Balkinization  

Monday, June 16, 2003

JB

Supreme Court Crunch Time

As Howard Bashman notes, the Supreme Court has ten very important cases left on its docket, "[w]ith one week remaining on the schedule for the announcement of decisions in argued cases." The two most highly publicized cases concern affirmative action and gay rights, but there are also key cases on Internet filters in public libraries, the scope of the commercial speech doctrine, and an important redistricting challenge in Georgia.

Usually the final weeks of a Supreme Court Term are filled with important and memorable cases, but this looks to be the most important and memorable finish in recent years.


Sunday, June 15, 2003

JB

Judicial Appointments and Good Faith: Some Notes About Constitutional Change

Matthew Yglesias argues:

Ideologicially diverse appointments do, however, have another value, namely that they demonstrate the good faith of the nominator. I would be much more inclined to believe, for example, that Bush has nominated Miguel Estrada simply because of his judicial excellence if the Bush nominees taken as a whole demonstrated a wide degree of ideological diversity. Given that, in fact, Bush only seems to nominate conservatives to the bench, I have every reason to believe that ideology rather than excellence was the controlling factor in the Estrada nomination. The point isn't that the bench should be bipartisan for the sake of bipartisanship, but rather that a president who doesn't want his nominees judged on the basis of ideology shouldn't be selecting his nominees on the basis of ideology.

It is rather rare historically that Presidents choose judges primarily on grounds of excellence. There are such examples: I mentioned Hoover's appointment of Cardozo in a previous post. Competence counts for something, to be sure, (especially as a filter that limits the pool of acceptable candidates), but the most common reasons driving judicial appointments historically have to do with party affiliation, demographic characteristics (in the old days, the state or region that a nominee came from, or their religion, and more recently, race, gender and ethnicity), paying off political favors to constituents, or, in case of Justice McReynolds, Wilson's rather obnoxious and irascible Attorney General, kicking the nominee upstairs. However, one of the most important reasons for judicial appointments has been what Sanford Levinson and I have called "partisan entrenchment," the desire to shift the meaning of the Constitution (and federal law generally) in a preferred ideological direction. This process begins with the Midnight Judges Act in 1801, when the Federalist party attempted to stock the courts with its allies (leading to the appointment of Chief Justice John Marshall), and has continued to this day. Partisan entrenchment is not an exceptional or deviant feature of presidential nominations, but rather a fairly standard practice. Some presidents are very interested in shifting or preserving the ideology of the bench, while others (like Eisenhower, as a recent example) care far less about ideology and are mostly interested in political considerations like appealing to the Catholic vote, for example (which is what led to Justice Brennan's appointment.).

Matthew suggests that diverse appointments "demonstrate the good faith of the nominator." To me, this begs a very serious question, which is whether Presidents are acting in bad faith when they try to reshape the courts (and thus the positive law of the Constitution) through a policy of partisan entrenchment. Sandy Levinson and I have argued that partisan entrenchment is the most important source of constitutional change outside of Article V. An interesting question for Matthew to consider is whether Franklin Roosevelt's appointments of Hugo Black, William O. Douglas, Felix Frankfurter, Robert Jackson and Frank Murphy were in bad faith because Roosevelt wanted to change constitutional law to uphold aspects of the New Deal, or whether Johnson's appointments of Thurgood Marshall and Abe Fortas were in bad faith because he wanted to push the country further to the left on key issues like race and poverty. In like fashion, should we say that Richard Nixon's appointments of what he thought at the time were "strict constructionist" judges (Burger, Blackmun, Powell, and Renhquist) or Ronald Reagan's appointments of Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy were in bad faith because both Nixon and Reagan wanted to take back the federal courts from the wicked Warren Court and its liberalism?

What I am trying to put in issue, in other words, is the central question of whether partisan entrenchment is not a normal and perfectly legitimate form of judicial appointment strategy, and so the accusation of bad faith is inapposite. If politicians of the other party don't like the President's nominees, they can and should speak up and oppose them, something which has happened with considerable frequency in the country's history. Actual up and down votes are only the tip of the iceberg: Most political opposition is successful in that it prevents some people from ever being nominated in the first place.

To be sure, a President can be accused of bad faith if he says that party affiliation and constitutional values have nothing whatsoever to do with his appointments, but I haven't really heard Bush say that. What he and his supporters have said is that they want judges who will uphold the Constitution and the laws and construe them in accordance with the values of the Framers, which, to a conservative Republican, just means cutting back on liberal precedents and pushing forward conservative interpretations of the Constitution. Republicans don't see themselves as putting their personal preferences into the Constitution any more than Democrats do; they see themselves as offering the best interpretation of the Constitution, and thus following the law. Democrats, especially liberal Democrats, will surely disagee, but that's what a political process is for. That's why Democrats in the Senate (and moderate Republicans as well) should resist nominees that are too conservative or whose views suggest that such nominees will move the law in directions that are bad for the country. This is part of the advice and consent power of the Senate, one of the central checks and balances in the constitutional system, a structural guarantee that allows ambition to counter ambition. The Senate acts as a check on the Executive, leading the Executive to nominate people who are politically palatable to most Senators; this check on Executive power usually succeeds in keeping judicial appointments more mainstream than they would otherwise be if the President had an entirely free hand. One of the ways this checking function is signalled is through a public focus on qualifications, but qualifications aren't the only thing that the Senate cares about historically.

The strongly conservative nominations that we see from Bush are not due to his lack of good faith. They arise from the fact that Bush's people care a lot about judgeships and about moving the Constitution more in line with their interpretation of it. The Bush people don't care too much what the Democrats think because they control all three branches of government. The current Democratic filibuster of two judicial nominees (while letting many many more through, I might point out) is not the product of Republican "bad faith" but the product of Democratic political impotence, the inability of Dems to get Bush to compromise in the way that most Presidents usually compromise with leaders of the other party. Because Bush's style is not to compromise except when absolutely necessary, we have the current situation. If he compromised more, and nominated more moderate candidates, you wouldn't see filibusters from the Democrats. Compromise is the way that the system usually works, but we have a President who doesn't feel the need to compromise on much because he has a very disciplined Republican majority in Congress. His compromises are largely with forces inside his own party, which in some ways reminds me of Roosevelt's judicial appointments strategy.

That said, is ideological diversity on the federal bench a good thing? Well, often it is, especially if you are in the minority. But I'm not at all sure that Lyndon Johnson should have appointed a racial conservative to fill Tom Clark's seat in 1967 instead of Thurgood Marshall because the Warren Court was getting too liberal, and Marshall's appointment would push it even further to the left. Nor am I sure that Franlkin Roosevelt should have started to appoint some Lochner era conservatives in 1940 because there were just too many New Dealers on the Supreme Court. Rather, ideological diversity on the federal bench is produced through the give and take of regular elections, in which the parties take turns in the White House, and through political pressure by opposition politicians on the President. Ideological diversity on the federal bench, in short, is a product of democratic elections and the separation of powers. If the country wants to keep returning conservative Republicans to office, we are going to get increasingly conservative judges and Justices over time, and the content of American constitutional law will change accordingly. If you don't like that, there is a pretty obvious solution.


Friday, June 13, 2003

JB

Matthew Yglesias Channels Roman Hruska

The superb (and therefore non-mediocre) Matthew Yglesias suggests that we could do with a little more mediocrity among our judges:

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.


