't be caught dead fundraising among Jews sympathetic to Israel by highlighting its criticisms of Hamas (which, by the way, are much more limited than its criticisms of Israel).

But you would think that now that a month has gone by, with no examples of anti-Palestinian fundraising by HRW having arisen, Kevin would at least acknowledge that as sympathetic as he is to HRW, its fundraising among Saudi elites while promoting its work in Gaza and its battle with pro-Israel critics was dodgy. You'd be wrong.

You'd also think that Kevin would acknowledge that HRW director Kenneth Roth explaining Whitson's statements in Saudi Arabia away by writing: "We report on Israel. Its supporters fight back with lies and deception," is at best arrogant (We're always right! They lie and deceive!) and impolitic, and at worst reflects a deep hostility to supporters of Israel. Nope, the real villain is me, and my "clever rhetorical move" in noting Roth's unqualified statement.

And Kevin doesn't even try to explain why HRW, if it were at all concerned with even the appearance of not being anti-Israel, would hire Palestinian political activists with longstanding anti-Israel records to be its researchers, while, to put it mildly, not exactly reaching out to former AIPAC staffers.

No need to open a new thread, you may comment on the previous one.

UPDATE: Oh, and a previous encounter with Heller involved his post, "Israel's Shifting Defense of Its Attack on the UN School," an attack which, Heller asserted, based on nothing in particular, "was an intentional attack that was either (1) designed to punish the UN for helping the residents of Gaza; or (2) based on faulty intelligence." But, oops:

The United Nations has reversed its stance on one of the most contentious and bloody incidents of the recent Israel Defense Forces operation in Gaza, saying that an IDF mortar strike that killed 43 people on January 6 did not hit one of the United Nations Relief and Works Agency schools after all.

I first pointed out in the comments that Israel, after some initial confusion, and contrary to Heller's post, denied that it hit this school. Nothing. I later pointed out the UN's own finding, with relevant link, to Heller via email, and suggested that he might issue a correction. None was forthcoming.

Revisiting Rosen: On Contentions, Jenifer Rubin recalls Jeff Rosen's preemptive warnings about Judge Sotomayor:
After two days of Sotomayor testimony I thought of Jeffrey Rosen’s piece on Sotomayor back in May (before he had to backpedal and support her so as not to embarrass the “team”). I don’t think much of his temperament criticism, but his analysis of her legal and intellectual capabilities seems exactly on the money:
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. ”

[. . .]

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions–fixing typos and the like–rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)
Has she said anything to dispel these concerns? Whether examining her verbal skills, her command of the law or her intellectual acuity, I come away thinking she is one of the least impressive Supreme Court nominees to come along in recent memory. Judge Robert Bork was obviously not everyone’s ideal judge, but the man’s intellectual prowess was undeniable and he refused to lie about his views. Justice Ruth Bader Ginsburg was frankly charming and sharp-witted in her testimony and could march the senators through the evolution of a number of strains of jurisprudence.
Then there is this passage:
Rosen was trying to warn his liberal compatriots that they could do “better” than Sotomayor. He was right and should get some credit for his effort. Imagine if Diane Wood or Kathleen Sullivan, both liberal in philosophy but undeniably impressive, had been up there over the last couple of days. I suspect that conservatives would have been staring at their shoes, struggling for reasons to say “no” and grudgingly acknowledging that the nominee was going to add something to the Court beyond her gender.
When Rosen published his critique, I knew very little about Sotomayor. After forcing myself to watch much of the hearings, I wonder if those who criticized him then are having any second thoughts today.

Senators Out-Talking Sotomayor:

Even without Joe Biden on the committee, the Senators on the Judiciary Committee have been out-talking Judge Sotomayor more than two-to-one.


Cornyn: A Confirmation Conversion?

From Senator Cornyn's questioning of Judge Sonia Sotomayor today:

the purpose of these hearings is — as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy, yet so far I find there's still some confusion.

For example, in 1996, you said the idea of a stable, quote, "capital L Law" was a public myth. This week, you said that fidelity to the law is your only concern.

In 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. Today you characterized that argument as being only that ambiguity can't exist and that it is Congress's job to change the law.

In 2001, you said that innate physiological differences of judges would or could impact their decisions. Yesterday, you characterized that argument as being only that innate physiological differences of litigants could change decisions. In 2001, you disagreed explicitly with Justice O'Connor's view of whether a wise man and wise woman would reach the same decision. Yet, during these hearings, you characterized your argument as being that you agreed with her.

A few weeks ago, in your speech on foreign law to the American Civil Liberties Union, you rejected the approach of Justices Alito and Thomas with regard to foreign law, and yet it seems to me, during these hearings, you have agreed with them.

So, Judge, what should I tell my constituents who are watching these hearings and saying to themselves, "In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country"?

UPDATE: Judge Sotomayor's response (available at the same link above):

I would tell them to look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputably sympathetic claims, but ruling the way I have on the basis of law rejecting those claims, I would ask them to look at the speeches completely, to read what their context was and to understand the background of those issues that are being discussed.

I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity.

In the end, I would tell your constituents, Senators, look at my record and understand that my record talks about who I am as a person, what I believe in and my judgment and my opinion. But following the rule of law is the foundation of our system of justice.


Human Rights Watch and the Presumption of Good Faith:

Human Rights Watch's fundraising in Saudi Arabia has cast a welcome light on the organization's anti-Israel agenda. Much of the response among HRW's defenders has been along the lines of, "how dare you attack a human rights organization? Typical right-wing Zionist crap, attacking the messenger."

This criticism, of course, presumes that HRW is acting in good faith as a neutral human rights arbiter. The other possibility is that HRW's Israel policy is driven by a leftist "anti-colonialist" agenda masquerading as a human rights agenda, and using the halo effect of HRW's human rights work in other regions to provide it with credibility.

The evidence strongly suggests the latter.

Take a look at NGO Monitor's investigation of HRW's Middle East staff. It includes researcher Nadia Barhoum. Barhoum is a Palestinian activist who publicly supported divestment from Israel because of its "apartheid" policies.

A blog she wrote while living in the Palestinian territories hardly shows an even-handed concern with human rights abuses emanating from the Palestinian side. Here's what she wrote after Hamas won election in Gaza:

right now, the western powers are threatening to halt aid to the palestinians on account of hamas and its stance on the use of violence against the state of israel. ironic, because i never once heard a western power threatening to discontinue its billions of dollars in aid to israel on account of the violence used daily against palestinians.

And that's just one example. Read the whole NGO Monitor report.

Of course Human Rights Watch could counter that it hires "activists" on all sides, because they have a particular incentive to ferret out abuses by their opponents. A dubious argument, but completely undermined by the fact that HRW doesn't hire pro-Israel activists, and it's laughable to think it ever would.

That doesn't mean that HRW is never right when it points out perceived Israeli wrongdoing. It just means that HRW's reports on Israel should be treated with the same skepticism one would treat them if they came from any other anti-Israel NGO. The "human rights" halo is a false one, and the presumption of good faith unwarranted.


Testimony on Consumer Financial Protection Agency:

Yesterday I testified in the House Financial Services Committee on the Obama Administration's proposed Consumer Financial Protection Agency. My testimony is here. As you probably inferred from my WSJ column last week, I am not a fan of the proposal.

The full list of testimony is available here as well as an archived webcast for those who are interested. Unlike Ilya, who gets to meet David Cone, this hearing consisted of 7 bankers and me.

First Things College Survey of Religion on Campus:

First Things is conducting an online survey of religion on college campuses. Looks like they are soliciting responses from current students and recent grads. The survey is here if you are interested in participating.

Testifying with David Cone:

One of the stranger aspects of the Sotomayor confirmation hearings is that I will be testifying on the same panel as former major league baseball pitcher David Cone. Cone spent six years with Judge Sotomayor's beloved New York Yankees, and he will be testifying about how her confirmation will serve the nefarious interests of baseball's Evil Empire. No, just kidding! I assume he will actually be testifying in praise of Sotomayor's 1995 decision, as a district judge, to end the baseball strike on terms favorable to the players. Cone was for years a prominent figure in the MLBPA, the major league player's union that was the winning party in the 1995 litigation.

Even some conservatives have criticized the Republicans' decision to invite firefighter Frank Ricci to testify against Sotomayor, arguing that former litigants don't have any legal expertise to contribute, and are merely there to make dubious emotional appeals. Cone's testimony, on the other hand, is a case of a victorious litigant being invited to testify on behalf of a judge who ruled in his favor. Whether he contributes more or better legal insights than Frank Ricci remains to be seen.

I for one am happy that Cone will be there, since I am a huge baseball fan and it will be my first ever chance to meet an all star player. In addition to pitching for the Yankees, Mets, and Royals, Cone also spent a year with my favorite team, the Red Sox, at the ripe old age of 38. Although I vaguely remember him as being ineffective that year, the data show that he actually posted a 9-7 record and an ERA 5% better than league average.


Wednesday, July 15, 2009

The Sotomayor Hearings as a Step Forward for Property Rights:

A striking aspect of the Sotomayor confirmation hearing is that she got more questions about property rights than any other Supreme Court nominee in decades. In my post at the New York Times online panel on the hearings, I explain why this is a good thing, despite the generally unimpressive nature of her answers:

One of the most interesting developments in the hearings was the extensive questioning of Judge Sotomayor on property rights issues. In addition to questions posed by Republicans, Senator Herb Kohl, a Democrat from Wisconsin, criticized the Supreme Court's 2005 decision in Kelo v. City of New London, which allowed the condemnation of property for transfer to other private individuals to promote “economic development.”

Unfortunately, Judge Sotomayor’s testimony on property rights was not especially impressive...

Still, Judge Sotomayor’s answers were less important than the very fact of the questioning. Property rights are unlikely to advance beyond the "poor relation" status to which the Supreme Court has generally relegated them unless liberals as well as conservatives begin to support them. The Sotomayor hearings are another step in the right direction. Along with the widespread criticism of Kelo by liberals like Bill Clinton, Ralph Nader and the NAACP, the hearings represent some real progress. Unconstrained use of eminent domain harms minorities and the poor, a reality that has caused some long-awaited rethinking on the left.

I should note that I did not mean to say that the hearings were a "giant" step forward for property rights. That title was drafted by the Times (I hope to get them to change it). Rather, I think they represent modest incremental progress in the right direction.

UPDATE: I accidentally forgot to link to my NY Times piece in the original post. The oversight has now been corrected.


Reflections on Day 3:

My preliminary reflections on day three of the Sotomayor hearings are now up on here.

UPDATE: The NYT reports that, since Sotomayor's confirmation is all-but assured, "both sides are trying to use the Judiciary Committee hearings to define the parameters of an acceptable nomination in case another seat opens up during Mr. Obama’s presidency. By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with 'empathy,' Republicans have effectively set a new standard that future nominees will be pressed to meet."

Related Posts (on one page):

  1. Reflections on Day 3:
  2. Reflections on Day 2:
  3. Reflections on Day 1:

A Footnote You Wouldn't Want To See in a Court Opinion:

From Lopez v. Candaele, which I blogged about below:

This case is likewise not mooted by Defendants’ recent revelation that the Policy was supposedly repealed in 2007.[2] First, the Policy continues to appear on the District’s and LACC’s websites.... Thus, Plaintiff, and other students and employees, can reasonably believe they are subject to the Policy and experience a chilling effect.

[2] We are chagrined that defense counsel and Defendants’ representative who were present at the oral argument on June 10, 2009 were apparently ignorant of the status of a policy they purported to defend. This lack of preparedness is viewed with great disfavor.

Lawyers and future lawyers, take heed. Thanks to commenter Gabriel M. for the pointer.


Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:

The case stems from the incident in which a professor in a speech class refused to grade a student's presentation, apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.)

But the injunction, in Lopez v. Candaele, focuses on the policy, not the incident, and concludes that the policy is likely unconstitutional. Here's what the court says, in most relevant part (some paragraph breaks added):

The definitions section of the Policy, Section 15003, states:

Sexual harassment is defined as: Unwelcome sexual advances, requests for sexual favors, and other verbal, visual or physical conduct of a sexual nature, made by someone from or in the workplace or in the educational setting, under any of the following conditions: ..[.] (3) The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile or offensive work or educational environment....

