Balkinization  

Sunday, May 18, 2003

JB

Good Judging and "Following the Rules Laid Down," Part II

In my previous post on Larry Solum's theory of good judging, I pointed out that although Larry can justify following previous precedents that are inconsistent with his theory, he can't justify courts deciding those cases in the first place. The example I gave was the Burger Court's sex equality cases of the 1970s, which, I argued, were good decisions that Americans should, on the whole, be proud of. If Larry's theory can't account for the legitimacy of such decisions, I suggested, it is probably too narrow a conception of the judicial role.

In response, Larry adopts a strategy of confession and avoidance:

So I really have to bite the bullet. As Balkin recognizes, I am forced into the following position. Although the Supreme Court's gender equality jurisprudence is binding precedent and should continue to be followed by both the Supreme Court and the lower courts, those decisions were badly reasoned and gave insufficient weight to contrary precedent. Now, Balkin is right when he assumes that I "would agree that women should not be subjected to discrimination by the states or the federal government." So how can I possible think that decisions which lead to a result of which I approve are incorrect as a matter of law? Haven't I contradicted myself? Well, no. In fact, obviously not. Why not? Because judicial fiat is not the only way to change the law. Law can be changed by amending statutes, promulgating regulations, and even in some cases, by amending the constitution. If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law. Even with the Supreme Court's gender equality jurisprudence, both Congress and state legislatures have enacted a wide variety of important gender equality legislation. And it is not clear the polities without our institution of judicial review (the United Kingdom, Denmark, etc.) have lagged behind the United States in achieving gender equality.

It follows from this that Larry does not, in fact, think that the states and the federal government should be *constitutionally* prohibited from discriminating on the basis of sex. He believes that sex inequality is wrong, but that it should be up to individual states, and to the U.S. Congress to pass laws and issue regulations prohibiting sex discrimination. But I think this misses the point at issue: Should the principle of sex equality be part of our basic law, our fundamental rights, so that one does not have to get legislation passed in order to secure basic rights for women? One might well have said the same thing in Brown v. Board of Education: let each state decide whether it wants to keep Jim Crow or abolish it; let Congress decide whether it wants to ban segregation in the D.C. schools, or not, and so on. I guess one could take that position with respect to almost every important civil right that doesn't fall within Larry's neoformalist vision of judging. But my point is that if so, this seems to me at least, to be a serious criticism of his position. I don't think it would be sufficient to leave the question of sex equality, or race equality, for that matter, to the tender mercies of indvidual states.

Larry notes in passing that "If the Supreme Court had taken the steam out of the political movement, the Equal Rights Amendment might now be law." Well, I think there is much to be said for that view, although there is some evidence going in the other direction. But I assume that Larry would agree that this does not justify the Court's 1970's sex equality jurisprudence, at least for a formalist. It might for someone like me, or like Justice White (both of us are strongly legal realist in our orientation, as you may have guessed) but the point of being a formalist is that if you don't play by the rules, you don't get the result you are seeking. Article V of the Cconstitution says that it takes three quarters of the states to change the Constitution, not three quarters less three.

But I digress. Larry may well think that he can bite the bullet on the sex equality question. But the sex equality example was only one example. What Larry does not sufficiently recognize, I think, is that the number of Supreme Court decisions that are not consistent with his model of neoformalist judging are plentiful. Indeed, I would venture to say that there is hardly an area of contemporary civil rights law in which the key precedents protecting civil rights and civil liberties were originally developed consistent with Larry's formula for good judging. Rather, the history of progress in civil rights in this country is the history of courts artfully dodging and sometimes overruling previous precedents, and creatively crafting new doctrinal structures in their stead, often with nary a concern for "plain meaning," structure, or original understanding. The list of cases that were decided in ways inconsistent with Larry's rather narrow conception of good judging is so long that I can't even begin to list them all, but here's a partial sample: the basic doctrines of the scope of free expression, the rule of strict scrutiny for content based regulations, the rule of Brandenburg v. Ohio protecting seditious libel, the contemporary protection of blasphemy and indecency, the public forum doctrine, the rule of New York Times v. Sullivan, the doctrine of freedom of association, the doctrines prohibiting unconstitutional conditions on speech, the constitutional recognition of picketing as a form of protected expression, and that's just the first amendment doctrines that come readily to mind.

But let's move on: We would also have to include almost all of the Supreme Court's criminal procedure jurisprudence and its application to the state governments, the rule of Gideon v. Wainwright, the rule of Shapiro v. Thompson, the fundamental right to marry recognized in Zablocki v. Redhail and Loving v. Virginia, the right to procreation recognized in Skinner v. Oklahoma, Griswold v. Connecticut and Eisenstadt v. Baird, the requirement of a hearing in adminstrative decisionmaking in Roth and its progeny, the application of equal protection clause to aliens, to illegimate children, to the mentally retarded, not to mention women, the application of the Equal Protection clause to voting in Baker v. Carr and its progeny, (including the equal protection holding in Bush v. Gore, don't forget!), the discovery of an "equal protection component" in the Fifth Amendment's Due Process clause so that the Federal Government could not discriminate on the basis of race in Bolling v. Sharpe, or on the basis of sex in Frontiero v. Richardson.

But wait, there's more: Quite apart from the ways courts have innovated in the area of civil rights and civil liberties, they have also innovated consistently in the scope of national powers. So to the list we must add the current constitutional powers of Congress to pass regulatory legislation under the commerce clause beginning with Darby and Wickard and their progeny, which include, by the way, the power of Congress to pass the Civil Rights Act of 1964 and much other subsequent civil rights legislation. to This we must add the doctrines authorizing the administratiive state, the power of Congress to delegate legislative and judicial authority to administrative agencies, and the power of Congress to create independent federal agencies like the FCC or, more importantly, the Federal Reserve, which keeps the money supply out of everyday political contestation. (Can you say "Cross of Gold speech?" I knew you could.) Oh, and by the way, The Legal Tender Cases, which authorized Congress to print paper money as legal tender? Not a particularly good example of neoformalist judging. I'm afraid those greenbacks will have to go.

My point is that cases like the sex equality decisions of the 1970s are not the exception. They are the rule. If we took seriously Larry's view that he would have to bite the bullet in all cases where the Supreme Court's decisions were inconsistent with his vision of neoformalist judging, then I'm afraid that he would have delegitimated a very sizeable chunk of the corpus of contemporary constitutional law, or at least the portions that I regularly teach in my courses and discuss in my casebook. All of this stuff should never have been decided. In other words, if Larry is willing to bite the bullet on cases that are inconsistent with his narrow conception of appropriate judging, he will be biting bullets for a very, very long time.

But it gets even worse. For Larry's response to the sex equality cases is that Congress and the states could just pass legislation protecting women's civil rights. But my point is that the Supreme Court has not simply engaged in what Larry would regard as creative legal interpretation in cases limiting government power. It has also creatively interpreted and expanded the scope of Congressional power as well. That is what the New Deal Revolution was all about. And indeed, it is quite likely that if the Court had just followed his neoformalist formula for good judging, Congress would be constitutionally prohibited from passing much of the very civil rights and civil liberties protections that he wishes to fall back on, and administrative agencies would not be able to pass all those regulations that Larry argued would pick up the slack in enforcing equality norms. Certainly the Civil Rights Act of 1964 is not consistent with 19th century precedents or 19th century understandings of federal power. I'm afraid that what Larry is committing us to is a Constitution without a very large proportion of the features that we today take for granted as its greatest strengths and its greatest achievements.

If I am correct about all this, then there is an enormous irony to Larry's theory. For despite all of these criticisms, Larry can in fact have his cake and eat it too. He can point out that judges should follow the sex equality cases, the cases broadening the scope of Congressional power, the cases legitimating the administrative state indeed, the whole panoply of cases that I have just pointed to, because they are *already decided,* and judges must follow stare decisis. But here is the irony: The only reason that these things are law now, and that judges must follow them, is because other judges in the past who Larry thinks didn't know how to do their jobs properly violated their oaths of office and inserted these travesties into constitutional law. So Larry's theory commits him to the following paradoxical position: He doesn't have to defend a deeply unjust and unworkable constitutional scheme because other judges in the past didn't follow his advice about what constitutes good judging and inappropriately mixed law and politics in the very ways he accuses me of. And that paradox, I think, suggests that there is something deeply wrong about his theory of judging. He is like a man who is living off the proceeds of stolen goods.

Now, there's another very important side to Larry's post, and it has to do with he thinks are my own views about judging in constitutional cases. Larry thinks that what I am advocating is simple lawlessness, that I am saying that ultimately it's all politics. He is mistaken about this, and he misreads me in large part because he has too narrow a view of what *legal* argument is. I must confess I don't recognize his theory of neoformalist judging in the actual practices of lawyers and judges in America. My view of legal argument is simply more flexible than his, that's why he jumps incorrectly to the conclusion that I think it's all just politics. But I think that history of the practice one is arguing about counts for something. And the more one studies the actual history of the practices of legal argument about the U.S. Constitution, and the ways in which our Constitutional law has actually developed, the more one discovers that these practices are much much more flexible that Larry's model of good judging permits. A theory of judging that renders so much of the history of the practice it is trying to account for as illegitimate just can't be correct. But that discussion will have to wait for another post.