Matthew's position has a long and famous history. When Richard Nixon nominated G. Harrold Carswell in 1969 to be a Surpeme Court Justice, many people pointed out Carswell's less than stunning qualifications. Senator Roman Hruska, a conservative politician from Nebraska, attempted to turn this into an asset: "Even if he is mediocre," Hruska contended, "there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Lots of people made fun of Hruska for saying that, and he's gone down in history for being a champion of mediocrity. But Matthew's argument is more serious. What we want on the federal bench above all is good judgment. Good judgment is not the same thing as great legal acuity or legal brilliance. Nevertheless, I would disagree with Matthew that we want boring judges. Some boring judges don't have good judgment, while others do. Judging is not just mechanical application of precedents. It is not simply following the rules laid down. It is an art, and like all arts, is done better by people with talent for it than by people who lack that talent.

Good judging also involves more than the ability to figure out who should win. It also requires the ability to state principled legal conclusions in written form that can be useful to other judges and other actors in the legal system. A judge may recognize that the plaintiff should win in a particular case, but may not be able to articulate the reasons for that conclusion in a way that captures the best legal principle for deciding the case, and that distinguishes other fact situations that seem identical but in fact are not. Judges who cannot perform these tasks well may move the law in the wrong direction. People who have medicore legal minds are usually not as good at articulating the proper grounds for resolution. They often tend to conflate issues or gloss over important distinctions. Law professors tend to think that brilliant legal minds are better at these features of judging than less brilliant legal minds. They are right about that, I think, but there are other important considerations that go into the art of good judging, and as Matthew suggests, we should not assume that law professors are the best at all of the aspects that go into this art.

JB

Bork and Posner

Responding to my suggestion that President Bush should nominate Richard Posner as Chief Justice, Juan Non-Volokh writes:

My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)

Juan is right that Posner is more politically palatable to me than Bork ever was. He is a secular libertarian with a very independent streak, and in the long run, likely to take the law in better directions (from my perspective at any rate) than, say, a dogmatic religious and social conservative would. So Juan is correct that my notion of who is acceptable (given who the President is) cannot be divorced from pragmatic considerations and predictions about what a nominee would likely do once on the bench. In this sense, my criteria of acceptability are multiple, rather than unitary.

But I also think Juan misunderstands the claim I am making about quality. I think he is setting the bar far too low if he thinks that Bork is in the same category as Posner. Posner is not just another smart legal academic. There are plenty of those around. He’s a central figure in several of the most important current debates in legal scholarship all the while holding down a regular job as a federal judge.

Let me be clear: My argument *isn’t* Juan’s argument, that one should support smart academics on the federal bench regardless of their ideology. I don’t believe that for a second. I reject the argument. Very smart academics are a dime a dozen. Some of them will turn out to be good judges, and some of them will turn out to be much less good. My argument is that under the present straitened circumstances, Bush should nominate someone of the very highest quality. As I said in my previous post, “Appointing [Posner] to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect.”

Now when I say very highest quality, I mean very highest quality. Lots of people are smart, and have done impressive things. Not many people can be mentioned in the same breath as Cardozo. I certainly don’t think that Bork can. Indeed, I don’t think that either Scalia or Breyer, two former academics currently on the Supreme Court, can either. Neither of them have achievements even close to Posner’s. Almost by definition, there are very few people of the very highest caliber available in any generation. (By the way, I think it is telling that I think of Bork, Scalia, and Breyer as being former academics. I still think of Posner as being an academic, even though he has been on the federal bench for twenty years.)

I actually don’t think that Bork was an appointment of the very highest quality. Bork is a smart fellow. He was a member of my faculty for many years, and my general (albeit obviously biased) estimation is that the Yale Law School does a pretty good job of judging legal talent. But he is simply not in Posner’s league. No one could have said of Bork in 1987 that he was the most important legal thinker of his generation. Unlike Posner, he essentially gave up academic writing when he joined the D.C. Circuit, and when he was at Yale there were plenty of other people in the legal academy as good as or better than him. When President Reagan nominated him Bork was quite famous for a lot of things he did in government service (can you say Saturday Night Massacre?) but in purely academic terms, his reputation rested largely on a single book, the Antitrust Paradox. He also wrote a famous law review article, Neutral Principles and Some First Amendment Problems, published in Indiana Law Review in 1971, which sets out his views on constitutional theory. It is one of the most cited law review articles of all time, in large part because it serves as a convenient foil, a symbol of positions that lots of people disagree with. It is, I’m sorry to say, not really a very good article; it takes a number of untenable positions about freedom of speech, and Bork recanted significant portions of it at his nomination hearings. His later writings after he left the bench have become increasingly shrill and polemical. That may be due in part to the trauma of the appointment battle. Even so, there is no way that one could compare Bork’s intellectual output over the past twenty-five years (or before, for that matter) with Posner’s. Bork has written, I believe, two books since 1987. Posner has written about twenty, on a vast array of different subjects, all the while holding down a full time job on the federal bench, and writing opinions of very high quality. It’s not that Posner is ever so slightly more impressive. The comparison isn’t even close.

My views about Antonin Scalia are very much the same, by the way. Smart man, excellent writer, much smarter than the average judge, but not even the most important legal thinker on the Chicago law faculty when he was nominated to the federal bench. Stephen Breyer did impressive work on regulation, and a great article on intellectual property when he was at Harvard. But he was far from the most significant figure in the American legal academy (or even at the Harvard Law School) when he went on the bench. And while on the First Circuit, he found, like most judges, that being a federal judge was a full time job. What is remarkable about Posner is that he discovered that being a federal judge *didn’t* take up enough of his time. He kept on writing book after book, article after article. And what is even more remarkable is that lots of these books are quite good, even though he argues lots of things in them that just drive me up the wall.

Juan is right when he suggests that my views on who I would find to be an acceptable nominee by a Republican President like George W. Bush are colored by my own politics. But I think he underestimates Posner’s distinctive achievement and contributions by suggesting that Bork– or, for that matter, a whole host of other very smart academics-- would fall into the same category of excellence. There is a very real difference here, and we should acknowledge it.

JB

The First Amendment and Fair Use

Orin Kerr argues that there can't be a First Amendment right to fair use because fair use is an affirmative defense:

As I see it, the problem is that an affirmative defense only works in conjunction with its corresponding cause of action. While the Constitution may require an affirmative defense to liability under a specific cause of action, we don't normally speak of someone having a "right" to do the act just because a particular law would not (even could not) punish it. Consider the insanity defense in criminal law, which, like fair use, is generally treated as an affirmative defense that excuses liability. Some courts have held that the insanity defense is required by the Due Process clause, and that legislative efforts to abolish the insanity defense are unconstitutional. See, e.g., Finger v. State, 27 P.3d 66 (Nev. 2001); State v. Straburg, 110 P. 1020 (Wash 1910). However, we don't talk about having Due Process rights to commit crime while insane. That would be pretty odd, in fact; imagine a defense attorney claiming that a prison sentence violated his client's constitutional rights by incapacitating his client and therefore making it impossible for him to commit crimes that would then be excused by the insanity defense. The trick is that although the Due Process clause may require a state to have an insanity defense, that does not mean that the law has to otherwise allow acts that if committed would fall under the insanity defense. At a conceptual level, I think the right to fair use is similar. It may be that the First Amendment requires a fair use defense to copyright infringement. As I see it, this does not necessarily mean that the First Amendment invalidates any other law (such as the DMCA) that prohibits acts that would constitute (or at least lead to) protected fair use.

With respect, I think Orin is mistaken. Here's why:

Defenses in criminal law can be either justifications for actions or excuses for actions. Insanity and duress are excuses. Necessity or self-defense are justifications. Orin is right that we do not say that a person has a right to commit a crime while insane, but that is because insanity is an excuse, not a justification. The defense of insanity excuses conduct that would otherwise be culpable and therefore illegal. But we do say that people have the right to act in self-defense, or in cases of necessity, because self-defense and necessity are justified whether or not the law makes a certain act (like murder) a crime. The fair use defense is a justification for allowing people to make copies and distribute them in certain cases; it is not an excuse for otherwise wrongful conduct that a person couldn't help.