Two websites, one maintained by the [Los Angeles Community College] District and the other by [Los Angeles City College], purport to expound upon the Policy. The District’s website states that sexual harassment can include “[d]isparaging sexual remarks about your gender[, r]epeated sexist jokes, dirty jokes or sexual slurs about your clothing, body, or sexual activities[, and d]isplay of sexually suggestive objects, pictures, cartoons, posters, screen savers[.]”Moreover, the site states, “If [you are] unsure if certain comments or behavior are offensive do not do it, do not say it... . Ask if something you do or say is being perceived as offensive or unwelcome. If the answer is yes, stop the behavior.” LACC’s website states that “[s]exual harassment can be intentional or unintentional.” The website further states:

It is important to be aware that sexual remarks or physical conduct of a sexual nature may be offensive or can make some people uncomfortable even if you wouldn’t feel the same way yourself. It is therefore sometimes difficult to know what type of behavior is sexual harassment. However the defining characteristic of sexual harassment is that it is unwanted and pervasive. It’s important to clearly let an offender know that certain actions are unwelcome. The four most common types of sexual harassment are:

1. Sexual Harassment based on your gender: This is generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or sounds; sexual slurs, obscene jokes, humor about sex....

We conclude that the Policy prohibits a substantial amount of protected free speech, even judged in relation to unprotected conduct that it can validly prohibit. First, as the above quotations make clear, the Policy prohibits some speech solely because the speaker “has the purpose” of causing an effect, regardless of whether the speech actually has any effect. The Supreme Court has held that a school may not prohibit speech unless the speech will “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). [Footnote: There are certain categories of speech, inapplicable here, that are excepted from the Tinker standard. See, e.g., Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (holding that a high school may ban from classrooms and assemblies “vulgar and lewd speech [that] would undermine the school’s basic educational mission.”); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that a high school may control the content of student speech in school-sponsored expressive activities so long as the controls are reasonably related to legitimate pedagogical concerns).]

Other circuits have found similar sexual harassment policies that restrict speech based on the speaker’s motives to be unconstitutional in light of Tinker. See DeJohn, 537 F.3d at 317 (“[T]he focus on motive is contrary to Tinker's requirement that speech cannot be prohibited in the absence of a tenable threat of disruption.”); Saxe, 240 F.3d at 216–17 (“As an initial matter, the Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech ‘which has the purpose or effect of’ interfering with educational performance or creating a hostile environment. This ignores Tinker's requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.”). Notably, in Saxe, a similar policy was found unconstitutional though it was adopted by an elementary and high school district, whose students receive less First Amendment protection than college students. Thus, the Policy’s regulation of speech based solely on the motive of the speaker is unconstitutional.

Moreover, by using subjective words such as “hostile” and “offensive,” the Policy is so subjective and broad that it applies to protected speech. In DeJohn, the Third Circuit concluded that such a policy must be invalidated unless it contains “a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work.” 537 F.3d at 318. Here, the Policy does not contain both a subjective and objective requirement. To the contrary, the District’s website admonishes, “If [you are] unsure if certain comments or behavior are offensive do not do it, do not say it.... Ask if something you do or say is being perceived as offensive or unwelcome.”

Thus, the Policy reaches constitutionally protected speech that is merely offensive to some listeners, such as discussions of religion, homosexual relations and marriage, sexual morality and freedom, polygamy, or even gender politics and policies. Indeed, the LACC’s website indicates that sexual harassment can include “sexist statements ... or degrading attitudes/comments about women or men.” This could include an individual’s outdated, though protected, opinions on the proper role of the genders. While it may be desirable to promote harmony and civility, these values cannot be enforced at the expense of protected speech under the First Amendment.

Thus, the Policy is unconstitutionally overbroad.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:

The Case Against Senatorial Deference to the President in Choosing Supreme Court Nominees:

I fully agree with Michael Rappaport's argument that senators should not give broad deference to the President's choice of Supreme Court nominees. Michael makes an especially good point when he notes that deference to the president is likely to lead to a Supreme Court that is biased in favor of excessively broad claims of executive power.

Some may find my position convenient, since I am about to testify critically about a Supreme Court nominee before the Senate. I can only respond by saying that I took the exact same position during the Bush Administration, back in 2007. At that time, I never expected to have any official role in a Supreme Court confirmation process.

The bottom line is that Supreme Court justices wield great influence and serve for life. It is dangerous to give any one man unconstrained power to choose them. It is almost equally dangerous to give him unconstrained power to appoint anyone with appropriate professional qualifications, since the president can almost always find a technically qualified nominee who will reflect his views - even if those views may be seriously flawed or show excessive deference to the executive. The current confirmation process has many flaws. But one that gives the President largely unconstrained authority to pick justices would be worse.

Related Posts (on one page):

  1. The Case Against Senatorial Deference to the President in Choosing Supreme Court Nominees:
  2. Senatorial Deference to the President's Supreme Court Picks?

Jeffrey Goldberg on Human Rights Watch:

Jeffrey Goldberg of the Atlantic follows up on the controversy surrounding my piece on HRW's fundraiser in Saudi Arabia. Goldberg reprints some rather remarkable email correspondence with Kenneth Roth, director of HRW, which is worth reading in full. But here's the conclusion:

In other words, yes, the director of Human Rights Watch's Middle East division is attempting to raise funds from Saudis, including a member of the Shura Council (which oversees, on behalf of the Saudi monarchy, the imposition in the Kingdom of the strict Wahhabi interpretation of Islamic law) in part by highlighting her organization's investigations of Israel, and its war with Israel's "supporters," who are liars and deceivers. [Roth: "We report on Israel. Its supporters fight back with lies and deception." [!!!!!!]] It appears as if Human Rights Watch, in the pursuit of dollars, has compromised its integrity.

UPDATE: I'd put it differently then Goldberg. There's no evidence that HRW's pursuit of dollars has compromised its integrity, at least not yet. Rather, HRW's pursuit of dollars has starkly revealed the underlying biases that it previously has denied having. But really, anyone who has been paying attention shouldn't be surprised that HRW's credibility on Israel-related issues approaches zero. [links just e.g.]

FURTHER UPDATE: And here's Matthew Yglesias completely missing the point. He describes my argument (without linking to the piece directly) as HRW being "somehow hypocritical for raising funds from private Saudi individuals." No. It's (a) HRW potentially compromising itself by becoming reliant on funds from a nation whose government will cut off the funds if HRW's reporting becomes a nuisance; and (b) HRW portraying itself not simply as an advocate of universal human rights, but specifically as a counterweight to pro-Israel organizations, while engaging in fundraising from private Saudi citizens.

And to make matters worse, director Roth has now revealed to Goldberg that he thinks that (apparently all) criticism of HRW's "reporting" on Israel amounts to "lies and deception"--although anyone who has studied the issue can present numerous examples in which HRW was wrong, and Israel's supporters correct, including my first link above. The logical conclusion is that HRW is institutionally hostile to Israel, whether for reasons of ideology, money, or because it enhances its "street cred" in other parts of the Middle East. That this hostility may ultimately undermine the credibility of HRW's in other countries, which indeed often seems valuable, is unfortunate, but it's a logical consequence of people's realization that HRW has utterly failed to be objective regarding Israel. Supporters like Yglesias do HRW no favors by letting it off the hook; without reform, HRW's reputation will sink under the weight of this scandal.


Senatorial Deference to the President's Supreme Court Picks? Over on The Right Coast, Mike Rappaport asks Is the President Entitled to Deference on His Supreme Court Nominees?:
Yes, say many right wing legal commentators. But the question is why? It is sometimes said that the Constitution gives the President the decision of which person to nominate and therefore the Senate should defer to that decision. But that seems mistaken. The Constitution also assigns to the Senate the role of advising and consenting to the nomination. Why does the Senate have to defer as to whether to consent? There is nothing in the Constitution about deference.

Another argument is that if the President does not get deference, there will be long and contentious nomination proceedings. Well, that might be, but so what. There are both benefits and costs to such proceedings, and the benefits include educating the public about the Supreme Court. Moreover, this argument begs the question. The President could avoid contentious proceedings by nominating a more moderate person. Why should the Senate have to defer rather than the President?

It is true that the Constitution assigns the President the first move -- he nominates and the Senate must respond. But that does not require the Senate to defer. It merely means that the Senate's job is to judge the person that the President has nominated and to determine whether that person is fit. But that does not suggest that they must defer to his choice. If they determine that his choice is unfit, then they can and should oppose. To put it differently, that the President nominates makes it difficult for the Senate to oppose that nominee because they would have preferred someone else. But it does not preclude the Senate from opposing the nominee because he or she fails to satisfy standards of fitness that the Senate believes to be applicable.

Finally, there is a significant problem with requiring senatorial deference. It allows the President to select nominees who are strongly disposed towards executive power. Senatorial deference might therefore lead over time to a court that is biased towards the executive. By contrast, requiring the President to compromise with the Senate would lead to a more even handed selection of justices.
And neither should the judiciary adopt a "presumption of constitutionality" by which it defers to the opinion of Congress that its statutes are constitutional. The judiciary, like the President, is a separate branch of government entitled to make its own independent assessment of whether or not an act of Congress is constitutional.

Of course, if Senators reject one nominee, they will then confront a second nominee, who may be no better, and may well be worse, from the perspective of the objecting Senators. They should, and likely always will, take this next move by the President into account when deciding whether to oppose a nominee. Readers who think Republicans should defeat Judge Sotomayor, if they had that power, should ask whether they are likely to be more or less happy with President Obama's subsequent nomination.

Related Posts (on one page):

  1. The Case Against Senatorial Deference to the President in Choosing Supreme Court Nominees:
  2. Senatorial Deference to the President's Supreme Court Picks?

We're Number 2! (or 3): Paul Caron presents his Law Prof Blog Rankings, which are the updated quarterly traffic rankings (visitors and page views) of the Top 35 blogs edited by law professors with publicly available SiteMeters for the most recent 12-month period (July 1, 2008 - June 30, 2009). The Volokh Conspiracy is #2 for page views (15,467,726) after Instapundit, and #3 for visitors (11,427,028) behind Instapundit and Hugh Hewitt. (H/T Brian Leiter)

Sotomayor Again Misstates Fundamental Rights Doctrine: As she did yesterday, Sotomayor asserted that a right is "fundamental" if it is "incorporated" against the states via the 14th Amendment rather than that a right is incorporated against the states if it is fundamental. She then claimed that Supreme Court precedent established that that the Second Amendment is not incorporated. This too is inaccurate. As Justice Scalia stated in Heller, the precedents refusing to apply the Second Amendment to the states (on which Sotomayor's panel relied in Maloney) did not address the modern "fundamental rights" doctrine. Judge Sotomayor's panel in the Second Circuit said nothing about the merits of the claim that the individual right to bear arms meets the modern test for identifying a fundamental right. Here is the relevant portion of the transcript
SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal — the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.

The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through — and others. But the — generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with — for us was a very narrow one. We recognized that Heller held — and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.
This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection of fundamental rights and an inaccurate statement of the precedents concerning the incorporation of the right to keep and bear arms into the Due Process Clause of the Constitution.

To be clear, a court COULD take the position, as did Judge Easterbrook in the Seventh Circuit, that a Circuit Court of Appeals is not entitled to consider the fundamentality of the right to keep and bear arms under modern Due Process Clause doctrine in light of the Supreme Court's ruling in Heller because Nineteenth Century precedent said that the Second Amendment does not apply to the states--even though those precedents implicitly involved the Privileges or Immunities Clause. But, unlike the Seventh Circuit, the Judge Sotomayor's panel simply ignored this issue altogether. And of course the Ninth Circuit did consider this modern doctrine and concluded that the right to bear arms IS fundamental.

