Tag Archives: links

Miers and Proportional Representation

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Not only can’t Miers write – she doesn’t even understand the Constitution.

From her response to the Senate questionnaire:

“While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.”

But, from the Washington Post:

“There is no proportional representation requirement in the Equal Protection Clause,” said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation – which typically deals with ethnic groups having members on elected bodies – with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

I wouldn’t necessarily have caught that distinction myself. But guess what? I haven’t been nominated to the U.S. Supreme Court. She has.

Ugh.

Miers and Commas

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Harriet Miers doesn’t know how to use commas. Not even when answering written questions from the United States Senate.

More here and here.

For crying’ out loud already. This is beyond embarrassing. Not only can’t the woman write – she can’t even get people to write properly for her.

Does this woman really belief she’s qualified to sit on the Supreme Court? Honestly? If Bush is too stubborn to withdraw her nomination, she should withdraw it herself.

I’m simply appalled.

More On Miers

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I have no respect for any Democratic senator who finds Harriet Miers’s nomination to the Supreme Court acceptable, such as Charles Schumer, Harry Reid and others. I understand why most Republican senators would support her – despite her utter lack of qualifications, she passes their religion/abortion tests. But how can a Democratic senator support her when she lacks any evidence of the intellectual firepower necessary to sit on the Court, and probably doesn’t agree with them on substantive issues to boot? I’m flummoxed, unless they’re pretending to like her in order not to give Republicans more reasons to support her.

I loathe this nominee. It’s odd that I find myself agreeing with people like George Will and Charles Krauthammer (BTW, doesn’t he totally look like Mandy Patinkin?), but I do.

Of course, I feel some schadenfreude watching many conservatives get as angry about this nomination as I am. But that doesn’t mean I don’t agree with them, even if my reasons are slightly different than theirs:

For more than two decades, conservatives have been developing a team of potential justices for the high court in preparation for a moment such as this. They point to jurists such as Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit, Judge Michael W. McConnell of the 10th Circuit and Judge Priscilla R. Owen, newly sworn in on the 5th Circuit, as examples of people who have not just paid their dues but also weathered intellectual battles in preparation for reshaping the Supreme Court….

“The feeling was after John Roberts that surely the president was going to have to go to the bench where there were all these very excellent people who are serving on the circuit court or scholars who have been grooming for this possibility for years and years,” said Paul M. Weyrich, a leading voice in the conservative movement and one who has been openly skeptical of Miers.

Luttig and McConnell are highly qualified for the Court and I could respect them. But Owen? She might be intellectually qualified (is she? I don’t know), but she’s a major radical and I find her decisions odious. It’s Miers’s lack of intellectual qualifications and experience that concern me more than her purported judicial “philosophy” (if she even has one). Although that does bother me, too.

That said, she could pull a John Kerry during her confirmation hearings. Many people were surprised by John Kerry’s first presidential debate performance because they had built up all these preconceived notions about him in a portrait painted by the Republicans. It’s possible that Miers is a lot smarter than I’m giving her credit for.

But there’s no reason to believe that’s true unless there’s any evidence for it.

Harriet Miers was an awful, awful choice for a nomination. She’s completely unqualified to sit on the Supreme Court and her name should be withdrawn.

Hamilton on Miers

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Regarding Harriet Miers, I like this op-ed.

From The Federalist No. 76, about the Senate’s role in voting on a Supreme Court nominee:

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

(Italics are by the author of the above link.)

Harriet Miers, anyone?

Blawgs/Seminole

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My finger seems to be normal again. That’s good.

Unfortunately, my throat has been sorer today than yesterday. I decided to take the day off from work. After Matt and I had lunch at Lemongrass, I went to the hardware store and bought new air-conditioner filters. Hopefully that’ll make things better.

I also went through my several boxes of memorabilia today (from childhood, adolescence, high school and college) and separated out about half the stuff to toss in the trash. God, I’ve been such a packrat. I don’t know why I was keeping my high school U.S. History notes or my DC Heroes role-playing game.

In other news, I’ve been thinking about starting a law blog (or “blawg”). Lately I’ve been writing lots of law-type stuff, and I’m not sure how interesting it is to my readers. On the other hand, I don’t know if I’d want to write about legal stuff enough to justify a daily law blog.

But this afternoon (and this will sound random) I finished reading Justice Souter’s dissent in Seminole Tribe v. Florida, a major Eleventh Amendment case from 1996. I studied the case in law school and saw a reference to it again recently, so I decided to print out Souter’s dissent and reread it. It’s a brilliant piece of scholarship, and it’s nearly three times as long as Rehnquist’s misguided majority opinion. Over the past 100+ years, the Supreme Court has fucked up the Eleventh Amendment beyond belief.