Why is fair use justified? Because of important policy considerations that intersect with first amendment values. Fair use allows people to engage in important forms of public discourse, and engage in creative transformations and commentaries on existing speech, and in this way it helps promote the growth and spread of knowledge.

A comparison to defamation may help clarify the point further. At common law, people had a privilege of fair comment, which was a defense to an action for defamation. They also had a defense of truth. The defenses of truth and fair comment were justifications, not excuses. The reasons why people are justified in making fair comments and in making true albeit defamatory statements are related to key free speech values. When the Supreme Court constitutionalized the law of defamation in New York Times v. Sullivan and later cases, it created additional constitutional privileges that also promoted free speech values. These privileges are justifications, not excuses; they recognize rights to speak that should exist regardless of the substantive content of defamation law. The defense of fair use in copyright law is much like the defense of fair comment in defamation law. Indeed, the First Amendment argument for limitations on copyright is structurally similar to the First Amendment argument for limitations on causes of action for defamation: If private rights (of reputation or intellectual property) are given too much protection, they will stifle too much valuable speech.

Note that this explanation is consistent with Eldred v. Ashcroft. In Eldred Justice Ginsburg stated that as long as Congress does not interfere with traditional contours of fair use, there is no First Amendment problem with copyright extensions. The First Amendment problem arises if government alters or severely limits the traditional contours of fair use, because fair use is justified activity that promotes free speech values.

This brings me back to the DMCA. The First Amendment argument against the DMCA is actually a little trickier, and that may be what leads Orin to see a potential problem in the argument. The argument is that if (for example) one purchases a DVD, one has a First Amendment right to gather certain information from it and transform it into other information, as long as this is done for otherwise justifiable purposes. The DMCA is unconstitutional because it makes it a crime to circumvent a technology that prevents these justified forms of information retrieval and transformation.

If there is a problem with this First Amendment argument, it is not Orin's objection, that fair use is a defense. The problem comes in proving that there is a First Amendment right to gather and transform information that is protected by a copyright management scheme if the government has legitimate reasons for protecting such schemes from circumvention. The government will defend the DMCA on the ground that the government's purpose is not to prevent fair use but to prevent piracy, and therefore the DMCA poses only an incidental burden on free expression that passes the O'Brien test-- i.e., that the regulation reasonably serves a legitimate government purpose that is unrelated to the supression of free expression. In order to make the First Amendment argument against the DMCA, one must show that the incidental restriction on freedom of speech that the law imposes is too severe. As I have argued in a previous post, Eldred actually helps you make this argument. Because the DMCA alters the traditional contours of fair use by allowing private parties to do a technological end run around traditional fair use doctrines, it abridges what Justice Ginsburg called the “built-in free speech safeguards” of copyright law, and therefore violates the First Amendment.


Thursday, June 12, 2003

JB

Posner for Chief Justice

The Bush Administration is surely not going to ask me for advice about judicial appointments, but if they are determined to appoint a conservative Republican to replace Chief Justice Rehnquist if and when he retires, I can tell you who right now I would be in favor of, even though I don't agree with him much at all:

Richard Posner.

For those of you who are unfamiliar with contemporary legal scholarship, Posner, who joined the 7th circuit in the early 1980's, is one of the most important legal scholars of his generation, and has written an endless supply of articles and books on virtually every legal subject imaginable, all the while continuing to produce a steady stream of extremely well written appellate opinions, which have made him perhaps the most influential lower court judge living today. He is a man of supreme intelligence, boundless energy and enormous learning. It is impossible for me to list the number of contributions he has made to legal scholarship. The quality of his accomplishments is such that he would grace the Court, and not the other way around. It would be fitting too, for him to be able to finally take a seat on the same court as his acknowledged idol and role model, Oliver Wendell Holmes, Jr.

I do not think that there is much chance that Posner will be nominated to the Supreme Court. He is probably now considered too old. Moreover, he has taken many controversial positions and said many controversial things in his career that will discomfit not only people on the left-- whom he delights in tweaking-- but also on the right as well. He is probably the most famous exponent of the economic approach to law, which leads him to take stands that are anathema to many liberals. He also has strongly libertarian and secular sensibilities, which will surely not endear him to social conservatives. And he takes great delight in saying things deliberately designed to shock others, which will cause enormous difficulties for any one who would try to be his political handler during confirmation hearings.

But he is a great legal thinker, and a great judge. When Orrin Hatch and other folks go on and on about how great a legal mind some of these Bush nominees possess I just have to laugh. That really cheapens the term. These guys may be ok lawyers, but they are not great legal thinkers. Posner, on the other hand, is a great legal thinker. If you want a truly Supreme Court you should put people of his caliber and quality on it. Appointing him to the bench in the midst of the terrible controversies that have overtaken the judicial appointments process would send a good and healthy message, a little bit like Herbert Hoover's appointment of Benjamin Cardozo near the end of Cardozo's judicial career. Regardless of ideology, this is a person of the highest quality that people can respect. And if the Democrats knew what was good for them, they would support an appointment for Posner, because there's nobody Bush would be likely to appoint who would even be close to doing a better job.

It'll never happen.


JB

Is Pryor's Sincerity Enough to Make him a Good Judge?

William H. Pryor Jr., President Bush's nominee for a seat on the 11th circuit, testified yesterday on Capitol Hill, the Washington Post reports. There were two things he said yesterday that gave me pause. The first one, even if true, is not particularly helpful, and the second one suggests that he is either not entirely candid or is living in a fantasy world.

Pryor's first comment came as he was asked about his very conservative views on a number of issues, including abortion, homosexuality and the separation of church and state. Pryor explained:

I have a record as attorney general that is separate from my personal beliefs," he said. "I have demonstrated as attorney general that I am able to set aside my personal beliefs and follow the law, even when I strongly disagree with the law."

I have no reason to think that Pryor is not sincere when he says this. But his record as Attorney General hardly shows him to be impartial, and if he thinks it does, then that is at least some evidence of what he thinks impartial judging would be. In any case, I wonder whether his assurances that he will follow the law should be sufficient comfort to those who find his personal views about the Constitution deeply misguided. After all, Attorney General Ashcroft and any number of conservative jurists, including Justice Clarence Thomas, have made similar promises to obey the law and not be guided by their own political preferences. Since he went on the bench, however, Justice Thomas has repeatedly shown that his opinions cannot be farily understood merely to be following the law; indeed, many of his opinions clearly reflect his personal convictions as well his very conservative political views, often views of the most extreme sort. And despite his repeated assurances that he would protect civil rights and civil liberties as Attorney General, Ashcroft, too, has demonstrated that in practice he has little concern for civil liberties in his enforcement decisions. Ashcroft may well believe that he has done nothing during his tenure to undermine civil liberties in this country, but I beg to differ, and the fact that he would believe this suggests that his sincerity is not a very good gage of his fidelity to basic civil liberties or to the Rule of Law.

As a result, even if Pryor is completely sincere in his belief that he will just follow the law, there is every reason to believe that he will take extreme positions if he is given a lifetime appointment as a judge. He will not be as free to take these positions as Thomas or Ashcroft have been, because he will be a lower court judge. Lower court judges are subject to constraints that Supreme Court Justices and Attorneys General are not. Nevertheless, lower court judges can in fact have an enormous practical effect on the development of the law through narrow or broad interpretations of precedents, through selective interpretations of facts, and on account of the practical reality that most appellate court decisions are never reviewed on the merits by the Supreme Court. I have no reason to believe, given his record before his nomination, that Pryor will be anything other than a jurist occupying the far right of the political spectrum. His politics will inevitably influence what he does, and because his politics are so extreme, (and with respect to issues like homosexuality, may I say, deeply unjust,) the influence will not, I think, work to the greater good of the country.