Related Posts (on one page):

  1. Sotomayor Again Misstates Fundamental Rights Doctrine:
  2. Sotomayor (and Hatch & Feingold) on Fundamental Rights and the 14th Amendment:

More from Seidman on Sotomayor:

Elaborating on his strong words about Judge Sotomayor's hearing performance, Georgetown law professor Louis Michael Seidman writes:

I want to elaborate on some of the (perhaps intemperate) comments I made last night. There's no denying that Republicans on the committee put Judge Sotomayor in a difficult moral position, and I need not elaborate on their own culpability for doing so. Either Judge Sotomayor had to misrepresent what she knows judges (all judges, conservative and liberal) do in hard cases, or she had to risk defeat. I'm willing to concede that this is not an easy choice, but I nonetheless think that she made a serious mistake. To his tremendous credit, President Obama has made an effort in his public statements to shift the official ideology of judging so that it has some contact with reality. Yesterday, Judge Sotomayor explicitly repudiated the President. Here are some of the consequences of this kind of unilateral disarmament:

1. It means that the only people who end up on the Supreme Court are either naïfs or cynics.

2. It means that every official act that a justice takes deepens the corrosive cognitive dissonance between what she pretends to do and what she actually does. This kind of deep hypocrisy imposes psychic costs that, at some point, are bound to have an effect on decision-making.

3. Anyone who knows anything about law knows that the official version is a lie, but many Americans don't know anything about law. To them, the official version sounds plausible. Reinforcing that version has a terrible effect on the possibility of serious public deliberation about constitutional law.

The pity is that all of this was probably unnecessary. The Democrats have sixty votes in the Senate. It would have taken some courage for Judge Sotomayor to have told the truth, but not much. She said yesterday that judges should never decide cases out of fear. Yesterday, she testified out of fear. We have a right to expect better of her.

Radford University's Matthew J. Franck replies:

For my part I find the president's account of the role of "empathy" in judging to be alarming, and I would welcome Judge Sotomayor's repudiation of his arguments—if I believed her. Frankly, I don't.

I think I know what you mean by the "official version" of what judges do. I agree with you that "applying law to facts" is too simplistic to capture the nuances of what Felix Frankfurter called "judicial judgment." But if it's not where I would stop, it's not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Related Posts (on one page):

  1. More from Seidman on Sotomayor:
  2. Strong Words on Sotomayor:

Question for Sotomayor:

In his dissent in Plessy v. Ferguson, Justice John Marshall Harlan wrote, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Do you agree?

Ricci Testimony is Political Stunt: : On The Best of the Web, James Taranto questions the wisdom of the Senate Republicans' tactic of calling firefighter Frank Ricci as a witness in the Sotomayor hearing:
[H]aving a litigant testify against a judge who ruled against him is a political stunt that is likely to come back to haunt Republicans. Stuart Taylor of National Journal adduces evidence of procedural irregularities in the Second Circuit's handling of the Ricci case, and this is certainly worth the senators' time to explore.

But Ricci himself has no relevant expertise. The only thing his testimony may establish is that Sotomayor ruled against a sympathetic plaintiff. Sometimes that is a judge's job, as John Roberts explained during his confirmation hearing for chief justice:
If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution.
As far as we can tell, Ricci will be the first individual litigant to testify in a Supreme Court confirmation hearing. (During Samuel Alito's hearings, Democrats called a lawyer who argued that Alito should have recused himself from a client's case.)

The next time a Republican president nominates someone to the high court, it's hard to imagine that the Democratic witnesses won't include a parade of sympathetic litigants. And does anyone doubt that the Democrats will be more effective than the Republicans at such theatrics?/blockquote>

I've Inspired Poetry! I have never inspired poetry before but now Gerson Hepner, has posted on the Huffington Post a poem inspired by my Wall Street Journal article, The Seinfeld Hearings. It is called Islands of Rights, Seas of Powers, so I suppose it is actually inspired by Princeton Professor Stephen Macedo who coined that memorable imagery.
The land that's our land, rightly known as ours,
has power islands within seas of rights,
and rights in islands within seas of powers,
each barking orders in most unsoundbytes.

Judicial activists resist constraint,
while tyrannical majorities attempt
to sail on seas of power while they taint
rights with intentions Founders never meant.

Those who cannot do may try to teach,
and those who can't pass laws may use the bench
for hermeneutics that can overreach,
extrapolating rights laws don't entrench.

When we read texts we should interpret, not
impose interpretation on each clause
that weren't originally in the plot
conceived by Founders, writing rights and laws.

If we don't do this, we are implying
that the original, like "Seinfeld," merely
is about just nothing, not relying
upon old texts that we don't read sincerely.
I don't know poetry, but I know what I like. Very very cool. Thanks, Gerson!

Tuesday, July 14, 2009

Senator Feinstein and the Commerce Clause:

Senator Dianne Feinstein asked Judge Sotomayor about the federal government's Commerce Clause power today.

One question on the commerce clause in the Constitution. That clause, as you well know, is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples.

When I questioned now Chief Justice Roberts, I talked about how, for 60 years, the court did not strike down a single federal law for exceeding congressional power under the commerce clause.

In the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?

(emphasis added)

Either Senator Feinstein misspoke, or she needs better staff. In the last decade, the Supreme Court has only struck down a single federal statute for exceeding the scope of the federal commerce clause power. In United States v. Morrison (2000), the Court invalidated portions of the Violence Against Women Act. Given her reference to "protecting schools," I assume she meant to include the Court's 1995 decision in United States v. Lopez, but that only increases the number of cases to two in which the Court found Congress exceeded the scope of its Commerce Clause power.

I've spent some time pondering what Senator Feinstein could have meant when she said the Supreme Court had "struck down more than three dozen cases" under the Commerce Clause. Adding up all of the cases in which the Court found statutes exceeded all of the federal government's enumerated powers, including the sovereign immunity cases, the commandeering cases, and the 14th Amendment cases, in the last twenty years still doesn't get us to the three-dozen-plus cases Feinstein claimed. Add in the federalism-related constitutional avoidance cases, and we're still a ways off.

Maybe she meant to include dormant commerce clause cases as well — I haven't counted those — but that would have been an odd choice both because a) dormant commerce clause cases limit state, rather than federal, power; b) Congress may overrule dormant commerce clause decisions, and c) there are reasons to suspect the Court is becoming less aggressive at policing the dormant commerce clause. So I don't think she meant to include these cases, and even if she had, I still don't think it would get us to 36 cases in the past ten years. What am I missing?

UPDATE: It appears Senator Feinstein may have been relying upon (and misquoting) Cass Sunstien's misleading 2005 Harper's article, "Fighting the Supreme Court," as this is the source of the claim that the Rehnquist Court struck down more than three-dozen federal statutes from 1995-2005. Yet less than a third of these were on federalism grounds — that is commerce clause and anti-commandeering and 14th Amendment and sovereign immunity (a point Sen. Feinstein has apparently noted in other contexts). In terms of the three-dozen federal statutes, this also includes statutes invalidated on grounds ranging from the First Amendment (such as federal measures aimed at porn on the internet) to the violation of bicameralism and presentment (the Line-Item Veto Act), and, if carried forward to the present, would include decisions like Boumediene. Yet including the full range of cases undercuts the "conservative judicial activism" meme articulated by Sunstein and echoed (inaccurately) by Sen. Feinstein.

UPDATE: Michael Dorf notes other Senators who seemed to have a problem accurately stating the law.


The Still Missing Case of Connecticut v. AEP:

On June 7, 2006, the U.S. Court of Appeals for the Second Circuit heard oral argument in Connecticut v. American Electric Power, an action against major utilities seeking injunctive relief for their alleged contributions to the "public nuisance" of global climate change. Judge Sotomayor was on the three-judge panel that heard the case. In 2007, the Second Circuit panel requested supplemental briefing on the effect of Massachusetts v. EPA on Connecticut's claims. Those briefs were submitted in July 2007. It is now two years later, and the case has yet to issue.

Senator Grassley asked Judge Sotomayor about the missing case at today's hearing.

GRASSLEY: Since 2005, you have been a presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions.

Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months or nearly three times the average of the Second Circuit. Why, after four years, have you failed to issue a decision in this case?

SOTOMAYOR: The American Bar Association rule on code of conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for substantial a period of time in that decision, and it was that the Supreme Court was considering a case, a Massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.

Judge Sotomayor is undoubtedly correct that she cannot speak about a case that is still pending, and she may not be responsible for the interminable delay. It is worth noting, however, that the supplemental briefing to which she referred was submitted two years ago, and is hardly an excuse for the panel's poor conduct.


Human Rights Watch Goes to Saudi Arabia, UPDATE:

I blogged in June about a trip a delegation from Human Rights Watch took to Saudi Arabia, where Sarah Leah Whitson, director of HRW's Middle East and North Africa division, spoke at an event at which funds were raised for HRW. She highlighted HRW's work in Gaza, and HRW's battles with "pro-Israel pressure groups in the US, the European Union and the United Nations."

The piece, based on a story in Arab News (with a hat tip to the invaluable NGO Monitor), was reprinted today in the Wall Street Journal's This, in turn, was spotted by the Israeli Prime Minister's Office, as detailed by the Jerusalem Post:

In the opening shot of a battle Jerusalem has decided to wage with NGOs it deems biased against Israel, the Prime Minister's Office on Tuesday slammed a recent Human Rights Watch (HRW) fundraising delegation to Saudi Arabia as evidence the organization has lost its "moral compass."

"A human rights organization raising money in Saudi Arabia is like a women's rights group asking the Taliban for a donation," Prime Minister Binyamin Netanyahu's spokesman Mark Regev said Monday.

"If you can fundraise in Saudi Arabia, why not move on to Somalia, Libya and North Korea?" he said. "For an organization that claims to offer moral direction, it appears that Human Rights Watch has seriously lost its moral compass."

Ms. Whitson has responded, both in the Post and on in the comments on OpinionJournal, asserting that contrary to the impression left by the Arab News (which, she notes without irony, is subject to government censorship), she did criticize Saudi Arabia's abysmal human rights record in front of her Saudi audience. Perhaps Ms. Whitson will share a transcript of her remarks with us.

Meanwhile, Ms. Whitson acknowledges that the trip involved fundraising, and she says that HRW obtaining funding from Saudi Arabia is something to be "applauded." She also does not deny that her pitch involved trumpeting HRW's battles with what Arab News quotes her as calling "pro-Israel pressure groups in the US, the European Union and the United Nations."

For my part, if Ms. Whitson did indeed criticize Saudi human rights abuses during her trip, I apologize for suggesting otherwise. [Clarification: Whitson says that she "discussed" Saudi human rights problems during her trip, but doesn't state that she publicly mentioned any of them, much less criticized them, at the fundraising dinner at which she criticized Israel and its supporters, in front of "prominent members of Saudi society, human rights activists and dignitaries."] But I still think (a) it's extremely unwise for a human rights group to raise money in a totalitarian country, even from human rights advocates in that country; the organization may become dependent on that funding, which in turn could be cut off by the government at any time, creating pressure on the organization to downplay its criticisms of that country; (b) it's more than unwise for HRW to specifically raise money in Saudi Arabia by portraying itself as an organization doing battle with "pro-Israel forces," which implies that HRW is serving as an "anti-Israel force." This suggests either that HRW isn't concerned about its reputation for evenhandedness, or that it's so maniacally anti-Israel that its leaders just assume that being anti-Israel is somehow the obvious even-handed position that it embraces. This obviously plays into the hands of critics like myself who have previously accused HRW of a lack of objectivity with regard to Israel. I certainly can't imagine HRW going to Israel and raising money with the pitch that it is trying to counter-balance "pro-Arab" or "pro-Saudi" "pressure groups".

I'll close with a quote from commenter "Patrick" at the Opinion Juris blog (scroll down), with whom I rarely agree:

HRW pride themselves on being independent, but this raises two quasi-existential threats to them. First, the poisonous allure of Israel-bashing does sometime threaten to contaminate and devalue not only their other work, but the numerous legitimate criticisms that might be made of Israel. Secondly, I know that it is almost sweetest if rich Saudis can be convinced to fund HRW, but there is a real risk of giving very wrong impressions by soliciting same. HRW appear not to have so much managed that risk as blatantly embraced it.