Anyway, I like having just one blog. Even if it doesn’t have a consistent focus, and some readers might be thrown off by some of the topics, this blog’s a reflection of me and of what’s going through my brain at any given time. And again, I don’t think I’m obsessive enough to keep up a daily blawg.

So I might as well just keep the one.

Pattygate

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The Wikipedia article on United States Supreme Court nominee John Roberts was the focus of considerable attention last week, and not just in terms of heavy editing. It also inspired a joke that transformed into a rumor circulating in the blogosphere that Roberts might be homosexual, or at any rate a rumor that people might be trying to spread such a rumor.

Read more. Isn’t paranoia fun?

FAIR v. Rumsfeld

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This week’s New Yorker has an article by Jeffrey Toobin (I always confuse him with Jeffrey Rosen) about an upcoming Supreme Court case, FAIR v. Rumsfeld, that touches on gay rights. Strictly speaking, it’s not a gay-rights case; it involves the constitutionality of the Solomon Amendment, under which federal funding is withheld from any university that contains a law school that bans the military from on-campus recruiting. Many law schools include sexual orientation in their non-discrimination policies, and because gays aren’t allowed to serve openly in the military, the schools ban the military from recruiting on campus, just as they ban any law firm that discriminates on the basis of sexual orientation. The law schools claim the Solomon Amendment violates their free speech, while the government claims it has a right to attach conditions to federal funding. The federal appeals court ruled in favor of the law schools, and the Supreme Court is hearing arguments on the case next term.

I think I would side with the government on this. One, I don’t think this is a free-speech case; the law schools are free to vehemently speak out against the military’s policy, organize protests, whatever they want. Two, the government is not forcing any policy on the schools; they are free to choose between accepting federal funds and banning military recruiters. But this is a weaker argument, because (a) we’re talking about withholding federal funds from entire universities – $130 million in the case of NYU – and (b) if it were really a free-speech issue, I don’t think the federal-funding excuse would pass muster.

I was going to make a third point that the military is probably different from a law firm, but if I were a judge writing the opinion, I’d probably leave that part out, just because I wouldn’t want to go there.

Incidentally, the article also has some predictions about how John Roberts would vote on the case if he were confirmed.

Recent Readings

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Books I’ve read in the last two months, working back from the present:

Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey by Linda Greenhouse (just begun this morning)

The Dred Scott Case: Its Significance in American Law and Politics by Don E. Fehrenbacher

Crossworld: One Man’s Journey into America’s Crossword Obsession by Marc Romano

The Curious Incident of the Dog in the Night-Time by Mark Haddon

Atonement by Ian McEwan

Original Meanings: Politics and Ideas in the Making of the Constitution by Jack N. Rakove

I’ve been trying to switch between fiction and nonfiction, but I’ve obviously been more into the nonfiction lately.

Roberts and Gays

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For at least a year before the nomination of Judge John G. Roberts to the Supreme Court, the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them that he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.

Yeah, so that kind of worries me.

Granted, the only other part of the article that mentions gay rights is this:

Mr. Leo said he told wary social conservatives that even though Judge Roberts had not ruled on abortion or other issues his other opinions showed “a respect for the text and original meaning and a presumption of deference to the political branches of government.” …

Mr. Leo said such narrow and deferential rulings are “going to comport better” with the restrained role that social conservatives want judges to play on questions about abortion, gay rights or religious displays, which they believed should be left to elected officials rather than the Supreme Court, Mr. Leo said.

Granted, there’s nothing specific there that says Roberts would vote for or against gay rights. But I won’t kid myself; as impressed as I am by him, he’s still a Bush nominee. So I’ll continue to hope what I’ve already been hoping for a while: that no same-sex marriage case comes before the Court in the near future. Regardless of the Court’s composition, one of two things would happen: either it would find bans on same-sex marriage constitutional, or it would find them unconstitutional and thereby practically guarantee passage of a constitutional amendment outlawing same-sex marriage. This is just not a good time for the Supreme Court to be ruling on gay marriage, period.

There are, of course, other gay rights issues that could come before the Court.

Anyway, we knew after last fall’s election results that things didn’t look good. At this point, we just have to keep our fingers crossed.

Dual Letters

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Okay, this is weird.

In today’s Times:

To the Editor:

Re “Bush Picks Nominee for Court; Cites His ‘Fairness and Civility’ ” (front page, July 20):

I am a knee-jerk liberal, and I know that I will probably deplore many of the opinions that Judge John G. Roberts will write as a Supreme Court justice, if he is confirmed.