JB

Good Judging and "Following the Rules Laid Down."

Matthew Yglesias agrees with Larry Solum about the following views of good judging:

Judges should be trying, as best they can, to figure out what the constitution means as law. That means that first and foremost judges should follow the rules laid down. Even the Supreme Court should regard its own precedents as binding, unless there is a compelling reason to do otherwise. We've been speaking mostly of constitutional law, so I will limit myself to that topic by way of illustration. When the precedents run out, judges should look to the plain meaning of the constitutional text. When the text of a particular provision is ambiguous, judges should look to other provisions and then to the structure of the Constitution as a whole. And if ambiguity persists, judges should make a good faith effort to determine the original meaning. And when ambiguity persists, then judges should resort to general default rules that minimize their own discretion and maximize the predictability and certainty of the law.

This sounds like a nice algorithm for judicial decisionmaking, but I can't sign on to it. It seems to me insufficiently attentive to the historical realties that shape American constitutional development, and more to the point, it gives no account of the sort of judging that, in hindsight, we are most proud of as Americans.

Before I begin, I should note that there's something odd about Larry's formula for good judging. It's not at all clear to me why precedent trumps "plain meaning," why both of these trump structural considerations, and why all of them together trump original understandings. If there's an argument here, I don't see what it is. As Larry probably knows, Philip Bobbitt (and Dick Fallon) have argued fairly persuasively that this sort of lexical preference for some modalities of constitutional interpretation over others is unworkable. But I digress.

Let me take a simple example. I assume for purposes of discussion that Larry (and Matthew, for that matter) would agree that women should not be subjected to discrimination by the states or the federal government. In fact, the line of sex equality decisions that begins with Reed v. Reed in 1971 is something that I think most federal judicial nominees would be expected to agree with; or to put it another way, any judicial nominees who forthrightly stated that sex discrimination was constitutional would likely never be confirmed. I would go further: these precedents are something that we can and should be proud of; they demonstrate that we have become a freer, more equal, more tolerant, and more democratic society than we were before. To me they are not examples of bad judging, but examples of good judging, and if a theory of judging is inconsistent with them, I think that is a reason to be suspicious of the theory.

Now one can easily justify following these cases today because they are precedents. But the question I want to ask is whether the cases were originally correctly decided in the first place. That is, could someone who holds the views that Larry does about good judging consistently come out the "right" way on the sex discrimination issue? Frankly, I don't think it's possible. I don't think one can make a serious case that the 1970's sex discrimination cases are consistent with Larry's notion of what good judging is, at least if the point of good judging is to "follow the rules laid down." The precedents, in fact, were pretty clear: they all pointed in the opposite direction. The Court had decided in cases like Goesart and Hoyt that women were not entitled to be free from sex discrimination except in cases of voting covered by the Ninteenth Amendment. All other discrimination against women was to be subject to rational basis scrutiny, which means that almost all of it was to be upheld. Indeed, the key case that ushers in the 1937 revolution (don't get me started on whether *that* is consistent with previous precedents), West Coast Hotel v. Parrish, involved a Washington law that required minimum wages for women workers but not male workers. That is clearly sex discrimination, and the Court thought nothing of it. (Note that this is not a mere oversight. Adkins v. Children's Hospital, the case that West Coast Hotel overruled in 1937, emphasized the equal ability of men and women to make economic decisions as a reason for striking down a similar minimum wage law).

Reed v. Reed, to be sure, does make obeisance to the rational basis standard, but it applies it very differently from other rational basis cases in the post-1937 period, and it is generally understood to have been a disguised form of heightened scrutiny that was made official in Frontiero v. Richardson and Craig v. Boren. Reed v. Reed just can't be understood as "following the rules laid down," and certainly the next two cases can't.

My point is that if one just followed the "rules laid down," (Larry's interpretation of this phrase, not mine, I should add) you would never get to modern sex equality doctrine. Morever, because the "rules laid down" are clear, according to Larry's formula, you would never go on to ask about the "plain meaning" of the text, structure, and original understanding. However, let's go through the exercise just for fun.

Does the plain meaning of the equal protection clause mean that sex discrimination is unconstitutional? Certainly very few people thought so before 1970. I guess it all depends on what you mean by "equal protection of the laws," but the difficulty in figuring this out suggests that the words don't have a plain meaning that decides this particular question. (Of course, this raises another problem with Larry's hierarchy, the fact that he elevates the "plain meaning" of the constitutional text over the original understanding of its meaning. I don't see why one would do this. I can understand why one would want to consider textual arguments of all sorts-- including appeals to the larger abstract political principles behind the text-- as superior in many cases to originalist arguments, but that is not the same thing as Larry's suggestion.) In any case, if I were to ask what is the plain meaning of "equal protection," I would have a hard time distinguishing sex discrimination from discrimination against debt adjusters (Ferguson v. Skrupa) or discrimination between opticians and optometrists (Williamson v. Lee Optical). If you throw in a very elaborate political theory, you might get some traction on these questions, but that's not an appeal to "plain meaning," it's an appeal to the best political theory for deciding the case. (Ronald Dworkin, call your answering service please).

OK, well what about constitutional structure? Is there any structural reason to think that sex discrimination is unconstitutional? I'm afraid there's not. The Nineteenth Amendment gives women the right to vote, and they are technically a majority, (not a discrete and insular minority) so presumably they can already vote for candidates who would support women's rights. And the "plain meaning" of the Nineteenth Amendment (there's that phrase again) only extends to voting, not to all of the other forms of sex discrimination that the states and the federal government might impose. (By the way, if you think that there are structural reasons why women are kept in positions of social inequality, bully for you, that makes you an antisubordination theorist, just like me. However, I'm afraid this is not what constitutional scholars mean by "structural argument." Sociological speculation, for most of them, is "policy" analysis, the exact opposite of legal reasoning and following the rules laid down.).

That brings us to original understanding. I'm afraid that the original understanding is not very good for egalitarians generally, because, not to put to fine a point on it, the Framers of the 1787 Constitution (and the Fourteenth Amendment) were, how shall I say, men of their times. The Framers of the Fourteenth Amendment pretty clearly did not wish to alter the common law coverture rules, which meant that married women surrendered virtually all of their rights upon marriage. Moreover, the Framers of the Fourteenth Amendment did not believe that women should have political equality with men-- the right to vote, hold political office, or serve on juries. This is reflected in Section 2 of the 14th Amendment, which specifically refers to male voters. (This was changed by the Nineteenth Amendment, but the basic presumption that sex difference could be reflected in law was not). Furthermore, it's not, as some have speculated, that the question of quality for women was an oversight, that it was an issue that the Framers didn't get around to considering. In fact the suffragists were crying loud and long for equal rights for women at this point in American history. The framers of the Fourteenth Amendment heard their arguments, considered them, and rejected them; they simply didn't think that women should be equal to men in all (or even most) respects. Heck, they didn't think that blacks should be equal in all respects either.

OK, well what about Larry's last category, "general default rules that minimize their own discretion and maximize the predictability and certainty of the law?" I can't imagine this would justify overturning Goesart (decided in 1948) and Hoyt (decided only nine years before Reed, in 1961) and creating a new category of quasi-suspect classifications (Yes, that's what they are called in Supreme Court jurisprudence). If ever there were an example of judicial discretion and judicial activism, the Burger Court's sex equality jurisprudence is it. Indeed, as Justice Powell pointed out, there was a very good reason not to decide these cases: Congress had submitted the ERA to the states, and if the amendment had gone through what the Court did would be superflous. And the fact that the ERA was not ratified suggests that what the Court did was particularly inconsistent with principles of sound judicial restraint.

So it seems that if judges did what Larry wanted them to do, they would never have decided the sex equality cases. My view, by contrast, is that they did the right thing, and that we should be proud of what they did, and that if the Court had not created sex equality jurisprudence in the 1970's courts should do it today. That is to say, I reject the idea that Larry's account of good judging gets anywhere close to what we regard in hindsight as an important and valuable achievement of the Burger Court years. (Indeed, if there is a complaint to make about the Court's sex equality jurisprudence, it is that it was too timid, too doctrinally bound, and that it based itself too closely on previous reasoning about race and classifications based on race rather than recognizing the important differences between forms of racial subordination and sexual inequality.)