The second thing that Pryor said that gave me pause was a response to a question about the death penalty:

Defending his strong support for capital punishment, Pryor said the system has "extraordinary safeguards, many safeguards" to ensure that only the guilty are executed, that verdicts are free from discrimination and that the cases involve extreme and heinous crimes. "The system catches errors," he said.

Pryor said he was not aware of an innocent person being executed since the Supreme Court reinstated the death penalty nationwide in 1976. "If someone has a case they would like to present to me, I will certainly review it objectively, but I'm not aware of one," he said.


I'm not sure exactly how to interpret this. Perhaps Pryor was merely being cute and saying that he had never had the chance personally to review a specific report that conclusively demonstrated the innocence of a person who had been convicted and executed. But I don't think that's the best interpretation of what he said. I think he was saying that innocent people don't get executed in this country. Frankly, I think that is just unbelievable. Whether you support the death penalty or not, you must acknowledge that there is *some* error rate; the many reported cases of people who have been released from prison due to DNA evidence suggest that there are probably a number of innocent people who have been executed in this country since 1976. One can still defend the death penalty on the grounds that it is worth taking those risks if the quality of testing and access to justice is improved sufficiently. But it is a fantasy to deny that there is a problem here.

If Pryor actually believes what he seems to have said here, then I think he is engaged in wilful blindness about the nature of the criminal justice system in the United States. These statements suggest a person sufficiently enclosed in a worldview that recalcitrant evidence cannot get through. Such a judge, even if perfectly sincere and otherwise of the very best character, is unlikely to have the judicial temperament to mete out justice properly.

The President can do better than this in nominating judges. I wish he would.


Monday, June 09, 2003

JB

Weapons versus Weapons Programs

The President has begun to backtrack, according to this Washington Post report:

"Iraq had a weapons program," Bush told reporters after a meeting with his Cabinet at the White House. "Intelligence throughout the decade showed they had a weapons program. I am absolutely convinced with time we'll find out they did have a weapons program."
. . .

In a subtle shift, some U.S. officials have begun to talk of finding weapons "programs" or "capabilities."

"Programs in and of themselves give rise to tremendous concern with the weapons themselves," [White House spokesman Ari] Fleischer said.


In accordance with its general policy that the best defense is a good offense, the Administration has begun to accuse its critics of writing "revisionist history:"

Fleischer, and other U.S. officials, including National Security Adviser Condoleezza Rice, accused critics of "revisionist history" in questioning whether Iraq had banned weapons.

"What the president has said is because it's been the long-standing view of numerous people, not only in this country, not only in this administration, but around the world, including at the United Nations, who came to those conclusions," Fleischer said. "And the president is not going to engage in the rewriting of history that others may be trying to engage in."


Very nice, Ari, but I'm pretty sure that it is the Administration that is engaging in revisionist history here, by asserting that what it was after all along was merely a "weapons program" rather than the possession of weapons of mass destruction.

Finally, the President changed the subject when asked about the WMD problem and American credibility:

Asked whether U.S. credibility was at stake in the search for weapons of mass destruction, Bush shifted the focus to the ouster of Saddam.

"The credibility of this country is based upon our strong desire to make the world more peaceful and the world is now more peaceful after our decision," he said. "History and time will prove that the United States made the absolute right decision in freeing the people of Iraq from the clutches of Saddam Hussein."


Again, inquiring minds want to know, is the world truly more at peace now than it was last year?

The most disturbing possibility, which the Administration has failed to respond to, is that there was no intelligence failure. Saddam did have the weapons, but they are now missing because they were smuggled out of the country during the chaos caused by the war. If that is so, then President Bush has made America less safe, not more safe by starting the war. And this is a fear, by the way, that was continually voiced by critics of the war like myself: If we attacked Saddam, we might win, and win easily. But we might make ourselves less safe, not more safe through causing chaos and upheaval in the Middle East and contributing to the proliferation of weapons of mass destruction.

Until the Administration addresses that possibility, its credibility deserves to be placed in question.


JB

Volokh does Rhetoric

I've just gotten a chance to read through Eugene Volokh's Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers. The book is designed to teach law students how to write. Actually it's considerably more than that. It ranges all the way from grammar and style, to methods of persuasion, to organization, to using statistics, to the ethics of argument and treating people you disagree with fairly and with respect. It's all really very well done, and quite fun to read through, because Eugene has all of the virtues he wants his students to have. I'd recommend it to any law student, and to lots of other people outside the legal profession who want to polish their writing skills.

What the book actually most reminds me of are classical treatises on rhetoric, which ranged over the five canons of invention, arrangement, style, memory, and delivery. Put in more modern terms, the classical canon was interested in (1) how to choose a topic, subject matter and approach; (2) how to arrange and organize materials to make them most persuasive (3) how to express oneself in a pleasing and persuasive fashion; (4) how to draw on sources of information, facts, stories, anecdotes, etc.; and (5) how to deliver the argument in a way that would connect with the audience, including how one establishes one's character as someone who should be trusted.

Although Eugene doesn't talk about the classical canons, his book corresponds to them pretty well. Indeed, I'd say that this book is a worthy sucessor to the classical approach to rhetoric, brought up to date and focusing on modern concerns. After all, Cicero and Quintillian never had to worry about how to perform a Lexis search or calculate the right margin of error in statistical surveys.

And particularly important, to me at any rate, is that Eugene emphasizes not only questions of style but also ethics. The idea that the proper study of rhetoric cannot be divorced from considerations of ethics and character is very classical. Indeed, the entire book is suffused with an ethical tone, and I mean that as a high compliment. Over and over again Eugene emphasizes the importance of self-criticism, care, moderation, and balance. Eugene is a sort of rhetorical missionary for sound judgment, fairness, and discretion. That's a good thing, especially in these frenzied times.


Saturday, June 07, 2003

JB

Libertarians Form Communities

My friend Randy Barnett, one of the most interesting libertarian thinkers in the contemporary legal academy, has joined the Volokh Conspiracy.

JB

M. Derrida Would Be Proud

The incomparable Brad DeLong shows why he is the most subtle Straussian in the academic business in this recent essay.

By the way, am I the only one to have noticed the similarities between Leo Strauss and Jacques Derrida? Both believe in the importance of close readings of classic philosophical texts, both find hidden meanings in these texts which become available only after careful study by the cognoscenti, and both are interested in how surface or ordinary readings of a text are undermined and even reversed by these close readings. (And both have a problematic relationship to the Enlightenment, and a particular love for the classics.) The most important difference (or differance) might be their views about the relationship between the text and the author's intentions. Strauss seems more detemined to suggest that he is revealing what an author truly meant, while Derrida is more interested in showing how an author's text gets the better of the author. (But I am sure that, in time, we could deconstruct even this distinction, or, in the alternative, show how it conceals a deeper truth.)

JB

Is the Partial Birth Abortion Statute Constitutional?

The House has passed a new ban on partial birth abortions. The Senate passed a similar bill in March. After differences between the House and Senate versions are ironed out, the bill be sent to President Bush for his signature.

Is the statute constitutional? In a word, no.

Here is the relevant text of the partial birth abortion statute (Senate version):

Sec. 1531. Partial-birth abortions prohibited

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.