Reflections on Day 2:

The second day of the Sotomayor confirmation hearing — the first in which she answered question — revealed relatively little. Judge Sotomayor played defense all day long — delivering cautious, deliberate answers to even the most pointed questions — under the (probably correct) assumption that if she said little of substance, she wouldn't give her opposition any footholds. She may have over done it — offering overly narrow (and sometimes inaccurate) explanations and defenses of her most controversial decisions and backing away from her public remarks to an implausible degree — but it has probably done the trick. I did not see anything today to cast her confirmation in doubt.

I've contributed additional thoughts to the Washington Post's "Topic A" (along with Randy Barnett, Erwin Chemerinsky, and Laurence Tribe).

UPDATE: I also have this essay on NRO discussing the efforts by some Senate Democrats to paint the Roberts Court as a radical right-wing court in their opening statements.

Related Posts (on one page):

  1. Reflections on Day 3:
  2. Reflections on Day 2:
  3. Reflections on Day 1:

Sotomayor Rejects "Empathy" Standard for Judging:

One of the more interesting parts of today's hearings was the following exchange between Judge Sotomayor and Senator Jon Kyl (R-AZ).

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95 percent of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

KYL: Right. Now, thank you for that.


Mike Seidman on Sotomayor: On the Federalist Society Online Debate on the Sotomayor hearings (click here and scroll down), my Georgetown Law colleague Mike Seidman--a cofounder and intellectual leader of the Critical Legal Studies movement in the 1980s--is brutally candid in his opinion of Judge Sotomayor's testimony today:
Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.
While I do not share Mike's view of law as radically indeterminate, I sure think it is a whole lot more underdeterminate than Judge Sotomayor made it out to be in her testimony today. Mike deserves much credit for speaking his mind about a continued refrain that really grated on me as well. One wonders what other law professors privately think about today's performance.

Update: I am not sure what the etiquette is for near simultaneous links to the exact same post. Should I, the second in time, (a) remove mine? (b) Edit it to eliminated the redundancy? Or (c) post this update wondering about what the etiquette is. I am going with (c).

Strong Words on Sotomayor:

From Part II of the Federalist Society's "Originally Speaking" Debate on the Sotomayor nomination:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

These are strong words for Sotomayor. So who wrote them? Ed Whelan? Wendy Long? No. Georgetown law professor Louis Michael Seidman.

UPDATE: Eva Rodriguez also comments on "Sotomayor's Unconvincing Backpedaling."

I've also just noticed Randy and I posted on Seidman's comments near simultaneously. Go figure. I suppose that just underscores how significant his comments are.

Related Posts (on one page):

  1. More from Seidman on Sotomayor:
  2. Strong Words on Sotomayor:

"All The World's A Stage, And All the Men and Women Merely Players":

From People v. Marinaro (Minn. Ct. App.) (some paragraph breaks added):

The Minnesota Clean Indoor Air Act prohibits smoking in numerous indoor public places, including bars and restaurants. But the act makes an exception for actors and actresses while they are engaged in theatrical performances. Thomas Eugene Marinaro, the proprietor of Tank's Bar in the city of Babbitt, sought to invoke that exception by organizing an event at which participants smoked cigarettes in his bar....

On March 14, 2008, the Babbitt Police Department conducted an investigation of reports of unlawful smoking at Tank's Bar after receiving complaints. Police Chief Terrance Switajewski sent Officer Trevor Lionberger to the bar in plain clothes to investigate. Officer Lionberger arrived at the bar at approximately 1:00 p.m. He saw a sign on the door stating that a theatrical performance of Gun SMOKE Monologues would occur every day, beginning at 3:00 p.m. and continuing until closing time. The sign described Gun SMOKE Monologues as a “Theatrical Performance and Satire Regarding the Minnesota Legislature and the Freedom to Breathe Act” and stated that smoking would occur during the performances. Officer Lionberger entered the bar, did not see anyone smoking, and left after a short time.

Officer Lionberger returned to the bar at approximately 2:55 p.m. After a few minutes, he saw that several customers were smoking cigarettes and wearing name tags that said, “Actor.” Although the barroom includes a stage, none of the smokers was on the stage. Officer Lionberger did not see any indicia of a typical theatrical performance. Officer Lionberger testified that the customers wearing “Actor” name tags appeared to behave no differently than bar customers ordinarily behave except for the fact that they were smoking cigarettes....

The district court concluded that no “theatrical performance” occurred on March 14, 2008, notwithstanding the labels attached by Marinaro to his customers' conduct, and notwithstanding some superficial similarities between the customers' conduct and a genuine theatrical performance. The district court's conclusion is consistent with common definitions of key words in the act. The word “performance” is defined as a “presentation before an audience,” The American Heritage College Dictionary 1034 (4th ed. 2007), or the “execution in a set or formal manner or with technical or artistic skill,” Webster’s New Int’l Dictionary 1818 (2d ed. 1946). The word “theatrical” is defined as “[of], relating to, or suitable for dramatic performance or the theater,” The American Heritage College Dictionary 1428 (4th ed. 2007), or pertaining to “dramatic representations,” Webster’s New Int’l Dictionary 2617 (2d ed. 1946). In light of its findings of fact, the district court did not err in its interpretation of the theatrical-performance exception to the act's smoking ban.

The particular facts of this case do not present a close question because Gun SMOKE Monologues, in its objective manifestations, had little resemblance to a genuine theatrical performance....

For more, including the district court's reasoning (which the court of appeals largely endorses), see the opinion.


Sotomayor (and Hatch & Feingold) on Fundamental Rights and the 14th Amendment: I have posted the following on the's "Topic A" commentary on today's hearings:
One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental. When asked how she understands the criteria by which the court concludes that a right is fundamental, she did not give a substantive response. Then, when Hatch asked her about the difference between nineteenth century precedent involving the privileges or immunities clause and the twentieth century cases involving the due process clause, she said she did not recall the cases well enough to address the difference. Indeed, in the per curium opinion she joined in Maloney, the panel did not address this crucial issue, in contrast with panels in the 9th and 7th Circuits.

In fairness, Hatch's questions were themselves both confused and confusing to anyone who did not know what he was trying to say. At one juncture, for example, he repeatedly referred to "the privileges AND immunities clause" (which is in Article IV of the constitution) and contrasted it with the fourteenth amendment. He seemed to be unaware that there is a privileges OR immunities clause in the fourteenth amendment itself, which the cases he was citing were about. However, I would have hoped that Sotomayor would have understood these cases -- which she had relied upon in her Maloney opinion -- as well as the discussion of this issue in the Supreme Court case of D.C. v. Heller well enough to have educated Hatch, as well as the rest of us, on this important aspect of Supreme Court doctrine.

As it stands, we know next to nothing about her understanding of this area. Hopefully, she will be given an opportunity to revisit this issue in future questioning and will elaborate on her views of how the fourteenth amendment protects liberty.
Here is her characterization of a "fundamental right":
SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So in -- to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are -- they have been deemed fundamental, as that term is understood legally.
Here is the exchange that immediately preceded the previous answer in which she is asked to explain the criteria by which a right is deemed to be fundamental:
HATCH: Well, what's ... excuse me, I'm sorry. I didn't mean to interrupt you.

What's your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I'm not asking a hypothetical here. I'm only asking about what the Supreme Court has said in the past on this question. I recall (inaudible) emphasizing that a right must be deeply rooted in our nation's history and tradition, that it is necessary to an Anglo- American regime of ordered liberty, or that it is an enduring American tradition.

I think I've cited that pretty accurately on what the court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court's decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental?

SOTOMAYOR: The Supreme Court's decision with respect to the Second Circuit incorporation -- Second Amendment incorporation doctrine is reliant on old precedent of the court, and I don't mean to use that as precedent that doesn't bind when I call it old. I'm talking about precedent that was passed in the 19th century.

Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not, I haven't examined that framework in a while to know if that language is precise or not. I'm not suggesting it's not, Senator. I just can't affirm that description.

SOTOMAYOR; My point is, however, that once there's Supreme Court precedent directly on point, and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word "fundamental," then my panel, which was unanimous on this point -- there were two other judges -- and at least one other -- or one other panel on the Seventh Circuit by Justice -- by Justice -- by Judge Easterbrook has agreed that, once you have settled precedent in an area, then, on a precise question, then the Supreme Court has to look at that.

And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the Supreme Court will do.
I just listened to an exchange on the same topic with Senator Russ Feingold, which left me with 2 impressions. First, Feingold was much more articulate about the constitutional questions than was Orren Hatch. And, second, Sotomayor is giving entirely nonanswer answers to every substantive question she is asked. Here is her response to a question about a line of cases:
FEINGOLD: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues.

The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.
Hmmm. Very interesting. Here is Feingold trying to get her understanding of the general approach to incorportion:
FEINGOLD: But what would be the general test for incorporation?


FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...


SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.
The last part of her answer may be my favorite response so far in the hearing. To this point, it is impossible to tell from her responses whether she knows anything about constitutional law OR whether she simply does not want to offer any opinions that could possibly be criticized. I do not recall a confirmation hearings in which so little of substance is revealed by a nominee.

Related Posts (on one page):

  1. Sotomayor Again Misstates Fundamental Rights Doctrine:
  2. Sotomayor (and Hatch & Feingold) on Fundamental Rights and the 14th Amendment:

Sotomayor's Testimony on the Didden Case:

In the same exchange with Senator Grassley where she misstated the holding of Kelo v. City of New London, Judge Sotomayor also defended her ruling in the controversial Didden case, where her Second Circuit Court of Appeals panel ruled that it was constitutionally permissible for a state to condemn property because the owners had refused developer Greg Wasser's demand to pay him $800,000 or give him a 50% stake in their business, threatening to have the property condemned if they did not comply. As I have argued in the past, this is precisely the sort of "pretextual" taking that even the Supreme Court majority in Kelo considered to be unconstitutional.

Responding to Grassley's questions, Judge Sotomayor claimed that the ruling was unexceptionable because it was based purely on the property owners' failure to file their case within the three year period required by the statute of limitations. Nothing to see here, let's just move on.

There are two serious problems with this explanation. First, Sotomayor's panel clearly addressed the substantive constitutional issue as well, ruling that "even if Appellants' claims were not time-barred, to the extent that they assert that the Takings Clause prevents the State from condemning their property for a private use within a redevelopment district, regardless of whether they have been provided with just compensation, the recent Supreme Court decision in Kelo v. City of New London . . . obliges us to conclude that they have articulated no basis upon which relief can be granted." Didden v. Village of Port Chester, 173 Fed. Appx. 931, 933 (2d Cir. 2006) (emphasis added). Thus, even if Sotomayor was right about the statute of limitations question, she still made a seriously flawed ruling on the far more important constitutional issue.

Second, as I explained in this amicus brief (pp. 14-16) coauthored with several other property scholars, the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question. The court had ruled that the three year statute of limitations expired in 2002, three years after the declaration of the 1999 redevelopment plan that gave the city the authority to use eminent domain in the area. But the plaintiffs' property was not condemned at that time and Wasser did not make his extortionate threats until November 2003, after which their property was almost immediately condemned.

Until that time, it was impossible to file a pretextual taking claim because no pretextual taking had yet occurred or even been threatened. Judge Sotomayor’s panel ruled that Bart Didden and Dominick Bologna’s case was time-barred because she assumed that there is no legal difference between the mere declaration of a redevelopment area and the use of condemnation for purposes of extortion. The panel’s seemingly technical procedural ruling was actually based on a serious substantive error about the law of pretextual takings, as described in Kelo.

The second point described above is probably too complex to discuss in detail in a televised hearing with strict time limits (though I do discuss it in my written testimony to the Judiciary Committee). For nonexperts, the important point to remember is the first one: Sotomayor's panel ruled on the constitutional property rights issue as well, not just the technical statute of limitations question.