Does all of this mean that I don't think that the Supreme Court should decide cases according to law? Of course not. It's simply that I have a much more capacious view about what decision according to law is. It's not just following the rules laid down, and it's not just moving from modality to modality in hierarchical order. Judgment according to law is a matter of, well, judgment. And that judgment, particularly in the big cases, but also in the small ones, inevitably involves considerations of larger political principle, what I have called "high" politics.

The Supreme Court, and the federal courts generally, work in conversation with the political branches, not in isolation from them. Courts change the content of constitutional doctrines in response to social movement contestation and changing social mores. It's pretty clear that decision according to precedent does not explain the sex equality cases. The reasons lie elsewhere: in the Civil Rights Act of 1964 which required sex equality in employment, in the Civil Rights Movement of the 1950's and 1960's, and above all in the second wave of American feminism, which succeeded, in a very short time, in changing most Americans' attitudes about what political equality meant. Under this account, the fact that Congress had passed the ERA and submitted it to the states was a clear signal that the meaning of political equality had changed in the country, and therefore the Court was authorized to overrule its previous precedents and bring the Constitution in line with the times. Indeed, this is exactly what Justice White said to his colleagues in the conference notes on Frontiero v. Richardson. That is to say, although the standard story is that judging is supposed to be independent of politics, nothing could be further from the truth. Judgments of political principle are inextricable from legal interpretation of the Constitution, particularly its abstract generalities like equal protection, due process, and free speech. That is often true of decisions that people despise, but more importantly, it is also true of decisions, that, in retrospect, we regard as the greatest achievements of the courts, decisions that have made our Constitution the charter of liberty and equality worthy of our respect and admiration. Our Constitution is great not because it was great when it left the hands of its Framers; it has become great, and worthy of our admiration, because of what happened to it afterward, because of continuous political struggles over the larger meanings of liberty and equality that were eventually assimilated and codified by courts. That is how a Constitution originally designed to protect aristocratic white male property owners gradually was transformed into a charter of freedom.

The account that Larry offers of good judging is internalist: it tries to identify features of sound legal argument and juridical practice that are isolated from what is happening in the political world outside the courts. I think that every such account of judging is doomed to failure, not because the judicial virtues he identifies are unimportant, but because they are incomplete, and because they don't capture the historical realities of constitutional change in the United States. The more one studies the history of constitutional doctrine, the more one recognizes that the work of judges, although formally independent from politics, is never practically isolated from political contestation about the basic values of American life. That connection, which is sometimes hidden, and sometimes overt, is the by far the most important source of constitutional change, and, if I may say so, of constitutional legitimacy as well.


Saturday, May 17, 2003

JB

It Takes a Potemkin Village

The New York Times reports that American inattention to widespread looting and criminality following the Iraqi war has led to chaos in the country, with many Iraqis now longing for the peace and order of their former Stalinist strongman, Saddam Hussein.

As you may recall, Secretary of Defense Donald Rumsfeld at first downplayed the reports of widespread looting, remarking that "freedom's untidy:"

"Freedom's untidy, and free people are free to make mistakes and commit crimes and do bad things," Rumsfeld said. "They're also free to live their lives and do wonderful things. And that's what's going to happen here."

Among the many wonderful things that individual freedom-loving Iraqis have done in the month following war is carry off large parts of the country's infrastructure and electrical systems. Armed thugs now roam the streets, shooting and robbing people at will, terrorizing citizens and making them afraid to leave their homes. As a result, many stores and businesses have yet to reopen. Trade with other countries is essentially crippled because the safety of cargo cannot be guaranteed.

American troops have been slow to impose law and order on the country, exacerbating the problem and leading to growing anger and resentment among the Iraqi population:

Iraqi frustration at the power vacuum burst out this week, when Baghdad city workers pleaded with the American-run Office of Reconstruction and Humanitarian Assistance to at least issue a public announcement that citizens must obey the law.

A senior official of the reconstruction office said a statement, to be read on a local American-financed radio station, was being prepared, although it was not clear what laws were now in effect in Iraq. For many Iraqis, the damage has been done.

"We used to have a brutal dictatorship that controlled everything," said Mahmoud Ahmed Uthman, chairman of Al Khair Financial Investments Company, an investment fund that has been active here for years. "When the government collapsed, there was nothing left except a great emptiness. And that emptiness has been filled with chaos."


It is still not too late to turn things around, but it is now clear that putting Iraq back in order is going to take much longer than the Bush Administration thought, or at least was willing to admit in public. Not surprisingly, the Administration announced yesterday that plans for returning rule to a provisional government by the end of this month have been shelved indefinitely. On May 5th, General Jay Garner announced confidently that "Next week, or by the second weekend in May, you'll see the beginning of a
nucleus of a temporary Iraqi government, a government with an Iraqi face on it that is totally dealing with the coalition."

Apparently he was a bit too optimistic.

The basic problem is that the Administration has either been deluded about the way that the reconstruction of Iraq would proceed-- which tends to undermine confidence in its judgments about risk assessment in general-- or else it has simply been unwilling to tell the truth to the American people for fear of losing support for its policies. Either possibility is deeply troubling.

Tom Friedman points out yet another defect of the Bush Administration's approach-- attention deficit disorder:

The buildup to this war was so exhausting, the coverage of the dash to Baghdad so telegenic, and the climax of the toppling of Saddam's statue so dramatic, that everyone who went through it seems to prefer that the story just end there. The U.S. networks changed the subject after the fall of Baghdad as fast as you can say "Laci Peterson," and President Bush did the same as fast as you can say "tax cuts."

They are not only underestimating how hard nation building will be with this brutalized people, but how much the looting and power vacuum have put us into an even deeper hole. We need an emergency airlift of military police officers, a mobile telephone system so people can communicate, and a TV station. And we need, as one U.S. general said to me, to "take that $600 million of Saddam's money we found behind that wall, go up in a helicopter and spread it from one end of the country to the other." We have to get the economy going.

Iraqis are an exhausted people. Most seem ready to give us a chance, and we do have a shot at making this a decent place — but not with nation building lite. That approach is coming unstuck in Afghanistan and it will never work in Iraq. We've wasted an important month. We must get our act together and our energy up. Why doesn't Mr. Rumsfeld brief reporters every day about rebuilding Iraq, the way he did about destroying Saddam?


Friedman's points are well taken, and they are symptomatic of a larger problem: The Administration's boredom with the reconstruction of Iraq is only the tip of the iceberg. The Bush Administration seems to be all about smoke and mirrors, all about creating messes that other people will have to clean up somewhere down the road. It is true in Iraq, it is true in Afghanistan, it is true with respect to homeland security, and it is true of that fiscal obscenity called the Bush tax cut. It is no accident, I think, that this Administration has so perfectly refined the art of image manipulation. Image is everything. It has to be everything, for the manipulation of images is the surest path to diverting attention from the mounting problems that the Adminstration's polices are creating.

The Bush years have proven to be one giant Potemkin Village designed to fool the American public into thinking it has a strong, decisive leader who cares about us and is making us safe, strong, and secure. Yet it is quite clear, when one looks beyond the fantasy world projected on Fox News, that none of this is happening. We are not safer: Afghanistan and Iraq are both in a shambles, Al Qaeda is reasserting its muscle, Osama bin Laden and Saddam Hussein are unaccounted for, and above all the weapons of mass destruction for which we went to war and risked American lives have not been found. (Perhaps they were seized by looters in the confusion of the war, perhaps they had been destroyed long before the saber rattling began, or perhaps they were just a phantasm, the product of bad CIA intelligence.) And while the President has been making us less safe abroad, he has done little to protect the economy at home, instead pushing with monomaniacal devotion for tax cuts for the wealthiest Americans, a policy which will do nothing to stimluate the economy and everything to pad the wallets of his wealthiest contributors.

Do I sound cynical about this Administration? If so, it is because the real cynics are in the White House, working as hard as they can to pull the wool over our collective eyes. (I would have said that we are only getting what we deserve, since we elected this fellow, but in fact... well don't get me started.).

Our last President lied compulsively about what he did with his penis. Our current President lies compulsively about what he is doing to our economy and our national security. You be the judge of which has the greater potential for harm in the long run.

The Bush Administration has taken Lincoln's famous adage and turned it upside down. It is not necessary to fool all of the people all of the time, as long as one can fool enough of the people enough of the time, or at least until the next Presidential election. It takes a Potemkin Village to keep a Bush in power.


Tuesday, May 13, 2003

JB

A Bitter Harvest

The Washington Post reports the fascinating story of more than 50 Democratic members of the Texas Legislature fleeing the state to prevent the Republican controlled Legislature from imposing a new redistricting plan "orchestrated by U.S. House Majority Leader Tom DeLay (Tex.) designed to add five to seven seats to the 15 the GOP controls in the state's 32-member congressional delegation." The walkout robbed the Texas House of a quorum.