(b) As used in this section--

(1) the term `partial-birth abortion' means an abortion in which--

(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus;


As a preliminary matter, what Congress calls "partial birth abortion" does not correspond to existing medical terminology.

The most common abortion procedure in the second trimester (from about 12 to 24 weeks) is "dilation and evacuation" (D&E). D&E involves dilation of the cervix, removal of at least some fetal tissue using nonvacuum surgical instruments. After the 15th week D&E procedures may require that the fetus be dismembered or that parts of the fetus be collapsed in order to facilitate evacuation from the uterus. When the fetus is dismembered, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. D&E poses risks of mortality and other medical complications that are significantly lower than those which accompany the next safest mid-second-trimester procedures, called induced labor procedures.

A variation of D&E, known as "intact D&E," is used after 16 weeks. It involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. When the fetus presents head first, the doctor will insert an instrument into the fetus' skull while the fetus is still in utero and remove the brain and other intracranial contents. When the fetal skull collapses, the physician will remove the fetus.

The feet-first method of intact D&E is known as "dilation and extraction" (D&X). The D&X procedure is the one ordinarily associated with the term "partial birth abortion." After dilating the cervix, the physician grabs the fetus by its feet and pulls the fetal body out of the uterus into the vaginal cavity. Because at this stage of development, the head is the largest part of the body, the fetus' head will be held inside the uterus by the woman's cervix. The fetus is partly outside the woman's body (hence "partial birth"), while the head is stuck inside. To remove the fetus, the physician uses an instrument such as a pair of scissors to open the skull. The physician will then either crush the skull or use a vacuum to empty the fetal skull, collapse the fetus' head, and pull the fetus completely out of the uterus.

The Congressional statute defines "partial birth abortion" to include both D&X, when the fetus presents feet first, and also cases where the fetus presents head first. That would seem to include intact D&E procedures where the fetus presents head-first. But what's crazy about the way the statute is written is that it doesn't conform to the actual practices of intact D&E in the second and third trimesters. After 16 weeks of pregnancy, no doctor would pull the fetus's head out of the body and then collapse the skull or otherwise destroy the fetus. As just noted, the problem is that the fetus' head is the widest part of the body. Hence in performing intact D&E abortions after 16 weeks when the fetus presents head first, the doctor will crush the skull while the fetus is still inside the mother's body. This sort of intact D&E just isn't "partial birth abortion" at least as defined by the statute.

If that's the case, then what types of D&E procedures could the statute possibly apply to? The only cases it would seem to apply to are D&E procedures performed well before viability, when the fetus's head is sufficiently small that it could be pulled out alive head first without injuring the mother. If the fetus is removed head first, and, in the process, is destroyed, then the abortion would seem to fall literally within the text of the statute (the head was out of the mother's body when the fetus was killed). But if so, that would cover a very large part of pre-viability D&E abortions. Congress would have outlawed lots of previously legal abortions in the second trimester.

In the discussion that follows, I will assume that the statute applies only to D&X abortions, and possibly to intact D&E abortions (although, as noted perviously, these will never be performed in a way that the statute assumes), but not to other D&E abortions. If the language were read to apply to the standard form of D&E abortions it would clearly be unconstitutional under Casey and Stenberg v. Cahart.

Even with this limiting construction, the statute has constitutional problems: The basic difficulty is that the law makes no exception for the health of the mother, and it does not distinguish between pre and post viability abortions.

Under the Supreme Court's 1992 Casey decision, although governments may ban all abortions after viability, they must make an exception for abortions necessary to preserve the life or health of the mother.

Before viability, governments may impose even fewer conditions on abortion. They may not place an undue burden on a woman's exercise of her right to an abortion. The Supreme Court reaffirmed this framework in Stenberg v. Cahart, 530 U.S. 914 (2000).

With respect to pre viability abortions, what Congress calls "partial birth abortion" (which includes intact D&E and D&X abortions) must be permitted if the procedure is safer than existing alternatives. Forcing women to undergo a less safe procedure would impose an undue burden on their right to an abortion. The Court explained in Casey that

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

A complete ban on partial birth abortions cannot plausibly be justified as furthering women's interest in health or safety, because it removes from consideration a method that in many cases is safer than induced labor methods of abortion. Hence it places a substantial obstacle in the path of women for whom the procedure would be the safest possible course. Nor can the ban be justified, as the 24 hour waiting period was in Casey itself, as a means of persuading women to choose childbirth over abortion. A total ban on a medical procedure is not a method of persuasion.

In Stenberg v. Cahart, the Court followed this line of reasoning in striking down Nebraska's partial birth abortion statute. It held that "[A] State cannot subject women's health to significant risks ... where state regulations force women to use riskier methods of abortion." ... A risk to a woman's "health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely." It seems clear that the statute is unconstitutional at least as applied to pre-viability abortions. (The ban on partial birth abortions is often thought to be a ban on late term abortions, but what is interesting about this statute is that it is not limited to late term abortions at all. Indeed, as I've pointed out, if read broadly it could ban a very significant number of second trimester abortions).

Congress has tried to get around the constitutional problems by finding as a matter of fact that "partial birth abortions" as it defines them are less safe than other forms of abortion. Since they are always less safe, there's no constitutional harm in banning them. The preamble to the statute states that "a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care." The statute argues that the Court's decision in Stenberg should not apply because the Court was bound by the factual findings of the trial court, which found that partial birth abortion was sometimes medically indicated and was sometimes the safest method of abortion:

(8) . . . [U]nder well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the 'clearly erroneous' standard. [This is the standard by which appellate courts review findings of fact by trial courts.] Rather, the United States Congress is entitled to reach its own factual findings--findings that the Supreme Court accords great deference--and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.

(9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), the Supreme Court articulated its highly deferential review of Congressional factual findings when it addressed the constitutionality of section 4(e) of the Voting Rights Act of 1965. Regarding Congress' factual determination that section 4(e) would assist the Puerto Rican community in `gaining nondiscriminatory treatment in public services,' the Court stated that `[i]t was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations. . . . It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) in the application in question in this case.' (Id. at 653).


This argument won't fly, because even if Congress makes findings of fact, courts are still required to make their own independent determination whether a statute will violate fundamental constitutional rights. Congress can't by its own fiat declare that banning a certain medical procedure does not constitute an "undue burden" to a woman's right to abortion. Courts still have to decide that issue, and where the meaning of a constitutional doctrine is tied up with factual determinations of health and safety, courts have a constitutional obligation to decide whether Congress's findings of facts effecitvely undermine basic constitutional guarantees. Otherwise, Congress could do an end-run around constitutional rights by claiming that certain facts were simply the case.

In the Katzenbach v. Morgan case cited above, it was easy for the Court to defer to Congress. That is because Congress was not trying to limit fundamental rights in passing the Voting Rights Act of 1965. Quite the contrary: it was passing legislation in aid of enforcing fundamental rights. The Court argued that Congress had good reasons to think that the Voting Rights Act would help secure constitutional rights and so it was happy to defer to Congress's judgments about why the Voting Rights Act was necessary. Katzenbach is the opposite of this case, in which Congress is trying to limit women's rights by arguing that a certain form of abortion is never medically indicated and therefore women have no right to have it performed.

Where a fundamental right is at stake, courts may defer to Congressional findings of fact, but they have to make their own independent assessment of whether the legislation impinges on fundamental liberties. The preamble to the partial birth abortion statute tries to get around this objection by pointing to the Turner case: the issue there was whether must-carry obligations on cable companies violated their First Amendment rights. That case involved legislation that might impinge on a fundamental right, and the Court deferred to Congressional findings of fact.