I Am Apparently "So Desperate for [Ann Bartow's] Attention,"

according to Prof. Bartow herself. Her evidence: (1) I posted to respond to her criticism of the UCLA Law Review symposium (which I helped organize), and again to her "coincidence" post. (2) "[T]he flurry of private e-mails [I] instigated" — that refers to an e-mail I sent her to mention the post in item 1 above, followed by her e-mail response, my reaction, and so on for several more e-mails. (I can't say much more about that exchange because she was unwilling to agree to my posting the arguments she made in her messages, and my view is that private e-mail generally shouldn't be quoted over the author's objection absent something egregious in that e-mail.) (3) My comment on her blog, responding to her post (the one I criticize here).

Now I would think that there's a simple explanation for each of the items: (1) Prof. Bartow's arguments struck me as unsound, and unsound in a way that is generally worth exposing — plus, as to her first post, I felt a particular reason to defend the symposium she criticized, since I helped invite the participants. (2) I thought that e-mailing Prof. Bartow about my criticism would be seen as a welcome or at least acceptable heads-up, plus I thought she might say something interesting in response. (3) I thought Prof. Bartow's later post was wrong or at least misleading, and I wanted to alert readers of her post to that error.

And yet this sort of behavior — which I would have thought was perfectly normal, and quite acceptable in scholarly society — strikes Prof. Bartow as "very odd," and a sign that I am "so desperate for [her] attention." OK, then.

UPDATE: Oops, fixed a typo of mine ("Desparate") in the post title.


Another Sotomayor Misstatement of Kelo:

In response to questions posed by Republican Senator Charles Grassley, Judge Sotomayor made another misstatement about Kelo v. City of New London:

[T]he issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the — the takings clause of the Constitution that requires the payment of just compensation when something is — is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding as I understood it in Kelo was a question addressed to that issue.

The problem with this answer is that Kelo didn't simply hold that the state could "contract with a private developer to effect the public purpose" justifying a taking. It held that the state could actually transfer ownership of the land to a private party and that this was a constitutionally permissible "public use" if done for the purpose of promoting "economic development." This is very different from simply hiring a private contractor to do work on public land, such as hiring a private construction firm to build a publicly owned bridge on government-owned land. Moreover, the "contract" metaphor is misleading, since the new private owners of condemned land in Kelo and other similar cases were not legally required by contract (or anything else) to actually provide any "economic development" - the "public purpose" that supposedly justified the condemnations in the first place (I cover this point in detail in this article, pp. 193-97).

The fact that Kelo allows the transfer of ownership to private parties who have no contractual obligation to provide economic development in exchange makes the case very different from merely "contracting with a private developer to effect the public purpose." If the private interest gets full ownership of the condemned land and does not have to provide any economic development in return, the risks of abuse are far greater than if a private entity is merely hired to do work on publicly owned land that it has a contractual obligation to perform.


Pro Bono Free Speech Case:

I'm glad to say I have an interesting pro bono case — a petition for further review by the Nebraska Supreme Court in State v. Drahota (Neb. Ct. App. June 16). Here's the petition, which was just filed yesterday, with some of the formatting details omitted; hope you find it interesting. Please note that the petition went right up to the 10-page limit allowed for such petitions, so that it's necessarily terse on some matters. Also, this is a petition for discretionary review by the state supreme court, and the goal is to persuade that court that the case is worth hearing. If the Nebraska Supreme Court agrees to hear the case, then I'll write a brief that focuses solely on the merits.


In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.

Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please consider this email a request that you not contact me again for the purpose of spilling more vile [sic].” Drahota responded with an apology.

Four months later, Drahota sent two more e-mails to Avery, this time from the address “” In the first, Drahota wrote concerning the death of an Iraqi terrorist, and asked Avery: “Does that make you sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq? . . . You . . . and the ACLU should have a token funeral to say goodbye to a dear friend of your anti-american sentiments.” The second had the subject line “traitor,” and read, in relevant part,

I have a friend in Iraq that I told all about you and he referred to you as a Benedict Arnold. I told him that fit you very well. . . . I’d like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . Let’s do nothing to Iran, let them get nukes, and then let them bomb U.S. cities and after that, we will just keep turning the other cheek. Remember that Libs like yourself are the lowest form of life on this planet[.]
After a bench trial, Drahota was convicted of breach of the peace. The Court of Appeals affirmed the conviction, based solely on the last two e-mails. 17 Neb. App. at 685, 687.


I. The Importance Of This Constitutional Precedent Warrants Review By This Court

The decision below sets an important precedent, in Nebraska and elsewhere, that sharply limits the constitutional protection for political speech. It appears to be the first published decision allowing criminal punishment for nonthreatening but insulting politically themed speech to an elected official or candidate for office. Prosecutors throughout Nebraska and the country will now be more likely to conclude that such speech could indeed lead to a prosecution. And citizens throughout the country will now be rightly concerned that their critical e-mails to government officials and political candidates will lead to criminal prosecution if a prosecutor concludes the e-mails contain “epithets” (even clearly political ones such as “traitor”) or “personal abuse.”


Sotomayor's Misstatement of Kelo:

During the confirmation hearings today, Judge Sotomayor considerably misstated of the holding of Kelo v. City of New London, making the decision seem more limited than it actually was. In response to questioning by Democratic Senator Herb Kohl, Sotomayor refused to reveal her view of Kelo, a standard tactic used by previous Supreme Court nominees, but also incorrectly claimed that Kelo upheld a taking in an "economically blighted area":

KOHL: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a — that it was constitutional for local government to seize private property for private economic development.

Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O'Connor, under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," unquote.

This decision was a major shift in the law. It said that private development was a permissible, quote, "public use," according to the Fifth Amendment, as long as it provided economic growth for the community.

What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, "public use" for condemning private property?

SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public — a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate. [emphasis added].

In reality, both sides in the Kelo litigation agreed that the area in question was not blighted. As Justice John Paul Stevens noted in his majority opinion for the Court, "There is no allegation that any of these properties [that were condemned] is blighted or otherwise in poor condition," and "[t]hose who govern the City [of New London] were not confronted with the need to remove blight in the Fort Trumbull area" where the condemned properties were located. That's what made the Kelo case distinctive: it addressed the question of whether property could be condemned and transferred from one private owner to another solely for purposes of "economic development" in a nonblighted area. The Supreme Court had already ruled that private-to-private condemnations in a blighted area are permissible in the 1954 case of Berman v. Parker. As I have explained elsewhere, Berman led to numerous abuses, including the condemnation of property under statutes that define "blight" so broadly that almost any area can be condemned. The issue addressed in Kelo went beyond this, however, because there was no allegation of blight in the case, even under Connecticut's broad definition thereof. Sotomayor's misstatement of Kelo's holding is somewhat surprising, given that she was surely prepared to answer questions about her own controversial ruling applying Kelo in the Didden case.

On the other hand, Senator Kohl was probably wrong to suggest that Kelo was "a major shift in the law." Berman and Hawaii Housing Authority v. Midkiff had already defined "public use" so broadly that virtually any nonpretextual taking was considered permissible, a point I discussed here (pp. 224-25). That said, I am very happy that this issue was raised by a liberal Democratic senator and that he expressed strong disagreement with the Court's holding. For reasons I outline in this article, I don't think that constitutional property rights will ever get more than minimal protection until liberal Democratic jurists as well as conservative Republican ones come to support them. Kohl's comments, like the broad political backlash against Kelo, which included numerous liberals and Democrats, represent a step in the right direction.

UPDATE: I should note that the stipulation by both sides that the land was not blighted is a factual determination that the courts were required to respect. In addition, it is important to emphasize that a "blight" determination is a legal term in property law. IN order to get an area designated as blighted, local governments must go through a special procedure under state law. Thus, it is not true, as some commentators claim, that the Court's recognition of the City's belief that the area was "economically distressed" enough to need "redevelopment" is essentially the same thing as a blight declaration. Economic "distress" has no legal significance in takings law and there are no formal criteria for declaring an area to be "distressed." Most importantly, the Court did not require that economic development takings only be undertaken in "distressed" areas. Rather Kelo permits economic development takings in any area, regardless of its prior economic condition.


Coincidence? You Be the Judge:

An interesting post from a law professor blog, written by a professor who teaches in South Carolina:

South Carolina’s state govt is only the fifth most dysfunctional state govt in the nation

At least according to this article, which claims the six states with the worst leadership are:

6. California
5. South Carolina
4. Alaska
3. Illinois
2. Nevada
1. New York

I’m sure the fact that we have the fewest women in state government in the nation is only a coincidence.

It's often difficult to tell whether a post is serious or sarcastic, but here the last sentence seems pretty clearly sarcastic -- and it doesn't hurt that the "Posted in" links below include "Yep, sarcasm" (as well as "Feminism and Politics" and "The Underrepresentation of Women"). So I take it that the assertion is that it's not a coincidence that South Carolina has both dysfunctional state government and a low number of women in state government.

As it happens, though, the very item that the post links to helps check that assertion; we can see the rankings along the women-in-state-government metric for each of the six states, and not just South Carolina. Here they are: New York is #22; Nevada is #12; Illinois is #17; Alaska is #27; South Carolina is #50; California is #15. The average is just a titch below #25. Likewise, if one averages together the percentages of women in the state legislature in those six states, one gets 23.83%, almost indistinguishable from the nationwide 23.5% average.

Naturally, it's possible that other data that's out there does show that some correlation between dysfunctional government and a low number of women in government. Perhaps it might even show causation; who knows? But the data that the post links to -- if one looks at all six states, and not just the fifth state of those six -- shows no correlation at all.


That CIA Had Plans to Kill or Capture Bin Laden Was Public Knowledge.

Today at NRO, Andrew McCarthy comments on the revelation that the CIA was plotting to kill Osama Bin Laden.

Yet the existence of a CIA program to capture or kill Bin Laden was public knowledge. Iraq-War critic Michael Scheuer, who ran the Bin Laden tracking desk at CIA, talked widely about it. Buzz Patterson in his book Dereliction of Duty tells one particularly disturbing story. In 1998 when Bin Laden had been located by the CIA and the US had a 2-hour window to kill him, Sandy Berger was waiting in the Situation Room in the White House for an OK to send a Tomahawk missile to try to kill Bin Laden. But President Clinton was too indecisive to act.

Clinton defended his actions to get Bin Laden, saying in 2002 that during his administration, we trained people to kill Osama:

Now, if you look back - in the hindsight of history, everybody's got 20/20 vision - the real issue is should we have attacked the al-Qaeda network in 1999 or in 2000 in Afghanistan.

Here's the problem. Before September 11 we would have had no support for it - no allied support and no basing rights. So we actually trained to do this. I actually trained people to do this. We trained people.

But in order to do it, we would have had to take them in on attack helicopters 900 miles from the nearest boat - maybe illegally violating the airspace of people if they wouldn't give us approval. And we would have had to do a refueling stop.

That there was extensive planning within the CIA to capture or kill Osama was so well known that I blogged about it in 2005:

The latest set of lawyers' restrictions to be alleged grew out of a plan to capture Bin Laden. So great was the lawyers' concern for Bin Laden's comfort that a special chair was built to hold him and they were concerned whether the tape used to hold him would hurt his beard. This latest nonsense was revealed by the man who for 10 years headed the CIA's desk tracking Bin Laden, Michael Scheuer, interviewed by Nora O'Donnell on Hardball. . . .

But we had at least eight to 10 chances to capture or kill Osama bin Laden in 1998 and 1999. And the government on all occasions decided that the information was not good enough to act. . . .

The U.S. intelligence community is palsied by lawyers.

When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden‘s safety and his comfort than they were with the officers charged with capturing him. We had to build an ergonomically designed chair to put him in, special comfort in terms of how he was shackled into the chair. They even worried about what kind of tape to gag him with so it wouldn‘t irritate his beard. The lawyers are the bane of the intelligence community.