But I think that he is eminently qualified for the position and should be confirmed.

All Americans knew in the 2004 presidential election that Supreme Court nominations would play a big role in the near term. The public elected George W. Bush despite a clear understanding of his particular philosophy about constitutional interpretation and “legislating from the bench” – even if that negative characteristic applies equally to conservative and liberal judges.

The public will (and should have to) live with the choice that President Bush has made. Intellect and qualification should always be the prime concerns in selecting lifetime appointees to the high court.

In Judge Roberts, Mr. Bush appears to have gone above and beyond in those areas. That Judge Roberts may be crafted in the mold of Antonin Scalia and Clarence Thomas, judges whom President Bush says he admires, is our own fault.

Josh Goldberg
Chicago

In today’s Washington Post:

I am a liberal, and I know I will deplore a good number of the Supreme Court opinions John G. Roberts Jr. authors. But I think he is eminently qualified for the position and should be confirmed nonetheless.

Americans knew in the 2004 presidential election that Supreme Court nominations would play a big role in the near term. The public reelected George W. Bush despite a clear understanding of his particular philosophy about constitutional interpretation and “legislating from the bench” — even if that negative characteristic actually applies equally to conservative and liberal judges. The public will — and should have to — live with the choice that Mr. Bush has made.

Intellect and qualification should always be the prime concerns in selecting these lifetime appointees. In Judge Roberts, Mr. Bush appears to have gone above and beyond those standards. The fact that Roberts is crafted “in the mold of [Justices] Antonin Scalia and Clarence Thomas” is our own fault.

JOSH GOLDBERG

Chicago

From the New York Times’s letters policy:

“Letters to The Times should only be sent to The Times, and not to other publications.”

Oooh, they got burned!

Poor Justice Breyer

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There are a couple of good behind-the-scenes articles today on how the White House, Congress, and outside groups are prepared to react in the event of a Supreme Court retirement and subsequent nomination of a new justice. One conservative group, the Committee for Justice, “plans to feed research to conservative bloggers so they can fact-check and counter opponents’ claims,” according to the Washington Post. I was struck by the reference to bloggers – at the time of the last nomination, in 1994, the Web barely registered in our culture. The next nomination will be the first of the Internet Age.

Anyway, a retirement seems increasingly unlikely this year, especially given Justice Thomas’s remark yesterday that the Court’s recent term ended as “winds of controversy swirled about the Court’s decisions and, unfortunately, about the imagined resignations.” I’ve been annoyed by the media’s breathless speculations, both this week and two years ago, over non-existent retirements. And it would be sad if someone retired now, when the Court is achingly close to breaking the record of the longest period of time without a change in membership. The current record is just over 11 years, from February 3, 1812 (the arrival of Joseph Story) to March 18, 1823 (the death of Henry Brockholst Livingston). Since Stephen Breyer joined the Court on August 3, 1994, the record would presumably be broken around September 15, 2005. The new term doesn’t begin until the first Monday in October, so theoretically Rehnquist or O’Connor could announce his/her retirement now, I guess, but not make it effective until the second half of September. But that seems to me like cheating.

Meanwhile, poor Justice Breyer has been the junior justice for 11 years. That’s 11 years of answering the door. He must be sick of it. If anyone’s looking forward to a new justice, it would be him.

McCreary and Van Orden

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I’ve read Scalia’s dissent in McCreary County v. ACLU, yesterday’s Supreme Court decision that found the display of the Ten Commandments in certain county courthouses unconstitutional. The majority opinion itself is problematic, but so is Scalia’s dissent.

Part One of Scalia’s dissent, which compromises more than half his written opinion, is what I find most problematic. (Kennedy, who dissented as well, declined to go along with this part of it.) First, Scalia states:

On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

My alarm bell went off when I saw “September 11, 2001.” What purpose does this paragraph have other than appeal to people’s emotions? What legal purpose does it have?

More importantly, when did Scalia start finding validity in the opinions of European judges?

But my main issue with Part One is Scalia’s substantive arguments. In trying to interpret the First Amendment, Scalia provides numerous examples of actions by early presidents and founders and Congresses to show their views of religion and religious practice vis-a-vis the U.S. government. Scalia claims to be an originalist, but what do any of these examples – even those involving President Washington or the First Congress – have to do with originalism or the constitutional text? If you’re going to rely on originalism in interpreting the meaning of a constitutional amendment, you shouldn’t look past the date of that amendment’s ratification. Once that amendment goes into practice and flawed human beings start working with it, divergent interpretations, some correct and some flawed and some of indeterminable validity, are going to arise and multiply. Furthermore, why should we ascribe more validity to the practices of a particular individual or the decisions of a particular session of Congress than to the meaning given by the founders and ratifiers collectively? We shouldn’t rely on some presidential Thanksgiving Proclamation or some chaplain’s opening prayer at a legislative session as guidance in interpreting the Constitution.