The Court did use Congressional findings of fact in Turner, but it didn't just accept them blindly. Rather, it held that important issues of fact had to be determined in order to decide whether the First Amendment was violated. It didn't just accept Congress's determinations at face value, and it sent the case to a trial court to conduct hearings. The trial court, in turn compiled an extensive record that included not only Congress's findings but also its own findings. What the Court did not do in Turner is what Congress wants it to do here. It didn't announce that the First Amendment isn't violated if Congress says it isn't, and that burdens on First Amendment rights don't exist if Congress says they don't exist. Above all, it didn't say that Congress could effectively overrule the Court's free speech precedents by stating findings of fact in the preamble to a statute. The same principle applies in this case. Congress can't make restrictions on abortion legal simply on its own say-so.

Because the question of health and safety is crucially linked to the application of the Court's doctrines in Casey and Stenberg, Congress's findings of fact simply can't be dispositive. Although courts should consider those findings of fact, there is no obligation for the Supreme Court to overrule its previous precedents in order to defer to them. And under those precedents, the new partial birth abortion statute is pretty clearly unconstitutional.


Thursday, June 05, 2003

JB

Why it Matters if the Weapons of Mass Destruction Aren't Found

Speaking in Qatar, today, President Bush declared (according to a report from the Associated Press):

"We're on the look. We'll reveal the truth," Bush said, without specifically promising weapons would be found. "But one thing is certain: no terrorist network will gain weapons of mass destruction from the Iraqi regime because the Iraqi regime is no more."

The problem, however, is that if the weapons had already been given to terrorist groups before the war, or fell into the hands of terrorist groups during the anarchy that reigned while the war was going on, it will be quite irrelevant whether terrorist networks now can gain weapons from Iraq. That horse is already out of the barn door.

What the Administration has not yet addressed is the sobering possibility that the decision to attack Iraq actually caused weapons of mass destruction to proliferate to terrorist groups, making Americans less safe, not more. The Administration was warned about this possibility repeatedly by opponents of the war and dismissed it. But if we do not find those weapons in Iraq, that may be the reason why.

If the Administration did not deceive the American people about the existence of WMD in Saddam Hussein's Iraq, then the possibility that these weapons have already proliferated and spread to terrorist groups becomes much greater. And that should be troubling for any Administration that insists it is acting to make the American people safer. (Which raises an interesting question: should we be happier if it turns out that the Administration was merely dishonest because it misled the public about WMD's in Iraq or incompetent because it let the WMD's fall into the hands of terrorists?)

Many people have defended the recent war on the grounds that even if weapons of mass destruction were not found, it's worth the price because we have freed the Iraqi people from a terrible tyrant. I agree that this is a very good thing, especially as we learn more and more about how terrible Saddam's regime truly was, although I wonder whether we are now prepared to invade Burma or Zimbabwe, or any other country ruled by a terrible tyrant, in order to free those people as well.

But what is more important is the question whether we would be willing to free the Iraqi people if we knew that the price would be the proliferation of weapons of mass destruction and their placement in the hands of terrorist organizations. No one who has supported the war on the grounds that it freed the Iraqi people has come to terms with *that* question.

As much as the American people are happy that Saddam Hussein's ruthless regime is no more, I seriously doubt they would have been willing to end Saddam's reign if it had led to proliferation of weapons of mass destruction to terrorist groups that would threaten America. Americans are altrustic and idealistic, but they are not crazy.


Wednesday, June 04, 2003

JB

Blair is in Trouble, Why Isn't Bush?

The Washington Post reports:

Tony Blair failed today to quiet the roar of criticism over his insistence that Iraq is hiding weapons of mass destruction, with the opposition leader declaring that "nobody believes a word now that the prime minister is saying."
. . .

Blair has been under fierce pressure here in recent days, in part from members of his own party, since fresh doubts surfaced about his case that Iraq possesses weapons of mass destruction. More than 70 Labor members in the House of Commons have signed a petition demanding that Blair publish his evidence, with one, Malcolm Savidge, calling the issue "potentially more serious than Watergate." A key Commons committee, brushing aside Blair's objections, approved an investigation late Tuesday.

In a very real sense, the war over Iraq is still being fought here, in marked contrast to the United States, where neither political party has used the failure to find dangerous weapons as a major issue against President Bush.


That last sentence is perhaps the most interesting one. Tony Blair was, throughout the crisis over Iraq, far more believable than Bush, repeatedly portraying himself as the voice of reason and offering a strong moral and political case for invading Iraq. The irony is that, now that weapons of mass destruction do not appear to have been in Iraq as promised, Blair is getting the most flak for misleading his nation. President Bush, by contrast, is getting much less criticism at home for deceiving the American people concerning one of the most central issues of governance in a democracy-- the decision whether to risk American lives and go to war. Bush has, on any number of occaisions, lied through is teeth about the facts of the Iraq conflict and the Administration's reasons for going to war. And yet, he has emerged largely unscathed, free to strut aboard an aircraft carrier and play the part of a hero. To quote Bob Dole on another occasion, where's the outrage?

Part of the reason for this difference has to do with the fact that Great Britain has a much more robust tradition of questioning leaders about their decisions. British prime ministers are subject to questioning about their policies in ways that American presidents would never allow. The British press is also less supine than the American press, which has, in many cases, essentially given itself over to uninhibited flagwaving and infotainment. In particular, the BBC, although run by the British government, has been much more balanced in its coverage than the American news media, whose conservative pundits seem determined to make excuses for whatever disinformation the Bush Administration cares to offer.

In short, I would suggest that the major reason why Blair is in more hot water right now for deceiving the public about why Britain went to war is that the democratic process is simply working better in Britain right now than it is in the United States.

JB

Was Powell Pressured to Use Cooked Intelligence Data?

Reuters reports that he was:

US Secretary of State Colin Powell was under persistent pressure from the Pentagon and White House to include questionable intelligence in his report on Iraq's weapons of mass destruction he delivered at the United Nations last February, a US weekly reported.

US News and World Report magazine said the first draft of the speech was prepared for Powell by Vice President Richard Cheney's chief of staff, Lewis "Scooter" Libby, in late January.

According to the report, the draft contained such questionable material that Powell lost his temper, throwing several pages in the air and declaring, "I'm not reading this. This is bullshit."

The White House also pressed Powell to include charges that the suspected leader of the September 11 hijackers, Mohammed Atta, had met in Prague with an Iraqi intelligence officer prior to the attacks, despite a refusal by US and European intelligence agencies to confirm the meeting, the magazine said.
. . .

US News also said that the Defense Intelligence Agency had issued a classified assessment of Iraq's chemical weapons program last September, arguing that "there is no reliable information on whether Iraq is producing and stockpiling chemical weapons."

However, Defense Secretary Donald Rumsfeld told Congress shortly after that that the Iraqi "regime has amassed large, clandestine stockpiles of chemical weapons, including VX, sarin, cyclosarin, and mustard gas," according to the report.


Another list of quotes and justifications given about weapons of mass destruction, with links to key documents and dossiers, appears here courtesy of Financial Times.


Friday, May 30, 2003

JB

Did the Bush Administration Cook Intelligence Data on Iraq?

A growing number of national security professionals seem to think so, according to this report from Reuters, (via The Agonist)

JB

Journal of Higher Education Article on Academic Blogging

The June 6th issue has a feature on blogging, which was many months in the works. You can find it here.

JB

Ari Fleischer Explains What the War Was About


Courtesy of Sky News and Daily Kos:

"We have high confidence that they have weapons of mass destruction - that is what this war was about, and is about - and we have high confidence it will be found."


Paul Wolfowitz, however, begs to differ:

Q: There was an article published yesterday in Vanity Fair which quoted you as saying that weapons of mass destruction were chosen for bureaucratic reasons to justify war in Iraq.