Here are Andrew McCarthy's views about the current flap:

Democrats have trumped up a charge that the CIA, on the orders of Vice President Dick Cheney, failed to notify Congress that it was contemplating — not implementing, but essentially brainstorming about — plans to kill or capture top al-Qaeda figures.

This is their most ludicrous gambit in a long time — and that’s saying something. Given their eight years of complaints about President Bush’s failure to kill or capture Osama bin Laden, and given President Clinton’s indignant insistence (against the weight of the evidence) that he absolutely wanted the CIA to kill bin Laden, one is moved to ask: What did Democrats think the CIA was doing for the last eight years?

And if Democrats did not believe the CIA was considering plans to kill or capture bin Laden, why weren’t they screaming from the rafters about such a lapse?

Certainly the existence of a CIA program to capture or kill Bin Laden was well known since late 2001. Of course, that does not mean that Congress was adequately briefed on what that program entailed or how it might have differed from the program that was publicly known.

UPDATE: Today's Washington Post has a bit more, but not much:

Some details about the CIA's newly disclosed program were first described in an article on the Wall Street Journal's Web site Sunday night. Yesterday, former and current intelligence officials characterized the initiative as a series of discrete attempts to locate and kill bin Laden and his top deputies as new leads surfaced about their possible whereabouts. Bin Laden is believed to be living in a rugged area along the Afghanistan-Pakistan border.

U.S. officials have said they think bin Laden is in Pakistan, so any attempt to kill him using ground forces probably would require an incursion into Pakistani territory.

One current intelligence official said the program was always small, but over time the agency considered different approaches that took advantage of evolving technical capabilities. Options were being actively weighed as recently as this spring, said the official, who added that Panetta learned of the program during a briefing that described new CIA proposals for going after bin Laden.

The CIA Plan to Kill Al Qaeda Leaders:

I see that I'm quoted by Mark Mazetti and Scott Shane in their New York Times article today, CIA Had Plan to Assassinate Qaeda Leaders (July 13, 2009). I'm trying hard to maintain radio silence and not blog to let my shoulder heal up, but let me say something very brief about this.

First, I'm delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren't, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren't trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, "Targeted Killing in US Counterterrorism and Law.")

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. - what we might call the international "soft law" crowd - the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has - correctly in my view, for strategic, legal, and humanitarian reasons - embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration's international legal apparatus is highly sympathetic to the "soft law" position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to. It is important for the administration to keep in mind that the US will eventually face different terrorist enemies - there is, so to speak, life - and death - after Al Qaeda.

The paper is concerned with defending the US legal space for targeted killing undertaken as self defense, but not within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I'll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I'm trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and ... Exeunt Left. Or possibly exit right.


Reflections on Day 1:

Yesterday's opening session of the Sotomayor hearings did not reveal much about the nominee, but may have previewed each side's strategy: Democrats will stress her biography and experience; Republicans will raise concerns about specific cases and quotes, but reserve judgment. I contributed additional analysis to the Washington Post's "Opening Arguments" blog here.

On thing that was interesting yesterday was how much time Democratic Senators spent talking about (and criticizing) Chief Justice Roberts and the current Supreme Court. (A point Jim Geraghty makes here.) Senator Charles Schumer, for instance, declared "any objective review of Judge Sotomayor's record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court." Senator Sheldon Whitehouse (D-RI) cited Jeffrey Toobin's New Yorker profile of Roberts to challenge his judicial humility and modesty. Yet as I blogged several weeks back, Toobin's article presents a distorted view of Roberts' record. Sen. Whitehouse also decried the alleged "fundamental changes in the law wrought by the Roberts Court's right wing flank." Yet as I've discussed time and again (see here and here, for instance) the Roberts Court's "right wing flank" has not wrought dramatic changes in the law (at least not yet).

UPDATE: Carissa Hessick further critiques the Toobin claim relied upon by Sen. Whitehouse here.

Related Posts (on one page):

  1. Reflections on Day 3:
  2. Reflections on Day 2:
  3. Reflections on Day 1:

Guide for Submitting Articles to Law Reviews: Law Professors Allen Rostron and Nancy Levit have posted "Information for Submitting Articles to Law Reviews & Journals" for downloading on SSRN. Here is the Abstract:
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers about 188 law reviews. The document was fully updated on June 9, 2009.
[H/T Brian Leiter]

Is the Constitution Libertarian? That is the question I addressed in my B. Kenneth Simon Lecture at the Cato Institute last September on Constitution Day. I have now posted the article by the same name that will appear in the Cato Supreme Court Reporter here on SSRN for downloading. Here is the abstract:
Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the liberties of the people - and even enslave their own people - subject only to their own constitutions. The constitutional protection of individual liberty was substantially enhanced by adoption of the Thirteenth and Fourteenth Amendments, which abolished slavery and extended the power of the federal courts and Congress to protect the rights if individuals from violation by state governments. Libertarianism has much less to say about either the conduct of foreign policy or the proper institutional allocation of foreign policy powers (though some libertarians mistakenly accord to foreign states a sovereignty that properly belongs only to individuals). Perhaps not coincidentally, the Constitution provides few constraints on the foreign policy decisions of the political branches, or on the allocation of power between them.
To answer the question, "Is the Constitution Libertarian?," I had to discuss what is meant by "libertarian" as well as address some misconceptions about libertarianism made even by some libertarians.

Should California Be Broken Up?

By now, almost everyone agrees that California government is seriously dysfunctional. The state suffers from a grave fiscal crisis, extraordinarily high taxation (which, however, is still not enough to finance the state's exorbitant spending), overregulation, and numerous other problems. "Governator" Arnold Schwarzenegger has been no more able to curb these tendencies than his much-reviled Democratic predecessor, Gray Davis. Steven Greenhut suggests that California's problems are structural, not merely the result of bad decisions by individual politicians. He argues that the Golden State's people would be better off if it was broken up into three or four separate smaller states. The idea of partitioning California is not a new one; but it has never been more timely. While I don't necessarily endorse Greenhut's specific proposal, I do agree with the general argument that California's problems stem partly from its excessive size. With some 38 million people, California has about one-eighth of the nation's population.

Normally, the ability to "vote with your feet" is one of the strongest checks on dysfunctional state policies, a point John McGinnis and I discussed in this article. If a state government has poor economic policies, excessive taxes, or bad public services, taxpayers will tend to migrate elsewhere, putting pressure on the state to clean up its act. That, for example, is what happened with my own home state of Massachusetts when it lost population to southern and western states in the 1970s and early 80s. Even if the poorly performing state government doesn't shape up, at least migration will reduce the number of people who have to put up with it.

California has been largely insulated from foot-voting pressure because of its huge size, and the way in which it monopolizes most of the desirable parts of the US West Coast. Because of these geographic advantages, the cost of leaving California is often much higher than that of leaving most other states. As a result, Californians have had to put up with more abuse than most other state governments could get away with.

If California were divided into three or four smaller states, the cost of exit would be lower, and the new states would have strong incentives to compete with each other for people and businesses. Foot-voting would be a far more viable option. Of course we wouldn't want states that are too small to exploit economies of scale. However, each of the new states would probably have some 8 to 14 million people, more than such medium-size states as Virginia, Washington, Indiana, and Massachusetts, which few if any believe to be too small.

In recent years, the situation in California has gotten to be so bad that people really are starting to leave; the state has had more out-migration than in-migration for each of the last four years. But the numbers leaving are still small relative to the total population of the state.

Dividing California would accelerate this trend. Moreover, it is likely that at least one or two of the newly formed states would almost immediately have far better policies than today's California. Thus, millions of people would get to live under better policies without having to move at all.

There are various practical obstacles to a successful partition plan. For example, the new states would need to find a way to divide up California's enormous public debt. In addition, the Constitution forbids partitioning a state without its consent, which probably means that the current California legislature would have to agree to any partition. Despite these problems, the idea is at least worth considering.


Monday, July 13, 2009

Armed Self-Defense Isn't Supposed To Be "Sport":

If you want to see why gun rights supporters are worried that their rights are under siege -- even by laws that don't actually prohibit the possession of guns for armed self-defense -- see San Francisco Police Code § 613.10:

In addition to all other requirements and conditions stated in this Article, each license [to sell firearms or ammunition] shall be subject to all of the following conditions, the breach of any of which shall be sufficient cause for revocation of the license by the Chief of Police: ...

(g) The licensee shall not sell, lease or otherwise transfer to any person any ammunition that:

(1) Serves no sporting purpose;

(2) Is designed to expand upon impact and utilize the jacket, shot or materials embedded within the jacket or shot to project or disperse barbs or other objects that are intended to increase the damage to a human body or other target (including, but not limited to, Winchester Black Talon, Speer Gold Dot, Federal Hydra-Shok, Hornady XTP, Eldorado Starfire, Hollow Point Ammunition and Remington Golden Sabre ammunition; or

(3) Is designed to fragment upon impact (including, but not limited to, Black Rhino bullets and Glaser Safety Slugs).

Many people don't want guns for "sporting" purposes. They want them to defend their and their family's lives. Why should the usability of ammunition for "sport[]" -- which presumably means hunting and perhaps competitive target-shooting (I don't include noncompetitive target-shooting, since all ammunition would serve that purpose) -- be relevant here?

Now I should acknowledge that the ordinance would still let people possess a good deal of defensive ammunition, since much of the ammunition that's used for hunting and competitive target-shooting is also useful for self-defense. A lawsuit challenging the ordinance -- brought by noted California gun lawyer Chuck Michel and by Don Kates, a lawyer who has also written many important articles on the Second Amendment -- argues (pp. 12-13) that the some of the specifically banned ammunition actually is especially useful for self-defense; but that's not my main point here.

Rather, my point is how the ordinance seems to deliberately marginalize defensive purposes for gun ownership. Sporting purposes are labeled legitimate, and other purposes, including defensive ones, are labeled illegitimate.

And of course if that is broadly done and broadly accepted -- once people buy into the notion that the legitimacy of gun use rests on its "sporting" applications -- further steps towards broader gun and ammunition bans become much easier. After all, the only thing that would be at stake in such bans would be "sport"; how can that measure up against the supposed crime-fighting (or even accident-fighting) benefits of gun control? Why not require that all guns and ammunition be stored at the range or at the hunting lodge, and never at home? Why not even ban the sport altogether, in the interests of saving lives?

So long as gun control proponents talk solely about "sporting purposes," and don't even acknowledge the legitimacy of defensive purposes, it's hard to take seriously the claims that law abiding citizens' rights to own guns in self-defense are safe, and that the only goal is supposedly "reasonable gun control" rather than broad gun bans.

By the way, such sporting purposes talk has been common among many supporters of restrictions on guns (e.g., Sarah Brady), and such provisions are present in various other statutes as well; I highlight the San Francisco ordinance since it categorically applies to all ammunition -- including that used for ordinary self-defense purposes -- and not just to specific subcategories of weapons or reecipients (see, e.g., 18 U.S.C. § 921(a)(4)(B)).


My Op ed On the Property Rights Implications of Judge Sotomayor's Decision in Didden v. Village of Port Chester:

The Orange County Register recently published my op ed on the troubling implications of Judge Sotomayor's ruling in Didden v. Village of Port Chester:

It's not easy for a judge to undermine property rights further than the Supreme Court did in 2005 in Kelo v. City of New London, Conn. But Judge Sonia Sotomayor, who is scheduled to begin Senate cofirmation hearings today on her nomination to the high court, succeeded. In the 2006 case of Didden v. Village of Port Chester she signed on to perhaps the worst federal court property rights decision in recent memory.

In Kelo the court held that the government can condemn a person's property and transfer it to someone else in order to promote economic development. In Didden, Judge Sotomayor's federal appellate-court panel went further, upholding the government's condemnation of property after the owners refused to pay extortion money to a politically influential private developer.

In 1999 the village of Port Chester, N.Y., established a "redevelopment area," giving designated developer Gregg Wasser a virtual blank check to condemn property within the area. When local property owners Bart Didden and Dominick Bologna sought a permit to build a CVS pharmacy in the area, Wasser demanded that they pay him $800,000 or give him a 50 percent partnership interest in the store, threatening to have their land condemned if they said no. They refused, and a day later the village condemned their property.