The Speaker of the House, Tom Craddick, cried foul, but it appears that some thirty years ago he staged a similar walkout. (via Atrios)

The story has lots of amusing features: for example, the Texas Rangers asked New Mexico if they could arrest legislators found there. The Attorney General, a Democrat, said no, but added "I have put out an all-points bulletin for law enforcement to be on the lookout for politicians in favor of health care for the needy and against tax cuts for the wealthy."

But the story has a more serious side. It has to do with the breakdown of bipartisan trust among politicians in Texas:

Although the immediate cause for the Democratic protest was the redistricting plan, the walkout was the culmination of what has been an extraordinarily venomous session of the Texas legislature -- and a milestone in a tectonic political shift in the state.

Republicans, who in January took control of both houses of the state legislature for the first time in 130 years, have used their new majority to push through a conservative legislative agenda using tactics Democrats regard as heavy-handed to the point of brutishness. On tort reform, school financing, home insurance and other issues, the GOP has pursued its agenda aggressively, refusing Democratic input in a state that has been run with a certain degree of bipartisanship in recent years.

A target of the Democrats' discontent has been new Republican House Speaker Tom Craddick. The longtime lawmaker has pushed for items on the GOP agenda with little regard for the Democrats' sensitivities. Congressional redistricting was the most contentious of those issues, and the final straw for many Democrats. "I'm not concerned if [redistricting] splits the House up," Craddick told the El Paso Times last week. "To be blunt, on the Republican side, the leadership has changed and so has the agenda."

He added that the redistricting bill would go to the floor, where "the fight will be loud, and the Republicans will win." The bill would carve up a number of congressional districts held by Democrats, in some cases creating bizarrely shaped boundaries connecting seemingly unrelated parts of the sprawling state, and slicing up neighborhoods. For instance, in Austin, a city of 678,000 and one of a dwindling number of Democratic enclaves in the state, a single downtown street would be divided into four congressional districts, one of them tortuously connected with the Mexican border about 300 miles away.


The flight of Democrats in Texas, I think, mirrors the current unhappiness in Washington over judicial nominations. Politicians resort to extreme measures when they feel that they can't really trust the party on the other side of the aisle.

Multiparty democracies like ours require trust between elites in opposing parties if democracy is to function effectively. When trust breaks down, the wheels of government grind to a halt, and bitter recriminations ensue.

I well understand that it takes two to tango, and that Democrats have contributed to partisan bickering. But I do think the causes of the current breakdown in trust are assymetrical. They lie in the astounding success of the conservative social movements of the 1980's and 1990's.

The contemporary Republican Party, which is currently dominated by its southern and western wings, has been effectively taken over these conservative social movements, which have brought the Party considerable electoral success in the past twenty years. Many members of these conservative social movements share the zealotry characteristic of true believers, and they are disinclined to compromise their principles. But a more important feature of the conservative social movements that have taken over the Republican Party, and by extention, American politics, is their taste for hardball politics and their fondness for authoritarian rhetoric and tactics. These authoritarian strains are, if anything, more important to understanding our current predicament than the ideological purity of Republican conservatives.

I realize that "authoritarian" is a strong word, but I will use it nevertheless, for it helps us understand the dynamic of American politics in the last two decades. As the Republicans have grown stronger, they have grown bolder, and more determined to have their way regardless of the consequences. Their rhetoric has become more fervent and exclusionary. Their disdain for their political opponents has grown more overt. They have perfected the art of smashmouth politics, believing, often accurately, that the Democrats don't have the guts to stand up to them. The feebleness of liberal responses to conservative attacks has emboldened hard right conservatives even more, and caused them to see liberal Democrats as not only wrong but also as servile, worthless, and unpatriotic. Their rhetoric, and their unwillingness to compromise, have ratched up accordingly. These trends have helped accelerate the breakdown of trust in Washington, and, if the story I quoted above is accurate, in Texas as well.

I have no essential objection to political hardball. It is part of the game of politics. And I believe that people should fight hard and long for the principles they believe in. I admire the perseverence and the principled behavior of social movements. I wish that the Democrats had some of the energy and zeal that I find in Republican politicians today. But I think that the right wing movements of the 80's and 90's, now having reached the pinnacle of power, have overreached. They have become so focused on winning, on grinding the Democrats into the ground and utterly destroying them, that they have begun to eat away at the foundations of cooperation on which multiparty government rests. Bullying your political opponents is not a one size fits all solution to what ails America. And if you keep on bullying people in politics, smearing them as unpatriotic fools, you will undermine the give and take that makes democracy possible.

Our country has been through bad scrapes before. I have no doubt that trust and bipartisanship accomodation can be restored. But I think things have begun to get out of hand. The fact that the Democrats have begun to fight back in the ways they have, resorting to extreme measures like judicial filibusters of lower court nominees in Washington, and fleeing the state in Texas, is a very bad sign. We can laugh about the legislators slipping out of Texas and being chased by Texas Rangers in Oklahoma. But the slow, destructive poison that has crept into our political system is no laughing matter.


Saturday, May 10, 2003

JB

Throwing in the Towel on Weapons of Mass Destruction

The Washington Post reports that Task Force 75, "the principal arm of the U.S. plan to discover and display forbidden Iraqi weapons," is winding down operations and preparing to leave Iraq next month, unable to find any weapons of mass destruction.


Leaders of Task Force 75's diverse staff -- biologists, chemists, arms treaty enforcers, nuclear operators, computer and document experts, and special forces troops -- arrived with high hopes of early success. They said they expected to find what Secretary of State Colin L. Powell described at the U.N. Security Council on Feb. 5 -- hundreds of tons of biological and chemical agents, missiles and rockets to deliver the agents, and evidence of an ongoing program to build a nuclear bomb.

Scores of fruitless missions broke that confidence, many task force members said in interviews.

Army Col. Richard McPhee, who will close down the task force next month, said he took seriously U.S. intelligence warnings on the eve of war that Hussein had given "release authority" to subordinates in command of chemical weapons. "We didn't have all these people in [protective] suits" for nothing, he said. But if Iraq thought of using such weapons, "there had to have been something to use. And we haven't found it. . . . Books will be written on that in the intelligence community for a long time."
...

Motivated and accomplished in their fields, task force members found themselves missing vital tools. They consistently found targets identified in Washington to be inaccurate, looted and burned, or both.


Even as Task Force 75 is winding down operations with little hope of finding weapons of mass destruction, the Administration is insisting that the search has just begun. In his statement of victory aboard the U.S.S. Abraham Lincoln, President Bush asserted that the search was only in its initial stages, with hundreds of sites to be investigated.

I well understand the need of the Administration to save face about coming up short in its major justification for sending American troops into combat. But at some point the Administration should feel some compunction to be more honest with the American public about what it is doing. It seems increasingly clear that the war in Iraq will have to be justified in hindsight for reasons other than the Administration said it would be fought. The justification will be the creation of a democratic republic in Iraq rather than stopping the threat posed by Saddam Hussein's weapons of mass destruction. It is unlikely that the public would have supported the war without the Administration's confident assurances that Hussein possessed weapons of mass destruction that someday would pose a threat to the United States. Those confident assurances appear to have been overconfident. As a result, the Administration is hoping that the fact of a decisive victory will paper over serious concerns about the honesty of its representations to the American people and the reliability of its weapons intelligence.



Wednesday, May 07, 2003

JB

Oh How I Love Them Frenchy Jokes!

Here's a great joke that's been making the rounds, and has been attributed to Tom Delay. I'm quoting a version courtesy of Eugene Volokh:


American to Frenchman: "Do you speak German?"


Frenchman: "No."


American: "You're welcome."


Come on, that's funny, guys.

And here's another one I'm sure you'll enjoy equally well:


Frenchman to American: "Are you a subject of Her Majesty the Queen of England?


American: "No."


Frenchman: "You're welcome."


Yes, I'm afraid its true. The Frenchies pulled our proverbial chestnuts out of the fire in 1778 when the Marquis de Lafayette arrived to whip our troops into shape, and France recognized our government and signed the the Treaty of Alliance and the Treaty of Amity and Commerce. Once France entered the war on the side of the Americans,
Great Britain was forced to defend the rest of its empire, fearing attacks in, among other places, the West Indies. They scattered their troops and resources, making them too weak to battle the Americans effectively in the colonies.

The French played a crucial role in the endgame too. By August 1781, Washington and Rochambeau (yes, a frog, if you are wondering) learned that a large French fleet under Admiral Francois de Grasse (zut alors, un autre frog!) was headed toward Virginia to prevent General Cornwallis from escaping by sea. That led Washington and Rochambeau to rush their forces southward to Virginia to trap Cornwallis on land. (In fact, although Washington had wanted to stay up north and attack New York, it was Rochambeau who convinced him that the best strategy was to turn south. Very devious, those frenchies!) By September 1781, Cornwallis knew his goose was cooked, as a combined French and American force of about 18,000 soldiers and sailors surrounded him at Yorktown. (Mon Dieu!) He surrendered on October 19, 1781. The treaty recognizing independence was not signed until 1783, appropriately enough, at Paris. However, during this period, the interests of the French and Americans began to diverge, (as they would so many times in the future) and the Americans negotiated a separate peace.