There’s also this. Scalia asks:

how can the Court possibly assert that ” ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” … and that “[m]anifesting a purpose to favor … adherence to religion generally,” … is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives … criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional.

Last time I checked, it’s not Congress’s job to decide whether something is constitutional.

That said, part of Scalia’s dissent makes sense. He criticizes the majority, as well as the Lemon test (named for Lemon v. Kurtzman, which set forth a multi-pronged test for evaluating the constitutionality of a government action under the Establishment Clause), for relying too much on examining a government entity’s purpose when trying to decide whether a governmental action is constitutional under the First Amendment. One of the majority’s stated reasons for declaring the particular displays of the Ten Commandments in these cases unconstitutional was that earlier actions and statements by the county executive and legislative bodies showed that they had a religious purpose in displaying the Ten Commandments. It seems odd to me that the purpose in displaying the Ten Commandments should matter. As Scalia points out:

This inconsistency may be explicable in theory, but I suspect that the “objective observer” with whom the Court is so concerned will recognize its absurdity in practice. By virtue of details familiar only to the parties to litigation and their lawyers, McCreary and Pulaski Counties, Kentucky, and Rutherford County, Tennessee, have been ordered to remove the same display that appears in courthouses from Mercer County, Kentucky to Elkhart County, Indiana. … Displays erected in silence (and under the direction of good legal advice) are permissible, while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause’s protection against religious establishment; indeed, it may inflame religious passions by making the passing comments of every government official the subject of endless litigation.

I tend to agree. It’s a weird way to analyze the issue in this particular case. The physical context of the display matters more than the purpose behind it, I think.

Still, having said all this, even though I consider myself rather agnostic (albeit being born a Jew and self-identifying as a Jew), I’m not completely uncomfortable with the display of the Ten Commandments in a courtroom. It bothers me a little, but not as much as some other things might. It would be different if a judge cited the Ten Commandments in a court ruling, but that’s not the situation here. I don’t think there’s an easy answer to these cases. As Justice Breyer – the only justice who voted for two different outcomes in yesterday’s two Ten Commandments cases – wrote:

“In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law) – a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States.”

SC Retirement Scenario

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A scenario for Monday: “Amid layer upon layer of uncertainty, one thing seems reasonably predictable about the Supreme Court’s public session on Monday, the last public sitting of the current Term. That is that the Court will formally recess for the summer without a word being said about any retirement, or retirements, from the Court. Too much, however, can be read into that, and should not be.”

Lewis v. Harris

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I didn’t even know this until today, but last week, the New Jersey Appellate Division issued a decision in Lewis v. Harris, the state’s same-sex marriage case. The Appellate Division, 2-1, affirmed the trial court’s ruling against same-sex marriage. (The decision includes a published dissent, which should be interesting reading.) This is not really a big deal, because everyone has known that the outcome ultimately depends on the New Jersey Supreme Court, which now gets the case. It’ll probably take at least a year to get through the state supreme court, after which I expect this liberal court to find same-sex marriage constitutional in the state. (It was the New Jersey Supreme Court that issued the pro-gay decision in the Boy Scouts case a few years ago, which of course got overturned by the U.S. Supreme Court.)

We shall see.

(Here’s a Lambda Legal press release on the decision.)

Upcoming Court Cases

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By the end of the month, the U.S. Supreme Court will have completed its current term (and Chief Justice Rehnquist will very likely have announced his retirement, although I hope not).

Here are the cases yet to be decided this term that I find the most interesting (taken from here – any case that has nothing listed under “Opinion” and does not say “2005-06 term” under “Oral Argument” will be decided this month; the following links provide nice summaries of the cases mentioned as well as links to case materials):

Van Orden v. Perry and McCreary County v. ACLU – These are probably the highest-profile cases remaining and will likely be decided together. They involve whether a government-sponsored display of the Ten Commandments violates the First Amendment.

MGM v. Grokster – The Court will decide whether the distributors of peer-to-peer file-sharing computer software can be held vicariously or contributorily liable for copyright infringement. This will be high-profile as well.