Didden and Bologna challenged the condemnation on the ground that it was not for a "public use," as the Constitution's Fifth Amendment requires. Their argument was simple and compelling: Extortion for the benefit of a private party is not a public use. In a short, cursory opinion, Sotomayor's panel upheld the condemnation.

Although based partly on Kelo's very broad definition of "public use," the Didden ruling extended the term beyond what Justice John Paul Stevens had in Kelo. In particular, Stevens had noted that "the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit," was not enough to count as a "public use." As an example of such an unconstitutional pretextual taking, he cited a case with far less egregious facts than Didden....

Kelo was a 5-4 decision, denounced by many on both left and right. The next few Supreme Court nominees could well determine whether it is overruled – or is expanded to weaken property rights even further. Under the guise of "redevelopment," local governments across the country often condemn property for the purpose of transferring it to politically favored interests. Since World War II, hundreds of thousands have lost their homes. Usually, those displaced are poor, minorities or the politically weak – a point emphasized by the NAACP in its amicus brief in Kelo. The stakes here are very high.

Judge Sotomayor's ruling in Didden suggests that she would uphold even the most abusive condemnations, taking the court even further in the same misguided direction.

Probably because of space constraints, the editors cut most of my discussion of claims that Didden was correctly decided because the property owners failed to file their case on time or because Gregg Wasser had a conflicting account of the facts. The statute of limitations issue is ultimately a sideshow because the panel clearly resolved the constitutional claim as well, and because the the two were in fact inextricably connected (points I addressed in more detail here). Wasser's alternative account of the facts is also irrelevant because Sotomayor's panel was legally required to assume the truth of Didden and Bologna's version of events, and because Wasser's version doesn't actually undermine the plaintiffs' claims that he used the threat of eminent domain as leverage for extortion.


So Much for Academic Freedom:

Inside Higher Ed has a story about the ongoing controversy over Thio Li-ann of the National University of Singapore, who will be teaching International Human Rights at NYU as a visitor this Fall. As IHE report, she is an "outspoken opponent of gay rights. Thio has argued repeatedly and graphically that her country should continue to criminalize gay sexual acts."

Cary Nelson, national president of the American Association of University Professors, said that he would not advise NYU to rescind the invitation to Thio to teach there. But he said that it would be legitimate to raise questions about whether she should be teaching human rights.

"Academic freedom protects you from retaliation for your extramural remarks, but it does not protect you from being prohibited from teaching in an area where you are not professionally competent, and there are doubts on whether she has the competency in human rights," Nelson said. He said that there is in fact an "international consensus, save a few countries like Iran" that gay people should not be treated as criminals.

What a bizarre and disturbing comment to come from the AAUP president, whose professional obligation is to be a spokesperson for academic freedom! He's suggesting that if a professor disagrees with the "international consensus" on a particular narrow issue within a much broader field, that professor should be deemed incompetent to teach in that field.

By this logic, just for example, a professor who has that Israeli settlements in the West Bank are legal under international (such as the late Yale Law School professor Eugene Rostow) law would not be permitted to teach international law; a professor who doubts that human activities are playing a significant role in global climate change would not be permitted to teach international environmental law, among other things; and a professor who disagrees with various national constitutions and international conventions guaranteeing "positive rights" (to shelter, food, jobs, etc.) could be deemed on that basis incompetent to teach a range of related subjects. This principle would extend beyond international law. Perhaps feminist professors who think that all heterosexual sex amounts to rape should be banned from teaching classes on gender-related issues, given that this is strongly contrary to international consensus. And all this regardless, apparently, of how these issues are treated in the classroom, including whether the professor acknowledges that his positions are a minority in the field, or, for that matter, whether the professor discusses his own positions in class at all, or just teaches the current status of the debate and the law.

Most likely, what Nelson is really thinking is that Thio is a bigot, but since he can't come out and say that bigots shouldn't be allowed to teach (because the next thing you know, the logic will be extended to Communists and other left-wing radicals), he instead pretends that the argument is over Thio's "competency." But surely it can't be the case that only people who agree with the current "international consensus" on one particular issue in the human rights field are competent to teach about human rights law (she is not, after all, being hired as an advocate for modern human rights law).

I think it much more honest and appropriate to keep the debate honest: is the fact that someone thinks that homosexual acts are immoral and perverse, and should be illegal (at least in her home country) sufficient grounds to disinvite her (or not invite her to begin with) to teach in her subject area, assuming she otherwise has the relevant expertise?* (Note, however, that most critics of NYU's decision to invite Thio are not requesting that the invitation be revoked).

UPDATE: I should have including more of Nelson's remarks, which make his views sound even worse:

Nelson also said that in a tenure decision, he would judge a candidate — however offensive his or her views on unrelated subjects — only on a question of whether the person's scholarship and teaching in his or her discipline met appropriate standards. But in a hiring decision (whether for a visiting or permanent position), he said, it is appropriate to consider other factors, and the reality is that it's impossible to know what professors are really thinking when they vote one way or another. Professors can appropriately ask prior to appointments, he said, whether hiring someone whose views on certain subjects are "poisonous" could limit "the department's ability to do its business."
Next up: The AAUP defends loyalty oaths, and, in a retrospective on its fight to protect radical leftists with "poisonous" pro-Soviet views in the 1950s admits, "we were just kidding."

*To be clear, I haven't investigated Thio's background, and therefore have no opinion on whether she seems otherwise qualified to teach human rights law. To the extent folks want to argue that her work is weak and she shouldn't have been invited on those grounds, that's an entirely different point.

FURTHER UPDATE: Let me reiterate that I don't know anything about Thio, and have no opinion on whether she is in fact someone who, putting aside her views on gay rights, should be teaching human rights law at NYU.

And I think that her critics are correct to point out that NYU would never hire someone with analogous views about African Americans or other historically unpopular minorities, no matter how competent they were in their subject matter, and these critics can reasonably argue that NYU should treat gays with equal respect without taking a position on academic freedom more generally.

But Mr. Stanley didn't claim that Thio lacks relevant expertise or qualifications or smarts in general to teach human rights law, but that Thio's views on the legality of homosexual sex in Singapore are contrary to a purported international consensus, and therefore she may lack competence, which is nonsense. Let's say a prominent professor of human rights law in the U.S. suddenly announced that he thought gay sex should be criminalized, but his class changed not a whit from his previous classes. On what basis would we suddenly challenge his competence in the subject area?

And the AAUP, dedicated as it is institutionally to academic freedom and the right of professors with unpopular or outrageous views to be free from mistreatment, simply can't properly make the second argument, that because, e.g., racists are poorly treated, people who oppose gay rights should also be poorly treated. One can't imagine, for example, the AAUP arguing that because as a practical matter a known Nazi would never get hired by NYU, that NYU should not hire known Communist, or because few universities would hire known Al Qaeda sympathizers, they should also refuse hire someone who has written nice things about the Irish Republican Army, or the PLO, or Che Guevera, etc.

But Stanley actually made a much worse argument, that universities can properly exclude any ideas deemed sufficiently poisonous to interfere with departmental activities. In other words, universities should, on principle, allow a hecklers' veto. This position undermines the longstanding AAUP position over the decades that pacifists, or Communists, or anti-War protestors, or critics of the U.S. post-9/11, should not be mistreated in any way because of their political views, no matter how great the public outcry, and no matter how unpopular their perspective. E.g., after 9/11:

In recognizing that now is not the first time that our institutions have been tested by the demands of national security, the committee reaffirms the position taken during World War II by the Association's Committee A on Academic Freedom and Tenure:
"Academic freedom is one facet of intellectual freedom; other aspects of that larger concept—freedom of speech, freedom of the press, and freedom of religion—are among the avowed objects for which this war is being fought. It would be folly to draw a boundary line across the area of freedom."
Let's say Bill Ayers was suddenly up for an appointment in his field at NYU for which he was duly qualified. Does anyone believe that the AAUP position would be, or should be, that his views are so "poisonous" that NYU should decline to consider him for that position?


Nelson Lund on Sotomayor's Second Amendment Decision:

I had previously been inclined to think that Maloney v. Cuomo, Judge Sotomayor's decision to reject incorporation of the Second Amendment against the states was not a big deal, because she was bound by 19th century Supreme Court precedents. However, my colleague Nelson Lund, a leading Second Amendment scholar, has a good column that leads me to think there is more here than meets the eye:

Second Circuit Judge Sonia Sotomayor recently held that the Constitution does not protect the right to keep and bear arms against infringement by state and local governments. Her defenders maintain that she was merely applying settled precedent, which only the Supreme Court itself is authorized to reconsider. This is a half truth that conceals more than it reveals.

Last year, the Supreme Court resolved a longstanding debate by holding that the Second Amendment's right to keep and bear arms includes the right of American citizens to have weapons for personal self defense....

In several nineteenth century cases, the Supreme Court held that the individual liberties protected by the Bill of Rights, including the right to keep and bear arms, are not among the "privileges or immunities" protected against state abridgement by the Fourteenth Amendment. Whether this was a correct interpretation or not, the Supreme Court has adhered to it ever since, and the lower courts are required to accept it.

In the twentieth century, however, the Supreme Court decided a series of cases in which it concluded that most of the rights protected against the federal government by the Bill of Rights are also "incorporated" against the state governments by the Fourteenth Amendment's Due Process Clause. The Court has analyzed each right separately, but the legal test that eventually emerged focuses on the significance of the right at issue in the Anglo-American tradition of ordered liberty. The Supreme Court has not yet reviewed an incorporation case involving the Second Amendment, but its Second Amendment opinion last year pointedly noted that a due process analysis is now "required" under its twentieth century caselaw.

Judge Sotomayor ignored this instruction from the Supreme Court. She decided that her court was not required to perform this due process analysis because the nineteenth century decisions under the Privileges or Immunities Clause had settled the issue. Several circuit courts had reached the same conclusion before last year's Supreme Court's decision, and one other circuit court reached the same conclusion just this month. Her defenders can therefore plausibly argue that her decision was not wildly out of the judicial mainstream.

It is not true, however, that Judge Sotomayor was faithfully following precedent. The Supreme Court has never said that the Due Process Clause does not "incorporate" the right to keep and bear arms. That Court has never said that the nineteenth century Privileges or Immunities Clause cases foreclose due process analysis. Nor has it ever said that the lower courts are supposed to "wait" for the Supreme Court to rule on due process incorporation. The Supreme Court's twentieth century incorporation cases are the most relevant precedents, and Judge Sotomayor completely ignored them.

As Nelson points out, one of the disturbing aspects of Maloney is not just that Sotomayor may have gotten it wrong, but that she dispensed with a major constitutional issue in a short, cursory opinion. This is consistent with her actions in Didden v. Village of Port Chester and Ricci v. DeStefano, two other cases where she dismissed important constitutional rights claims that she was unsympathetic to - both with little or no analysis. Sotomayor's neglect of the Supreme Court's admonition to use Due Process Clause incorporation analysis in Maloney is remarkably similar to her neglect in Didden of the Supreme Court's statement in Kelo v. City of New London that "pretextual" takings are still unconstitutional.

I don't think this pattern is the result of laziness or incompetence. Her overall record clearly shows that Judge Sotomayor is neither. Rather, I fear that she genuinely believed that these three cases were essentially "slam dunk" decisions and that the side she ruled against didn't have any serious arguments. If so, that attitude reveals a great deal about her views on property rights, the right to bear arms, and reverse discrimination claims.

UPDATE: Some commenters point out that a Seventh Circuit panel including judges Posner and Easterbrook reached a similar conclusion. My answer to this claim is simple: They were wrong too, for reasons explained in detail by Eugene Volokh in this post. The fact that a conservative or Republican-appointed judge may have committed the same sort of egregious error as Sotomayor in no way excuses it. Moreover, unlike Sotomayor's opinion, the Seventh Circuit decision does at least consider the Due Process Clause incorporation issue (though, in my view, not nearly as thoroughly as they should have).