In any case, mes amis français, merci beaucoup! Je penserai à vous sur le 4ème juillet!




UPDATE: By the way, who exactly is this Tom De Lay guy, anyway? Is that a *French* name?

Better keep an eye on him.




Monday, May 05, 2003

JB

Were We Lied To?

Neil MacKay of the Sunday Herald reports:

The Bush administration has admitted that Saddam Hussein probably had no weapons of mass destruction.
Senior officials in the Bush administration have admitted that they would be 'amazed' if weapons of mass destruction (WMD) were found in Iraq.

According to administration sources, Saddam shut down and destroyed large parts of his WMD programmes before the invasion of Iraq.

Ironically, the claims came as US President George Bush yesterday repeatedly justified the war as necessary to remove Iraq's chemical and biological arms which posed a direct threat to America.

Bush claimed: 'Saddam Hussein had weapons of mass destruction. We will find them.'

The comments from within the administration will add further weight to attacks on the Blair government by Labour backbenchers that there is no 'smoking gun' and that the war against Iraq -- which centred on claims that Saddam was a risk to Britain, America and the Middle East because of unconventional weapons -- was unjustified.


Pauline Jelinek of the Associated Press tells the story a little differently:

In the American hunt for Iraq's banned weapons, drums of suspicious chemicals turn out to be crop pesticide; a cache of white powder is found to be explosives.

More than six weeks into the Iraq campaign, there has been a string of false alarms but no discovery of what the Bush administration said was its main justification for going to war chemical, biological and nuclear weapons programs.
....

"I'm absolutely sure that there are weapons of mass destruction there, and the evidence will be forthcoming,' Secretary of State Colin Powell said Sunday.

But after scores of fruitless searches, other administration officials privately have stopped promising that. Some now say that instead of finding weapons stockpiles, they might find nothing more than documents and other evidence that the program once existed and was either destroyed or abandoned.

"Politically, this could be a big problem,' said Paul Keer of the Arms Control Association, a Washington disarmament group. "If it turns out they ... exaggerated, people will say we attacked without justification some are starting to say that now.'

Before the war, administration officials did not just say Iraq had weapons of mass destruction, they also said they knew where some of them were.

In an unsuccessful bid for U.N. approval for the war, Powell showed the Security Council satellite photos and intelligence he said indicated weapons were being moved, and he named sites where he said chemical weapons were held.

"The intelligence community still stands behind that information. I do,' he said Sunday.

U.S.-led teams of military and civilian experts have reported finding nothing conclusive, however, after visiting most of some 100 sites that prewar American intelligence agencies said were the most probable hiding places. Hundreds more sites remain.

Expected intelligence from senior captured Iraqis who might have been most knowledgeable about the government's secrets is not materializing. One by one, they are insisting under interrogation that the government had no chemical, biological or nuclear weapons programs in recent years, U.S. officials say.

Pentagon officials said just days before the war that they had intelligence that chemical weapons had been distributed to some Iraqi military units. None has been found.
....

Arguing for patience, Loren Thompson of the Washington- based Lexington Institute noted that U.N. inspections struggled with Iraq for a dozen years and could not find all they were looking for.

"I don't think the expectation was that this stuff would be sticking out like a sore thumb,' he said. "I think eventually they'll find the weapons, but the important point is that the government that would have thought to use them against us is gone.'

Some critics maintain that is not the point at all. They say the question always has been not whether Saddam had weapons, but whether those weapons were a big enough threat to the United States to justify war.

"If the Iraqis did not use them ... to defend an invasion of their own country, when were they ever going to use them, and how were they a threat to the United States?' asked Cato Institute's Pena. "That's the question that has to be asked and is being glossed over.'


I must confess I did not much trust the Bush Administration's stated reasons for going to war, which were ever changing. Many Americans will simply take comfort in knowing that we won a swift military victory and elminated a despicable tyrant. Nevertheless, I can't help but think that if the Administration is proved wrong about its central justification for going to war, that does not inspire much confidence in their foreign policy. Either they lied to us, or their intelligence isn't very good. Neither alternative is acceptable. I for one don't particularly like being lied to about why my government is using deadly force. And I don't like my government going off to war if its intelligence is as incompetent as it would have to have been to avoid the conclusion that we were being lied to. At some point, I fear, either the Administration's dishonesty or its intelligence failures will catch up with it. That can't be a good thing.


UPDATE: Ken Fireman reminds us about the President's stated justifications for war:

On March 17, with war in Iraq just 48 hours away, President George W. Bush laid out in clear and succinct terms the rationale for the military action he was about to unleash.

"Intelligence gathered by this and other governments leaves no doubt that the Iraqi regime continues to possess and conceal some of the most lethal weapons ever devised," the president said in a televised address to the nation from the White House.

"This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people. The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al-Qaida.

"The danger is clear. Using chemical, biological or - one day - nuclear weapons obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people, in our country or any other."


Fireman continues:

U.S. officials now acknowledge that Hussein may have destroyed or transferred at least part of his alleged arsenal before the war began. No new evidence has been uncovered on Hussein-al-Qaida links to buttress an administration case that many analysts have long regarded as tenuous. And an Iraqi army that Washington repeatedly portrayed as a major security threat to the region proved to be incapable of defending its own territory, let alone waging offensive operations against a neighbor.

This state of affairs has led some foreign affairs analysts to conclude that the Bush administration had something else in mind when it planned, organized and launched the war: a high-profile demonstration of American military might and the political resolve to use it that would reverberate through the Middle East and beyond, causing governments as near as Syria and Iran and as far away as North Korea to recalibrate their actions.
...

"I think the president and other senior officials were captivated by the neoconservative vision of a world transformed by American military power," says Joseph Cirincione, an arms control expert at the Carnegie Endowment for International Peace. "It promised a quick, dramatic improvement in U.S. national security, and control of a critical global resource, that the United States could do completely on its own without bothersome multilateral bodies."

The question, in the minds of Cirincione and other like-minded experts, is whether an administration determined to remove Hussein from power grossly inflated his military capabilities in order to sell its policy to the public.

"It was the only way to get the American people to go to war against Iraq," Cirincione said. "You couldn't get the American people to go to war to free the Iraqi people and overthrow an evil regime, because there are lots of evil regimes in the world. So they cited two reasons: that Hussein possessed weapons of mass destruction and Hussein had operational ties to al-Qaida.

"Neither appears to be true. I think this story is still developing. I think we're on the edge of realizing that this was either a massive intelligence failure - or a deliberate campaign to mislead the American people."


Say it isn't so, George, say it isn't so.


Sunday, May 04, 2003

JB

”High” Politics and Judicial Decisionmaking

Larry Solum rejects my distinction between high and low politics:

[T]he distinction between high politics and low politics .... [is a] conjuring trick. If the universe consists of decisions that are either high politics or low politics, then it's all politics. But it isn't all politics. The crucial distinction is not between political decisions that favor your ideology and those that favor your party. It isn't even between political decisions that are based on general principles you believe in and those which adopt principles you abhor to get to the results that you like. The crucial distinction is between decisions that are based on the law--on things like texts, history, and precedent--and decisions that are based on politics.

I think Larry has misunderstood the distinction I am making, which arises out of a larger theory of constitutional change that is intended as an alternative to my colleague Bruce Ackerman's. I am certainly not claiming that there is only politics in legal decisionmaking. Plenty of legal decisiomaking could not be so understood. Rather, I am trying to give an account of how opposed political visions legitimately operate in the context of *legal* decisionmaking, and what sort of political motivations should be viewed as inappropriate. The notion of “high politics” helps us understand how constitutional doctrine changes over time in relatively predictable ways given the appointments process and the changing personnel of the courts.

It’s very hard for me to separate *in practice* lots of Supreme Court decisions that are “based on the law” from those that are “based on high politics,” where by “high politics” I mean the invocation of larger visions about the key values that should underlie our understanding of the Constitution. This is not a claim that there is no difference between law and politics. That is certainly not my view. Rather it is a claim about how we characterize legal decisionmaking in the sorts of complicated and controversial cases that appear before the courts, and particularly the Supreme Court of the United States.

Decisions come before the Supreme Court because, for the most part, the Court is being asked to decide difficult legal questions for which there are a number of plausible legal solutions that make use of the familiar modalities of text, history, structure, doctrine, non-judicial precedents, consequences, and appeals to the ethos of the nation. Not every solution is equally plausible, but in most cases that come before the Supreme Court there is usually more than one way to decide the case consistent with the existing norms of legal argument. You and I might think that one solution is clearly better than all of the others, but very often (especially if you have views about the Constitution like mine) that solution is not the one chosen by the Court, and the solution the Court does choose becomes law nevertheless, and you have to deal with it in succeeding cases.