Wolfowitz: I'm sorry, first of all, that isn't even the way the article puts it, but if you want to know what I actually said I would suggest you read the transcript of the interview which is on our website. What I said very clearly is that we have from the beginning had three concerns. One was weapons of mass destruction, second was terrorism, and the third -- and all three of these by the way are in Secretary Powell's presentation at the U.N. -- the third was the abuse of Iraqis by their own government. And in a sense there was a fourth overriding one, which was the connection between those first two, the connection between the weapons of mass destruction and terrorism. All three of those have been there, they've always been part of the rationale and I think it's been very clear.


I am willing to take Wolfowitz at his word: the issue was not just WMD in Saddam's hands, but the connection between WMD and international terrorism. Yet the question then becomes whether the Iraqi invasion helped prevent terrorist organizations from gaining access to weapons of mass destruction, or actually made it easier to do so. Because we have not found the WMD, there are two troubling possibilities: The first is that, as Secretary Rumsfeld suggests, the weapons had been destroyed before the war, in which case our invasion was based on faulty intelligence. Then we have done nothing to hinder terrorist organizations from gaining weapons of mass destruction, but we have stoked additional resentment and possibly added to the ranks of our enemies. The second possibility, which is even more troubling, is that by attacking Iraq we created anarchy that allowed weapons of mass destruction to move outside the country and into the hands of international terrorist organizations. That suggests that given the major reason for the war, the war itself was counterproductive.




Thursday, May 29, 2003

JB

Senator Byrd Tells It Like It Is

In this speech delivered on May 21st.

The problem is, he may be the only politician willing to take the heat for doing so. It seems that in the times in which we live, "The best lack all conviction, while the worst/Are full of passionate intensity." Byrd is willing to be a little passionate in return, and we should be grateful for his willingness to speak out, as he has repeatedly, in the months leading up to the war.

JB

The New European Constitution

An interesting discussion is going on in the blogosphere about the structure of the new European Constitution, whose provisions are currently being drafted. The latest (May 26, 2003) draft of the proposed constitution appears here. It's a long document, but well worth browing through. You can start reading about the new provisions in this summary helpfully provided by the BBC, and then move on to the various blog postings here, here, here, and here. Some of it is quite technical stuff if you don't know much about the current structure of the European Union, but if you know something about the framing of the American Constitution, lots of similarities and contrasts will jump out at you.

JB

Some Quotes on Weapons of Mass Destruction

From a story in today's Independent:


"Intelligence leaves no doubt that Iraq continues to possess and conceal lethal weapons"

-- George Bush, US President 18 March, 2003


"We are asked to accept Saddam decided to destroy those weapons. I say that such a claim is palpably absurd"

--Tony Blair, Prime Minister 18 March, 2003


[War Begins]


"Saddam's removal is necessary to eradicate the threat from his weapons of mass destruction"

--Jack Straw, Foreign Secretary 2 April, 2003


"Before people crow about the absence of weapons of mass destruction, I suggest they wait a bit"

--Tony Blair 28 April, 2003


"It is possible Iraqi leaders decided they would destroy them prior to the conflict"

--Donald Rumsfeld, US Defence Secretary 28 May, 2003



UPDATE: A fuller listing of choice quotes, including statements from Colin Powell's address before the United Nations, appears here.


UPDATE: Billmon has the same idea. Here's his rather extensive list (via Atrios).


Wednesday, May 28, 2003

JB

Do You Think He Has An Alibi?

According to this story (via This Modern World), Supreme Court Justice Clarence Thomas keeps a sign in his office which reads "Save America: Bomb Yale Law School."

I think he has some issues.

JB

Retreat on Federalism?

On Tuesday the Supreme Court decided Nevada Department of Human Resources v. Hibbs, holding that states may be sued for money damages when they violate their employees' rights under the federal Family and Medical Leave Act (FMLA).

In two previous cases, Kimel and Garrett, the Court held by 5-4 votes that states could not be sued when they violated their employees rights under federal age discrimination and disability discrimination laws. The same five conservatives (Rehnquist, O’Connor, Kennedy, Scalia, and Thomas) voted in the majority.

In Hibbs, Rehnquist and O’Connor switched sides and formed a majority with the moderates and liberals— Ginsburg, Breyer, Souter, and Stevens (who concurred in the result.).

What is most interesting about the opinion is how Rehnquist marshals his evidence that Congress found a pattern of sex discrimination, which allows him to conclude that Congress’s remedy– the FMLA– is “congruent and proportional” to those findings. He draws on studies of discrimination by private employers and federal employers to show that there is discrimination by state employers, and he uses evidence that states discriminated in awarding leaves for taking care of children to show that states might also discriminate in their policies regarding leaves to take care of sick relatives. In other words, he allows Congress considerable leeway in what is sufficient evidence of sex discrimination to justify the FMLA. He also describes the purpose of the statute very broadly, as a prophylactic measure designed to combat a basic assumption that supports gender discrimination in employment: that women will (and should) sacrifice their careers to take care of their families in ways that men will not. The point of the remedy is not to redress specific unconstitutional decisions about family leave made by state actors, or even the unconstitutional failure of states to provide particular benefits. Rather, Rehnquist argues, Congress is permitted to get at the root causes of sex inequality by providing a uniform federal benefit.

Two years ago, Rehnquist wrote the majority opinion in the Garrett case, which concerned disability discrimination. In that case, he read the record extremely narrowly. He excluded almost all evidence of discrimination against the disabled as irrelevant because it was from employers other than state employers, and because it was evidence of discrimination against the disabled of a different sort than the precise statutory provision that was before the Court. He refused to assume that societal discrimination or even discrimination by local governments suggested that states might also discriminate, and he refused to accept the proposition that because states might discriminate against the disabled in some ways they would discriminate in other ways. In short, he rejected the very sorts of inferences and arguments that he accepted in Hibbs. Not surprisingly, Justice Kennedy’s dissent calls him on this, and points out that according to the standards used in Garrett, the case should come out the other way.

So why did Rehnquist and O’Connor switch sides? Here are some possible explanations:

1. Personal considerations. O’Connor is particularly conscious of the value of family leave for women and therefore her concerns about federalism are attenuated. Rehnquist’s possible motivations are more various: The Chief is about to retire and he wants to go out with some opinions that will make him look moderate and statesmanlike. Hibbs is a much better candidate to do this than any of the other high profile cases the Court is about to announce. In the alternative, Chief Justice Rehnquist recognized that O’Connor was going to jump ship anyway, so he joined the majority opinion so that he could write it or assign it himself and thus control how broad the argument was. (This is something that Chief Justice Burger did regularly, much to the annoyance of his colleagues).

2. Heightened scrutiny. A second possibility is that Chief Justice Rehnquist and Justice O’Connor believe that where Congress is preventing or remedying discrimination that the Court has found subject to close judicial scrutiny, like sex or race discrimination, Congress should be given more leeway to prove its case. That is because there is much less danger that Congress is trying to interpret the Constitution more strictly than the Court is. Alternatively, Congress should have more leeway to fashion remedies because the states are more likely to be engaging in invidious discrimination where laws or practices touching upon suspect classifications are concerned. Note, however, that this begs the question, because family leave policies that have merely disparate impact on women do not violate the Constitution. As Justice Kennedy points out, under the Court’s precedents, mere failure to provide parenting or family leave is not sex discrimination, even if it affects women more heavily than men. Put differently, what is most interesting about the majority opinion is that it recognizes family and medical leave as a sex equality issue even though the Court’s own precedents do not.