National Cable & Telecommunications Assn., et al. v. Brand X Internet Services / FCC v. Brand X Internet Services – The Court will decide whether it is proper for the FCC to classify cable modem service as an “information service” and not a “telecommunications service” for purposes of regulation under the Telecommunications Act of 1996. DSL is subject to stricter FCC regulation than cable modem service because it is owned by telecommunications companies and is therefore classified as a “telecommunications service.”

In all, there are 26 decisions remaining to be announced by the end of this term. Supreme Court decisions are announced on Mondays and sometimes on Thursdays as well.

There are no gay-rights cases this term, but next term there’s Rumsfeld v. Forum for Academic & Institutional Rights, about whether the federal government can withhold funding from law schools that bar military recruiters from campus. Several law schools bar military recruiters because they say the ban on gays serving openly in the military violates those schools’ non-discrimination policies. See also this article that discusses the case in light of Dale v. Boy Scouts of America.

The Court seems to take up a gay-related case every three or four years. The last one was Lawrence v. Texas in 2003.

Interstate Wine

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The U.S. Supreme Court ruled this morning that a state cannot prohibt wineries located out of state from shipping wine directly to customers in that state. The decision “is expected to increase the sales of wines over the Internet by small, boutique wineries.”

And I love it when things like this happen:

The majority is Kennedy (author), Scalia, Souter, Ginsburg, and Breyer. The dissent is Rehnquist, Stevens, O’Connor, and Thomas.

Scalia versus Thomas! Stevens and Thomas voting together! Dogs and cats living together!

And how often do you see the Supreme Court having to interpret the amendment that repealed Prohibition?

I’ll really have to read the decision.

Today in Schiavo

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I’ve been following the progression of the Terri Schiavo litigation all day. I still find it fascinating. As a lawyer, it’s startling to see a case move through the courts so quickly when litigation usually takes forever. Those judges (or their clerks) write fast.

Anyway, here’s what’s been happening in simple terms (I hope?).

On Sunday, as we all know, Congress passed its (highly unusual) law giving federal courts jurisdiction over the case. Once they did that, Terri Schiavo’s parents, the Schindlers, went to federal court.

There are two issues before the federal courts. One: the actual merits of the case — whether any federal rights are being violated by letting Terri die. But preliminary to that is another issue, the one that the courts have been ruling on since yesterday: whether to reinsert her feeding tube in the meantime. A case on the merits would take a while, so it might make sense to reinsert her feeding tube while the actual merits of the case are being decided. Such an immediate action is known as a temporary restraining order (TRO).

However, legal doctrine says that in deciding whether to issue a TRO, a judge has to take into account whether the party seeking the order will ultimately win the case on the merits. It’s sort of strange, because while the judge isn’t actually deciding the merits of the case, he has to sort of “peek” at the merits in order to decide on the TRO.

The federal district judge, Judge Whittemore, decided that the Schindlers were highly unlikely to win on the merits of the case, based in part on the voluminous state court history, so he granted the TRO. Some have said that his stance violates the law Congress passed, because Congress intended the federal courts to give the case a fresh look without taking into account the state court history over the past eight years. However, the Schindlers are claiming that the state court litigation denied Terri’s due process rights. And obviously, the federal courts have to examine the state court actions in order to answer that question. After doing so, Judge Whittemore said it was highly unlikely that federal courts would ultimately rule that Terri’s due process rights were violated in state court.

So the Schindlers appealed to a three-judge panel on the Eleventh Circuit (the federal circuit that includes Florida), which ruled early this morning, 2-1, that Judge Whittmore’s decision was correct. In their appeal, their lawyer cited the All Writs Act, which they claimed allows a federal court to essentially bypass the requirements for a TRO. Two of the three judges disagreed, but the dissenter, Judge Wilson, said that the All Writs Act should permit the reinsertion of the feeding tube. (I’d never heard of the All Writs Act until today, so what the hell do I know.)

The Schindlers then asked for a rehearing by the entire Eleventh Circuit, which consists of 12 judges. (This is typical legal procedure.) At around 3:30 this afternoon, the Eleventh Circuit declined to rehear the case. Judge Wilson and another judge dissented, again on the basis of the All Writs Act.

So… it’s off to the Supreme Court, where Justice Kennedy is the one who covers emergency appeals for the Eleventh Circuit. He can ask the whole Supreme Court to review it if he wants. The Supreme Court has already turned down the case, but perhaps it will want to examine the All Writs Act. Who knows.

In the meantime, Governor Jeb Bush, amazingly, is going to the state courts AGAIN to try to restore the feeding tube, who have already said no several times. Why the outcome would be different this time, who knows.

By the time you read this, more might already have happened.