Now which solution seems to you or me to be most persuasive as a *legal* matter may have something to do with our constitutional politics– our views about the political principles and values that we think the Constitution read in its best light espouses– and our views about how those principles and values should be applied to the facts of the case as we understand those facts. As Justice Frankfurter once put it, a lot depends on the pictures of the world inside a judge’s head when a judge makes a decision. We can call those pictures ideology, or political or moral beliefs, or whatever you like. But the point is that people have them, and they influence how they see the world, and what is good and bad in it, and what could be improved in it, and also the best way to read and interpret the basic law of our nation, our Constitution.

When these pictures inside our heads, our ideology, our constitutional vision, frame what we think is the best understanding of our Constitution, which they inevitably do, should we regard this decisionmaking as not really “based on law” but instead secretly “based on politics?” It is very hard for me to accept that duality. Rather, I think that if you put someone on the bench, and ask them to take an oath to uphold the Constitution of the United States, and find the best *legal* solutions to questions of law, using the traditional modalities of text, history, structure, etc., you will simply get different answers to lots of important constitutional questions (but hardly all or hardly even the majority of such potential questions) depending on what Frankfurter called the pictures inside their heads. I don’t think this is a radical view about the relationship between politics and law. Indeed, I think it is just common sense.

Now the point of the distinction between high and low politics is that we *expect* that judges will promote their visions of what the Constitution means and should mean as they wrestle with the legal issues before them, and that it is not surprising that if you appoint nine conservative jurists to the Supreme Court of the United States that the constitutional law they produce will, in time, look significantly different than the constitutional law that would be produced by a Court staffed with nine liberals. But this does not mean that either of these hypothetical benches is necessarily deciding according to politics but not according to law. It just means that people disagree about what the best meaning of the Constitution is, and they tend to promote their favored view in *legal* argument, and, if they are Justices, write those views into law, where they become the doctrinal substrate for future decisions.

It is important to recognize that this is not a claim that the law is radically indeterminate. Quite the contrary: It assumes that the law (even Constitutional law) has pervasive elements of relative determinacy to it. Why is that? Because if the law were so indeterminate, there would be no point in fighting to put liberals or conservatives on the bench in order to move the law in a particular direction that would bind future jurists. The reason why it matters who sits on the bench, paradoxically, is that the law is only partially, or modestly underdetermined from the standpoint of existing legal norms of practice. The content of a case like Roe or Miranda, or Croson, or Alden v. Maine actually matters. It matters a lot.

Furthermore, it is important to recognize that a lot of what judges do is not simply following the rules laid down, in Mark Tushnet’s phrase, but rather involves doctrinal innovation. Courts make up new distinctions and doctrines to solve problems. These distinctions and doctrines are genuinely new in the sense that you couldn’t have easily derived them from previous doctrinal structures, much less from history, structure, text, and original understandings. Examples are the direct/indirect distinction in early 20th century commerce clause cases, the rejection of this distinction and the creation of the substantial effects test and the cumulative effects test in Darby and Wickard, the “congruence and propotionality” test in Boerne, the actual malice rule in New York Times v. Sullivan, the “public figure” doctrine as developed in later cases, the public forum doctrine, and so on. Indeed most of constitutional law is made up in this way at one point in time or another. It does not come from the text, history, and structure, but is creatively produced and inserted into doctrine in order to articulate and realize deeper constitutional values. These innovations are crucial in shaping the later development of constitutional law. And it is simply the case that people with different pictures in their heads, different ideologies, different visions of constitutional politics, will innovate in different ways. Justice Sutherland, for example, would not have come up with the “substantial effects” test; Justice Scalia, one suspects, would not have come up with the “endorsement” test in Establishment Clause cases, much less the three pronged test of Lemon v. Kurtzman.

To make a distinction between high and low politics, then, is to make a distinction about the relationship of ideology to the work of legal decisiomaking. It is ok for a judge to say, “I decided this case this way because I believe in decentralization as a principle that underlies our Constitution,” or “I am deeply suspicious of the ability of schoolboards to keep religious practice out of the public schools if they are given this degree of discretion,” or even “I think that gay people have a right to form intimate relations with those they love just like everybody else.” If one reads the conference notes of members of the Surpreme Court in decisions, this is precisely how they talk amongst themselves in explaining how they decide cases. It is ok for judges and Justices to have constitutional politics, to have larger visions of what the Constitution means or should mean and what rights Americans have or should have. That is what I mean by “high politics,” and there’s nothing wrong with judges having such views.

If what I have said is correct, then it is very difficult for Larry to insist, as he appears to do that Court’s shouldn’t be making decisions based on high politics, but just ones “based in law.” I don’t know how to parse that distinction. And anybody who pays careful attention to how Constitutional law actually changes over history, in countless doctrinal areas, can’t make sense of it either. Constitutional law changes over time because of the influence of high politics, which is worked out through legal argument, not outside of it. And we should just get used to that fact. Like the old joke about baptism, I not only believe in it, I’ve seen it done.

The description of Bush v. Gore as “low politics” is a claim that the decision cannot be understood as the fulfilment or promotion of a larger constitutional vision, but rather is a fairly transparent attempt (in the stay and remedy portions of the two Bush v. Gore opinions) to manipulate doctrine in order to place George W. Bush in office. I will repeat what I said before: By now most people understand that judges pursue “high politics” through their legal arguments. What they are not supposed to do is pursue is “low politics” in the sense of manipulating doctrine to secure advantages for their favorite political party. That is not simply because “low politics” is bad politics. It is because it is also bad legal decisionmaking. It is inappropriate to the judicial role in the way that the pursuit of “high politics” is not.

Larry seems to think that my use of the “high politics/low politics” distinction means that there is only politics and no law. I take issue with that characterization. I think that the distinction captures what we mean by decisions according to law where people disagree about constitutional values and doctrine is moderately underdetermined. High politics is the great engine of constitutional change. It is inextricable from the life of our Constitution. It is the explanation of the great doctrinal transformations that we see in history of constitutional doctrine, and, I would submit, the explanation of the conservative constitutional revolution we are living through now. I disagree with that constitutional vision. I think that the doctrinal innovations of the conservative five are ill-considered and false to the best interpretations of our Constitution. But I don’t think that judges should refrain from pursuing deeply held constitutional visions in the development of constitutional doctrine through legal arguments. Quite the contrary: that is their job.


Saturday, May 03, 2003

JB

Is Bush v. Gore Sauce for the Goose?

At the end of his discussion of the appointments process, Juan Non-Volokh adds this interesting point, which I cannot resist commenting on:

[M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.

I've heard this argument many times since Bush v. Gore was decided. I take the point, but I also think that the it's also a bit misleading in two ways.

First, there is an important distinction between Bush v. Gore and liberal decisions like Roe, Miranda, and Baker v. Carr. It is the difference between "high" politics and "low" politics. Here I will simply quote from my Yale Law Journal article:

Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"-larger political principles and ideological goals-they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power.

When we look at the decisions of the Warren Court and early Burger Court, most of them do not seem to be examples of Justices engaged in "low" politics-- making decisions that will help Democrats win future elections. Rather, most of them are examples of "high" politics-- promoting a liberal ideology. Indeed, many of the most famous liberal decisions of this era, including Miranda, Roe, and the busing case, Swann, actually harmed the Democratic party's electoral chances, because they made the Supreme Court a convenient target to run against. Both George Wallace and Richard Nixon used the Warren Court as a convenient foil in their campaigns, and so would many other conservatives in the years following. So Bush v. Gore seems to me to pose a quite different problem of judicial misbehavior than Miranda or Roe. It's not just a case of Justices "making stuff up" in order to promote a conservative ideology through the development of judicial doctrine. It's Justices "making stuff up" in order to put Republican candidates in office. In fact, the majority opinion in Bush v. Gore doesn't really promote any important values normally associated with conservative causes, and the most badly reasoned parts of the decision, the initial stay and the remedy-- stopping the counts instead of remanding for further proceedings consistent with the Equal Protection Clause-- don't have any particular ideological spin at all. They are simply unsupportable exercises of judicial discretion. This is not what liberal decisions of the 1960's sowed, for the liberal decisions in the 1960's could not plausibly be understood as attempts to boostap Democrats into office; indeed, they were done precisely with the expectation that many of them (like Miranda) would not be popular and would precipitate a backlash. Certainly Baker v. Carr did not immediately help Democrats, for it actually undercut the power arrangements that had propped up in the largely Democratic one party South. And anyone who thinks that Roe and the busing cases were thinly veiled attempts to get more Democrats elected to office has been smoking something very strong indeed.