3. Distinguishing between “old” rights and “new” rights. Another possibility is that Rehnquist and O’Connor are willing to give Congress a freer hand in imposing liability on states where questions of race and gender equality are concerned, because the long history of struggles for racial and gender equality have established the centrality of these values. By contrast, age and disability discrimination laws are comparative newcomers. Under this reading, Kimel and Garrett are mostly about reining in the proliferation of new egalitarian causes of action that go beyond the traditional categories of race and gender. So the difference isn’t federalism but how Rehnquist and O’Connor feel about the substantive importance of race and sex discrimination vis a vis other, newer egalitarian demands. It will be interesting to see how the two of them vote in the Lawrence case to be decided this Term, which concerns the rights of homosexuals.

4. Never take a good thing too far. A fourth possibility is that Rehnquist and O’Connor are wary of extending the Court’s federalism precedents to trench on highly visible and consequential civil rights statutes like the FMLA because this would spark hostile public reaction and undermine the Court’s authority. This is pure prudentialism– what makes the cases come out different is not the force of doctrinal logic but a set of political calculations about how Congress and the public will accept the decision. Nevertheless, one has to wonder, would the hostile reaction be importantly different from that produced by the decisions in Bush v. Gore, which decided a presidential election, or United States v. Morrison, which struck down the Violence Against Women Act? If the Court can decide the latter two cases and remain relatively unscathed, why should the issue of family and medical leave by state employers be any different?


Friday, May 23, 2003

JB

Two Sobering Thoughts

Two things happened yesterday that gave me a start. The first was an e-mail from Jim Ryan, a visiting Professor from the University of Virginia. As I mentioned in a previous post, Jim and I were walking right outside the Yale Law School on Wall Street when the bomb exploded on Wednesday. A few minutes before that, we were talking over whether to go outside for coffee (it was drizzling) or go downstairs to dining hall to see if it was still open. I said I didn't mind the rain, so we went outdoors. Jim pointed out that if we had decided to go to the dining hall, we would have gone down the main staircase and past Room 120 just as the bomb went off.

I'll bet there are at least a hundred people at the Law School who had close calls of that sort, probably much closer calls than that. A few feet more down the main hallway, a decision to go left rather than right, all of those contingencies might have made the difference between safety and injury. As a community, we were incredibly lucky. Somebody up there must have been watching out for us.

The second start came when a group of agents from the FBI and ATF came to my house Thursday evening. This was my second interview of the day. They were utterly professional and polite. They did their jobs incredibly well. But the first words out of their mouths threw me for a loop.

"Professor, we'd like to ask you about some of your writings....."

For a second, just for a second, I thought: "Oh my God, John Ashcroft has finally sent them to round me up for all those anti-Bush op-eds I've written."

And sure enough, one of the agents put a folder on the table in front of me containing a copy of all my recent op-eds, downloaded from the Internet and neatly printed out.

It quickly became clear what was going on. They wanted to know if anything I had written might have enraged someone enough that the person might consider taking his or her frustrations out on the Law School. They asked me which of my recent op-eds had gotten the most virulent responses. They didn't seem to know about my blog, or indeed, about blogs in general (although perhaps they were just playing possum). I explained what a blog is and how it changes the audience for political writing, how the Internet changes the group of people who can react to what you are saying. They asked for an example, and I mentioned how one of my op-eds criticizing Bush had been picked up by the conservative site NewsMax and distributed to their readers by e-mail and on the Web as part of a special "Insider's Report." The idea, apparently, was to stoke up some resentment at what NewsMax called the "most demonic form" of the liberal academy, an "Elitist Yale Law Professor." That NewsMax story ends, by the way, with the following lovely quote:

Balkin's commentary reveals what we at NewsMax believe, that the real enemy is not from without. These evil folks have always been and always will be. The real enemy is within. Welcome to American academia.

I told the FBI and ATF agents that although I'd received plenty of hate mail, I had never gotten any death threats or threats against the school. Just a lot of letters and e-mails from people who really, really didn't like what I had to say. They showed me a couple of composite sketches and asked if I recognized them. (I didn't). Then we talked about possible theories of who would want to bomb the school and why. After about thirty or forty minutes, we shook hands, I wished them good luck, and they left.

They were just checking out possible leads, possible theories of the case. That's their job. And for that reason the agents had to ask me about what I'd written, and what people might have thought about it. But I came away from the interview very depressed. I very much didn't want to believe in this particular theory of the case-- the idea that some nut job attacked the school and endangered its students because he or she didn't like the political beliefs of some of its professors. There are a hundred other reasons, I've told myself, why that bomb could have been set off. It will turn out to be one of them, I know.

Above all, I don't want to believe it because it would just be too depressing if it were true.


JB

Balkinization goes XML

I've installed an RSS 0.92 compatible link at the end of the blogroll. You may aggregate away.

Thanks to Derek Slater and Rebecca Tushnet both for the suggestion and for explaining how to do it.


Thursday, May 22, 2003

JB

More on the Explosion at Yale Law School

It is looking more and more likely that the explosion was caused by a bomb. The FBI, Homeland Security, ATF, as well as state and local law enforcement agencies are coordinating investigations, interviewing everyone who was in the building that day.

The damage to Room 120 and the Alumni Reading Room was extensive. Debris fell down the staircase from the Alumni Reading Room leading down to the International Law Library and Rare Book Collection. A pipe burst, pouring water on many of the rare books. Some of them can be restored, others may not be.

The law school community is a bit shaken but still in good spirits, because all of us know that we were very very lucky-- there were no injuries. If someone had been killed in this explosion, the mood here would be very different. Graduation will go on as scheduled, and we will not move over to the gymnasium. The graduation will take place in the courtyard, in the very heart of the Law School.

One amusing anecdote in an otherwise somber day: The wall between Room 120 and the Alumni Reading Room collapsed. Several portraits hanging in the Alumni Reading Room fell off that wall. My sources tell me that Bob Bork's, Pat Wald's,and former Dean Abe Goldstein's portraits were damaged, but Eleanor Holmes Norton is still up on what remains of the wall. The portrait of Guido Calabresi, former dean and now a judge on the Second Circuit, was also on that wall. Dean Tony Kronman reported that when he came in to inspect the damage, the portrait had somehow done a 270 degree flip and landed on its back, face up, completely undamaged.

That's Guido for you.

And that's the Yale Law School too. You can try to bomb us, but we will just do a backflip and come up good as new.



Wednesday, May 21, 2003

JB

Explosion at Yale Law School

I was walking out of the Law School building about a quarter of five in the afternoon with Jim Ryan to get some coffee when we both heard a big explosion from the Yale Law School building. A few minutes later, the entire Yale Law School community was walking down York street. Apparently an explosion occured in Room 120 on the first floor. Several students reported seeing a fireball in the main hallway that connects the various classrooms. Others reported that the wall in the Alumni reading room next to room 120 was destroyed.

The Law School has been cordoned off, and police have surrounded the area. I'm told the FBI has been called in. It's still not clear if this is an accident (an exploding pipe) or a crime scene (a bomb).

As of yet, there are no reports of injuries, but we don't know if anyone was in Room 120 when the explosion occured. This week is part of exam period and I don't know if students were working there.

I'm very worried about my students.


UPDATE: So far there are no reports of injuries, thank goodness. The building is closed off at least through Friday. (Graduation is Monday, but I assume we will move over to the gymnasium, as we have in the past when there's rain). Speculation is running rampant as to the cause of the explosion. We still don't know if it was a bomb or an exploding pipe. At the 6:30pm news conference Mayor DeStefano said he thought it was an "explosive device" (which, I assume, is a fancy name for a bomb). But we really won't know for some time.


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.


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