UPDATE #2: I just realized that my original post fails to link to Nelson's column. I have corrected the error.


Another Cool Color Illusion:

From Discover's Bad Astronomy blog. Thanks to Tim Sandefur (Panda's Thumb) for the pointer.


It's a Bird, It's a Plane, No, It's Super-Precedent Senator Feinstein just referred to Planned Parenthood v. Casey as a "Super Precedent." Here is a link to my brief Minnesota Law Review essay, "It's a Bird, It's a Plane, No, It's Super-Precedent"

A Free Lunch:

I just dropped my daughter off at "tot" day camp, and discovered that courtesy of Uncle Sam, she'll be getting a free USDA lunch. But it's not like the federal government ever wastes money or anything.

UPDATE: I should add that camp ends at 12:15, so there is really no need for the camp to be serving lunch at all. The camp handbook, on the internet, tells parents to send a snack with the kids, but I've now been told that this requirement is obsolete, because they are getting the "free" lunch instead.

BTW, I expect that the reaction of most parents would be "cool, we're getting a free lunch that we weren't expecting." But just because you're not paying for something at the moment, doesn't make it "free."


Ask About Clauses Not Cases: In my Wall Street Journal op-ed today, The Seinfeld Hearings, I urge the Senators to ask her about the meaning of the Constitution, not how she would rule in particular cases. The Journal added a very nice sub-head: "How Senators could, but probably won't, make the Sotomayor confirmation a show about something." Here is how the piece ends:
Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Don't ask how the meaning of these clauses should be applied in particular circumstances. Just ask about the meaning itself and how it should be ascertained. Do nominees think they are bound by the original public meaning of the text? Even those who deny this still typically claim that original meaning is a "factor" or starting point. If so, what other factors do they think a justice should rely on to "interpret" the meaning of the text? Even asking whether "We the People" in the U.S. Constitution originally included blacks and slaves -- as abolitionists like Lysander Spooner and Frederick Douglass contended, or not as Chief Justice Roger Taney claimed in Dred Scott v. Sandford -- will tell us much about a nominee's approach to constitutional interpretation. Given that this is hardly a case that will come before them, on what grounds could nominees refuse to answer such questions?

Of course, inquiring into clauses not cases would require senators to know something about the original meaning of the Constitution. Do they? It would be interesting to hear what Sen. Al Franken thinks about such matters, but no more so than any other member of the Judiciary Committee. Such a hearing would not only be entertaining, it would be informative and educational. After all, it would be about the meaning of the Constitution, which is to say it would be about something.
BTW, on FNC, I just heard Megyn Kelly ask Karl Rove about "legal realism" which is the subject of the beginning of my op-ed.

More Questions for Sotomayor:

The NYT publishes questions for Judge Sotomayor from Kathleen Sullivan, Michael Chertoff, Alberto Gonzales, Ann Althouse, James MacGregor Burns, Stephen Carter, and Ronald Dworkin.


"Where Are The Women? A precious few were published in recent addition of the UCLA Law Review":

Ann Bartow (Feminist Law Professors) asks this, following up with, "Invited articles by fourteen men, but only two women, in a Symposium edition?" Since the Symposium was one that I coedited, and since my fellow organizer and I were responsible for the invitations, I thought I'd mention this.

First, one should look at the topic of the symposium, which was "The Second Amendment and the Right to Bear Arms After D.C. v. Heller." In fact, here's what the first commenter, "uclastudent," said about this:

One, the slating of the Symposium Issue of the UCLA Law Review is done not by the Law Review staff but by the faculty.

Two, this symposium was on the Second Amendment. It’s my understanding that this topic tends to be dominated by a small group of legal scholars. I would not blame the Law Review or the faculty for any gender imbalances here.

Here's Ann Bartow's response:

Two, this symposium was on the Second Amendment.

Really? I had no idea! Asshole.

Many of the articles listed in the ToC are written by people who do NOT have any particularly notable record of previous Second Amendment scholarship. So the field was pretty open, and more women could have easily, and without any quality dilution, have been included.

Now, the first comment seemed to be pretty civil, and sensible. The "this symposium was on the Second Amendment" statement didn't seem to me to be said snidely, or as some revelation; it introduced the point of the paragraph, which is that the choice of panelists turned in large measure on who was prominent in that particular field. Does this really merit an "Asshole." in response?

But as to the merits, it turns out that every one of the articles in the symposium had as its author or lead coauthor either (1) someone who has written either extensively or prominently on the Second Amendment, (2) someone who has written a vast amount on gun control policy (Cook and Kleck, who to my knowledge are the two top scholars on the subject in the country), or (3) the winning lawyer (Gura). This leads me to think that Prof. Bartow doesn't actually know the field that well, since it's hard to see how her "Many of the articles listed in the ToC are written by people who do NOT have any particularly notable record of previous Second Amendment scholarship" can be correct. (I realize that what constitutes a "particularly notable record" is somewhat subjective, but it's hard to see how she can find "many" under that standard, unless she just categorically excludes the relevance of leading gun control policy scholars or the winning lawyer.) And if I'm right that she doesn't know the field well, how is it that she can be so confident that "more women could have easily, and without any quality dilution, have been included"?

This having been said, I will happily announce that I had absolutely no desire to add more women, or to add more men, to the mix. (I have no knowledge about my fellow organizer's thoughts on the matter.) But I don't think I need to debate here whether conference organizers should consciously seek women panelists when "more women could ... easily, and without any quality dilution, [be] included," given that Prof. Bartow offers no factual support for her assertion that such a thing would even be possible.

Finally, there certainly are some female constitutional law scholars, as well as some male constitutional law scholars, who are so extremely prominent that they are worth asking to the conference even if they haven't written anything on the Second Amendment or on gun control policy. The bar is naturally higher for them, but there certainly are such. We in fact invited both women and men in this category; as it happens, though, the only people who accepted were ones who fit in the three categories I identified.

So we have a vulgar insult of a perfectly reasonable commenter. We have what strikes me as either an incorrect summary of the credentials of those who participated, or at best an unreasonably blinkered sense of what credentials conference organizers might look for (that's if Prof. Bartow's view is that Cook's and Kleck's stature as gun control policy scholars, and Alan Gura's role in the case, don't count as relevant credentials). And we have an unsupported generalization about how there were other equally qualified women whom we could have included. All in all, not a particularly persuasive criticism, it seems to me.


Sunday, July 12, 2009

Before Ricci, There Was Thomas Jefferson University:

One criticism of Judge Sonia Sotomayor regarding the Ricci case is that her decision to join an unpublished summary disposition of the case showed a lack of judgment. If the Supreme Court found the case cert-worthy, some argue, then it was certainly worth more than a one-paragraph, unpublished summary order, right? Perhaps. Cases disposed of by unpublished summary orders or opinions rarely involve weighty or controversial issues, or questions of first impression. They tend to be the more straight-forward cases, or else involve peculiar fact patterns that are unlikely to recur. So these are not the sort of cases one would expect to go up.

Supreme Court review of unpublished summary orders is rare – usually not more than one or two a term, if that -- but it’s not unheard of. One example that I’m surprised I have not seen discussed elsewhere (although it was just brought to my attention) is Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994), in which the Supreme Court reviewed an unpublished order, issued without opinion, by the U.S. Court of Appeals for the Third Circuit. As with Ricci, the panel included a future Supreme Court nominee (Samuel Alito) and the Supreme Court divided 5-4. In this case, however, the panel’s opinion was affirmed, and the line-up was decidedly non-ideological. Justice Kennedy wrote the majority opinion, joined by Chief Justice Rehnquist and Justices Blackmun, Scalia, and Souter, Justice Thomas dissented, joined by Justices Stevens, O’Connor, and Ginsburg.

Are the cases distinguishable? I think so. At the time the Third Circuit rendered its judgment in Thomas Jefferson, it’s not clear the judges had any reason to see the case as particularly significant. It did not address a hot button or politically contentious question nor was there yet a circuit split. It’s hard to fault judges for not recognizing the potential importance of a lawsuit challenging the Secretary of Health and Human Services’ interpretation of the anti-redistribution principle embodied in §413.85(c) of the regulations governing Medicare reimbursement for hospital providers. Contrary to the suggestion in Justice Kennedy’s opinion for the Court, the Third Circuit’s opinion came out several weeks before the U.S. Court of Appeals for the Sixth Circuit went the other way.

Does the fact that Judge Alito joined a summary order that the Supreme Court both found worthy of review and divided closely over indicate that too much is being made of Ricci? Yes and no. It’s easy to make too much out of a single case, and there’s much more to Judge Sotomayor’s record than Ricci. One case should not make or break a nomination, and his involvement in the Thomas Jefferson University case (had it received attention at the time) would hardly have suggested Judge Alito did not merit confirmation.

I think the Second Circuit’s handling of Ricci merits criticism (and felt this way before Judge Sotomayor was nominated to the Supreme Court), but do not feel it justifies opposing her confirmation. It was easy to see Ricci was an important and difficult case from day one. Indeed, Adam Liptak’s reporting suggests the judges themselves had difficulty with it. Perhaps the facts that made it a tough case justified disposing of it with a non-precedential order, but (as I’ve noted before) this can’t explain the panel’s subsequent decision to publish its summary opinion once Judge Cabranes called for en banc review. At that point there was no longer any question that the case merited greater consideration than a single paragraph.

The Second Circuit’s handling of Ricci merits criticism, but it should not be overdone. Judge Sotomayor made the wrong call here, as did two of her colleagues. But this is revealed by the details of the case, and not just the Supreme Court’s subsequent review and reversal. Even the best appellate judges may fail to appreciate how the Supreme Court will view a case. And finally, it's clear Ricci is receiving more attention because of what it's about, than because of how it was handled below. If a case involving §413.85(c) had been handled precisely the same way, it's entirely possible most of us would still not have heard about it.


Some Bar Review Stress Relief: This blog post is guaranteed to amuse those of our loyal readers sweating over the bar review course (or your money will be cheerfully refunded).

Motorhome Diaries Visits Spooner: The Motorhome Diaries visits Lysander Spooner's grave in Boston. I have to admit I was hoping for visits like this when I helped arrange for the new monument on Spooner's grave.
BOSTON, MA – Lysander Spooner, born in 1808 in central Mass. was a freedom fighter in its truest sense. His writings and actions continue to inspire many, including myself and the others aboard MARV. A noted abolitionist that relied on natural law, he opposed tyranny in every form, including that which stems from government and its very existence.

Less than 100 years after the U.S. Constitution had been ratified he wrote that like any contract, it had no authority over him nor anyone else that did not sign it. This, and many other writings helped set the foundations for the freedom movement today. Yet he was not just an armchair philosopher but stood up for his beliefs. He directly challenged the U.S. Postal monopoly by founding a company that directly competed with it that was both more-efficient and less-expensive, until he was forced to close it after being relentlessly sued by the government (he was using his own money to defend himself while the government relied on taxpayer money, which they had stolen from others). He also challenged occupational licensing laws, seeing no reason that he could not act as a lawyer should others choose to employ him as such despite the fact that he did not jump through the requirements set by bureaucrats.

That’s why yesterday, we made sure we stopped by his gravesite to pay our respects and to let him know that we and many others are continuing to advance the ideas he advocated.

20 Questions for Judge Sotomayor:

The full list of Senator John Cornyn's "Daily Questions for Judge Sotomayor" are available here.


Read the Bills Before You Vote:

House Majority Leader Steny Hoyer laughs at the idea they should read substantive legislation before they enact it. Jeff Jacoby doesn't think its funny.

Senators and representatives who vote on bills they haven’t read and don’t understand betray their constituents’ trust. It is no excuse to say that Congress would get much less done if every member took the time to read every bill. Fewer and shorter laws more carefully thought through would be a vast improvement over today’s massive bills, which are assembled in the dark and enacted in haste. Steny Hoyer chortles at the thought of asking members of Congress to do their job properly. It’s up to voters to wipe the grin off his face.