Thus, conservatives might well object to the revolutionary work of the Warren Court, but that objection is somewhat different than the objection that liberals might have to Bush v. Gore. Here let me quote a passage from a Virginia Law Review article that I wrote with Sanford Levinson:

The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court’s behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern “high politics”—the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. Thus, one might criticize [the Court's recent federalism decisions] because one disagrees with the political principles of the five conservatives, which, one believes, are false to the best understandings of the Constitution.

But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of “high politics.” The five conservatives were the least likely, one would think, to extend the Warren Court’s equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed—and Vice-President Gore had been ahead by 537 votes—the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth—and, equally importantly, contrary to the ways that they usually innovated—in order to ensure a Republican victory and keep their constitutional revolution going. It was obvious to everyone—including the Justices—that many of the key cases in this revolution have been decided by a bare 5-4 majority, and that the party controlling the White House in the next decade would determine the fate of the revolution. Conservative Justices would propel it forward; liberal Justices would curtail or unravel it. With a Republican in the White House, conservative Justices could retire with the expectation that they would be replaced by persons of like mind. If one of the more liberal Justices left the Court, the conservative majority might even increase.

Even if these thoughts never entered the mind of any of the Justices, the circumstances of the decision created the appearance of a conflict of interest and a strong inference of impropriety. The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray, but they seemed altogether too eager to get involved. Had Bush v. Gore been an easy case involving clear precedents and rigorous legal argument, one might put some of these concerns to rest. But Bush v. Gore is so shoddily argued and so badly reasoned—from the initial stay on December 9 through the bizarre chain of reasoning that justified the remedy —that it is almost impossible to believe that the best explanation of the result is the internal logic of the law. The case is not only unpersuasive; it is an embarrassment to legal reasoning.

To be sure, the Justices who have spoken out since the decision was handed down have denied that any political motivations or calculations were involved. Justice Thomas, for example, has insisted that the Court has never been motivated by partisan considerations during his time on the bench, that the last political act that Justices engage in occurs during their confirmation hearings, and that he never thought about the political result in Bush v. Gore but was concerned only about the proper implementation of the law. But the more the Justices offer these protestations, the more unbelievable they seem. There is no reason to believe them unless one credits the notion that members of the judiciary are almost altogether different from other Americans who have succeeded in the political world and that they have no agendas of their own or any desire to leave a “legacy” in their decisions.


The claim that Bush v. Gore allows liberals finally to "know what it feels like" is misleading in another respect. The argument seems to assume that until Bush v. Gore the liberals were basically in control, that all of the judicial shenanigans one might have complained about in the 1980s and 1990's were liberal decisions. It makes it sound as if there has been no conservative judicial activism in the recent past, and that conservatives have been repeatedly victimized by an unreleting stream of liberal decisions from the moment that Earl Warren ascended to the bench to December 12, 2000. This is fantasy. Earl Warren has been dead for over thirty years. The Democrats got no Supreme Court appointments from 1967 to 1994. From the retirements of Warren and Fortas to the present day the Supreme Court has become increasingly conservative, and has been in a relatively continuous conservative retrenchment in a whole host of areas, including criminal procedure, the rights of the poor, and race relations. Anyone who has actually been following what the Court has been doing must have noticed that Brennan and Marshall started to write a whole lot of dissents starting in the early 1970's, and they didn't stop. They kept on losing. And losing. And losing. And losing, in a whole host of areas.

There are two big exceptions to this trend. Both have to do with women. The first is Roe v. Wade. The second is the creation of equality jurisprudence for women. However, I take it that when conservatives complain about liberal judicial activism, they are not saying they are very upset that women are now protected from discrimination. (Bush v. Gore-- ha! Now you liberals know what we felt like when women got equal rights!) They are mostly complaining about Roe, and the fact that it hasn't been overruled. That's fair enough, although one must admit that Casey cuts back considerably on Roe and cases like Akron and Thornburgh.

But the more important point is that, particularly in the decade since Clarence Thomas was appointed, the conservative Justices have been striking down statute after statute using what, from a liberal perspective, is just made up stuff. Those decisions, particularly in the federalism area, and not Bush v. Gore, are really the sauce for the goose that Juan is talking about; they, and not Bush v. Gore are the demonstration to liberals of what it is like to be on the wrong side of a constitutional revolution. My point is that those sorts of decisions have been coming out of the Supreme Court of the United States for a very very long time. To pretend that they have not is to pretend that conservatives haven't been controlling the courts, and winning most of the battles for quite a few years now.

The idea that liberals never understood this until Bush v. Gore, and that now, finally, they are getting their righteous comeuppance, is bizzare. Anyone with a leftist sensibility, and any sense of history, knows that the Supreme Court has rarely been a liberal institution. It has always been an elite institution, but throughout most of its history it has been run by conservative elites. From the larger historical perspective, the Warren Court was just a blip on the screen. Knowing this, it is hardly surprising that progressives, not conservatives, have argued for judicial restraint at many points in the Nation's history. For the past decade at least, progressive scholars have been increasingly critical of judicial supremacy and what they see as conservative judicial activism run riot. Bush v. Gore was not the wakeup call; if anything, it simply confirmed what progressive constitutional scholars had known for some time: If you hand the Supreme Court over to people on the opposite side of the ideological spectrum, they will do lots of things that you think are very bad to the Constitution. They will do this both through upholding government actions that should be struck down as unconstitutional, but equally importantly, they will do this by striking down laws and policies that should be upheld.


Thursday, May 01, 2003

JB

A Fight Over Judicial Nominations in Extraordinary Times

Responding to my previous post on the judicial appointments process, Juan Non-Volokh points out that following the Fortas nomination, Democrats blocked two of Nixon's appointees in the 1970's (although the case is somewhat different because the Haynesworth and Carswell nominations actually came to a vote) and that in 1986, when the Dems regained the Senate, they began a practice of slowing down judicial appointments in the last two years of both the Reagan and George H.W. Bush presidencies. Hence my claim that the Dems rolled over and played dead until the George W. Bush presidency is, in Juan's words, "just plain wrong."

It's not clear how much Juan and I disagree, since I was looking at the years from 1992 to the present, and he's looking at the period from 1968 onwards. My view is that slowing down of judicial appointments-- which both the Dems and the Republicans did before the Clinton Presidency, is within the rules of the game, as long as it doesn't go too far. In fact, an important part of the checks and balances that come from having a Senate with opposition politicians is that the Senate can put up some resistance to partisan entrenchment by the President's party with the goal of generating more moderate judicial appointments from the President. Whether Juan agrees with me or not on this, I continue to think that the contemporary Democratic Party has been much more passive than they should have been and the Republicans have had the zeal of a party that has been taken over by a social movement. My sense is that Clinton generally responded to Rebublican delaying tactics by nominating more moderate candidates and avoiding nominating too many liberals. George W. Bush has responded to Democratic delays by sticking to his guns and continuing to nominate candidates who are strongly ideological. By focusing only on the Senate's behavior, Juan has neglected how the separation of powers works-- how the President responds to challenges from the Senate. It takes two to tango, and it takes two branches of government to cause a train wreck.

Juan concludes:

If Balkin wants to claim that Democratic hardball in judicial fights is a response to the 2000 election controversy, he has to explain why Democrats were slowing down judicial nominations in the 1980s and early 1990s.

My explanation is that what the Dems were doing in the early 1980's and 1990s is part of ordinary politics. What the Dems have doing following the 2000 election-- particularly the Estrada fillibuster-- is extraordinary. Fillibusters on judicial nominations are rare. Don't get me wrong-- the Dems have confirmed a number of Bush's judicial appointments. But they have also fillibustered Estrada, and that is something you just don't see every day.

Juan doesn't like what either party has been doing, and he doesn't like fillibusters. By contrast, I'm somewhat more tolerant of delaying the most strongly ideological nominations by a President of the other party as a signal that the President and the Senate should come to an accomodation. In my view, that's part of the way that the two branches check and balance each other.

I guess that the biggest difference between Juan and myself is how to view the meaning of current historical events. Juan sees the current strife as an example of accelerating misbehavior by the two major political parties during a time of essentially normal politics. My view, by contrast, is that we are no longer in an ordinary period of constitutionalism. The election of 2000 was a trauma, an extraordinary constitutional event. To be sure, Bush could have diffused the trauma by nominating more centrist candidates, thus signalling that he would deal with the contested election by forging an accomodation with the other party. Instead, he pushed for strongly ideological candidates in order to complete a constitutional revolution. Not only did he do so without a popular mandate as Roosevelt had, but, in the minds of many Democrats (including myself, I might add), he did not even win the election. The Dems view this attempt to amend the constitution through partisan entrenchment as deeply unfair. They see the Constitution as in danger, about to be taken over by ideological extremists. They love the Constitution as much as the Republicans do, and they view the Constitution as under siege. That is what explains how a party of softies suddenly got a spine, and did what neither party has done for more than a generation. Extraordinary times lead to extraordinary measures.

I think that many folks on the other side of the political divide don't quite get how angry many Dems are about the election. They well understand that Dems are upset about losing the Presidency, but what they don't quite understand is that it's more than just being sore losers-- the Dems think that something *illegal* happened. They don't get how seriously many Democrats feel that our constitutional system has been hijacked by people they don't trust. The Bush Administration, in turn, has done little to reassure them that it will play nice or play fair, or that it will use its powers with restraint. Indeed, the Bush Administration has cultivated a reputation for taking no prisoners. (Or to put it another way, the only prisoners the Bush Adminstration takes are being held at Guantanamo Bay.)

If you look at current events from this perspective, I think you can see why the confirmation process has broken down. It has broken down because trust has broken down, and trust is what keeps the wheels of government working smoothly even when people have strong disagreements about public policy.




Wednesday, April 30, 2003

JB

Why the Confirmation Process is Broken

I've said very little about the fights over Miguel Estrada and other Bush judicial nominees. Howard Bashman has had exemplary coverage of the issues for those who are interested. The decision by Democrats to fillibuster some nominations and hold up others is explicable in part by the fact that the Republicans did not behave themselves very well during the Clinton years. But I think something else is going on.

Generally speaking, much constitutional change occurs not through amendments under Article V but through interpretation by Article III judges. The best way to change the Constitution is through stocking the courts with your ideological allies, a process that Sandy Levinson and I call "partisan entrenchment." Some presidents make judicial appointments as political favors, or to reward friends. But some presidents consciously set out to restock the courts according to an ideological vision. Roosevelt's Supreme Court appointments, for example, were designed to give constitutional legitimacy to the New Deal. The sea change in constitutional understandings that occurred after 1937 is due less to the Court's famous "switch in time" in West Coast Hotel and NLRB v. Jones and Laughlin than to the fact that by 1940 Roosevelt had been able to replace several conservative jurists with New Deal acolytes. For better or for worse, this is how our Constitution changes.

Of the two major political parties, the Republican Party has been considerably more devoted to the goal of partisan entrenchment in recent years. That is because the conservative social movements of the past thirty years, which helped the Republicans gain repeated electoral victories, saw the federal courts, and particularly the Supreme Court, as liberal elite institutions out of touch with popular morality and American values. For this reason, Reagan and the two Bushes have tended to value ideological purity in judicial appointments somewhat more than Clinton did. Republicans, or at least the hard right of the party, really cared a lot about judicial appointments, and wanted to change the Constitution to their way of thinking. To a considerable extent they have succeeded, but not in all respects. There is still a great deal more work to be done.

The Republican strategy of delaying Clinton's appointments was part of this crusade to remake the courts. Many Republicans didn't think Clinton deserved to be president in the first place, and they quickly recognized that he could be pushed around. So they fought hard to keep many of his nominees from getting a hearing. And they succeeded in a number of cases. Elena Kagan, who is going to be the next Dean of the Harvard Law School, was nominated to the D.C. Circuit, but never got a vote. (Incidentally, had she gotten a chance, President Bush would not have been able to nominate Miguel Estrada to fill the same vacant slot on the D.C.Circuit.)

Until the Bush Presidency, the Democrats tended to roll over and play dead when the Republicans played hardball on judicial appointments. Why did things change? The reason is simple: The election of 2000 infuriated their base and convinced many Democrats (yours truly included) that a serious miscarriage of justice had occured (more about that here). Five conservative justices on the Supreme Court had handed the Presidency to the man who would appoint more conservative Republicans to be their colleagues and successors. Once Bush took office, he made clear that he would not govern from the center; rather he would govern from the right, and his judicial appointments contained many strongly ideological conservatives. It became clear to the Democrats that the Republican agenda of stocking the courts with strongly conservative ideologues would continue apace, and even be accelerated during the Bush administration.

The view among many Democrats was that the election had been stolen, and thus the power to appoint judges and Justices had been improperly given to the Republican Party by five conservative Republican Justices. Most Democrats in the Senate did not openly talk this way, since they well understood that the public did not want a continual rehash of the election, particularly after 9/11, but they thought it nevertheless. And many were particularly incensed that Bush would use the legitimacy he gained as Commander-in-Chief arising out of 9/11 to push for strongly ideological appointments to the judiciary. For this reason they thought it important to indicate to the Republicans that they would resist what they regarded as the most egregious appointments at the circuit court level. In other words, I think that the broken down judicial appointments process is not just payback for Orrin Hatch's stonewalling during the Clinton years. I think it is also due in part to outrage at the election, and outrage at the Supreme Court's apparent conflict of interest in handing the Presidency to the party that the members of the Court's five-person conservative majority preferred.

If, as I suspect, the 2000 election is an important, although unspoken part of the story of judicial appointments, then we can expect that there will be a particularly vigorous fight over the next Supreme Court nomination, particularly if the person who retires is a swing Justice like O'Connor or a moderate-to-liberal like Stevens. Many Democrats do not want the five conservatives on the Supreme Court to get away with what they regard as a particularly atrocious deed. Republicans can pretend that Democrats have put this aspect of the past behind them, as Republicans themselves have. But this sort of trauma inflicted on one of the two major political parties does not go away so easily.

I have said before that election of 2000 is like Poe's tell-tale heart. Many people think that the election is ancient history. But in my view the election, and the felt sense of grievance by many Democrats, frames a great deal that is occuring between the two parties today, particularly on judicial appointments.

The Democratic Party was originally assigned the donkey because the donkey was thought to be rebellious and the Democrats were the party of the secessionist South. The Republican party was assigned the elephant because they had long memories about the Civil War, and the joke was that they never wanted people to forget about what the Democrats did. I think that the mascots probably should be reversed now. The Republicans have become the stubborn rebellious mules, and the Democrats are going to be the ones with the long memories.


Monday, April 28, 2003

JB

Is a "Strong and Decisive" Leader a Good Leader?

David Broder argues in an essay in the Washington Post that Democrats can't attack Bush on leadership, which is his "strong suit." Opinion polls repeatedly suggest that the public believes that Bush is a "strong and decisive leader" and support him for that reason.

It is evident that the event that defined Bush as a strong and decisive leader was the terrorist attacks of Sept. 11, 2001. A month earlier, only 55 percent of Gallup respondents attributed those traits to him. A month after the assault on the World Trade Center and the Pentagon, it had jumped to 75 percent -- and it has basically stayed at that stratospheric level.

It appears that 9/11 did for Bush what the assassination attempt that Ronald Reagan survived and almost laughed off did for his reputation, barely two months into his presidency in 1981. That event formed an indelible impression of Reagan in the minds of millions of voters and gave him an almost mythic dimension that withstood recession, scandal and controversy.

Almost everything Bush has done since becoming president has been designed to create a similar sense of steadfastness. His pursuit of adversaries in Afghanistan and Iraq is of a piece with his persistence in pressing for passage of big tax cuts and confirmation of conservative judges here at home.


It is not surprising that many people respond positively to Bush's decisiveness. When times are tough, it is nice to know that the people in charge have a plan and will stick to it come thick or thin. But strong and decisive leadership is not necessarily the same thing as good leadership. If the President is headed in the wrong direction and won't listen to reason, then the same characteristics of perseverance that seem admirable may actually be quite harmful for the country. It is true enough that George W. Bush is no Jimmy Carter. He doesn't obsess about details (indeed he doesn't even bother to master them) and he has absolutely no problem with making firm decisions, sticking to his guns, and refusing to compromise. However, as I mentioned in a previous post, a person can fail to be up to the job of President not because he is too reticent and weak-willed, or because he freezes in a crisis, but because he overreacts and pushes too hard and too fast at the wrong times. George W. Bush’s failings are not neurosis and indecision. They are stubbornness, tunnel vision, narrowmindedness, over-aggressiveness, belligerence, and hubris.

Moreover, the appearance of steadfastness may be illusory. Although Bush routed the Taliban in Afghanistan, a year later the country is in shambles and has fallen off the radar screen of public attention. The Administration has simply not carried through on its promises here; instead, it has diverted public attention to a war with Iraq. Moreover, refusing to compromise is not necessarily a virtue if a leader won't have to suffer the consequences of the course he chooses or pay for his mistakes. Bush's determination to cut more and more taxes for the wealthiest Americans is going to create long term problems for the nation's fiscal health that may emerge many years after he leaves office.

The problem with a decisive president like George W. Bush is that he may decisively get the country into a whole series of messes that his successors will have to clean up. In a sense, this is a familar pattern in Bush's personal history: He takes risks, acts foolishly and aggressively, gets into trouble, and then somebody else cleans up his mess. But this time he is not simply the owner of an oil company or a baseball team. He is directing the domestic and foreign policy of the most powerful nation on earth. If he makes a mess this time, it may be a very big mess indeed.

But at least we will have the comfort of knowing that he never lost a night's sleep about it.


Older Posts
Newer Posts
Home