JB

This is a great day for liberty in the United States.

The opinion in Lawrence is by no means flawless, but it is much more than I think most supporters of equal citizenship for gays might have hoped for from the current Court.

Justice Kennedy wrote the majority opinion, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Sandra Day O'Connor concurred in the judgment.

The opinion is based on an extension of the right of privacy. Bowers v. Hardwick is overruled.

Justice Kennedy's opnion is noteworthy in several respects. First, he spends some time attempting to undermine the historical claim relied on in Bowers v. Hardwick that there is a long tradition of prohibition of same sex sexual relations; he argues that sodomy laws are of comparatively recent invention. Second, he points to decisions in other countries, including the U.K. as well as the European Court of Human Rights, as evidence that Western views about homosexuality have changed. Third, he argues that the reaffirmation of the right of privacy in Casey and the Court's decision in Romer v. Evans have undermined the precedental strength of Bowers, and that when a precedent's strength is undermined in this way, it is appropriate for the Court to look to scholarly commentary and the decisions of other constitutional courts. Finally, Kennedy argues that Bowers was wrong when it was decided, and it is wrong today.

Justice O'Connor concurred in the result, arguing that laws which are premised on mere moral disapproval of homosexuality fail the test of minimum rationality. This would also seem to reject a basic premise of Bowers v. Hardwick, which argued that the rational basis for Georgia's ban on sodomy was the legislature's moral disapproval of sodomy. O'Connor argues that Bowers involved general disapproval of sodomy; here, she insists, a ban only on same-sex sodomy must be nothing other than moral disapproval of homosexuals. In fact, I think this argument, which attempts to achieve a much narrower holding than the majority, is much more complicated than O'Connor thinks it is, for she is assuming a clear connection between what one does (engage in same sex relations) and who one is (a homosexual). That is, ironically, the very same assumption that Justices White and Burger made in Bowers.

Justice Scalia wrote the dissent, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Justice Scalia felt very strongly about the result, and read his dissent from the bench: "The court has largely signed on to the so-called homosexual agenda," he argued, although he also insisted that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." As in his previous dissent in Romer v. Evans, Scalia argued that "The court has taken sides in the culture war."

Although that argument sounds superficially plausible, the Court also took sides in the culture wars in Brown v. Board and in the 1970's sex equality cases. That in and of itself is not a sufficient reason to reject the decision.

In fact, the Lawrence decision continues a well known practice of the Court, which is to follow larger political and cultural trends, and to declare a legal prohibition or practice unconstitutional only when most states have already repealed or greatly limited it.

In 1960, for example, virtually every state had an anti-sodomy law. Since then, these statutes have been repealed or overturned in 37 states. 13 states still have some form of sodomy laws on the books, 9 (Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia) ban all sodomy, 4 (Texas, Kansas, Oklahoma and Missouri) ban only same sex sodomy. All of these laws are likely unconstitutional in the wake of Lawrence.

In this sense the Supreme Court is much less antimajoritarian than is commonly assumed. To be sure, it clearly overturns decisions by particular majorities in states. But what is really does is impose a single national rule of minimal civil rights protection on the states that have contrary views. As I mentioned before, this is a fairly characteristic practice of the Court. Much of the work of the Warren Court, for example, can be seen as imposing national standards for criminal proceedure on recalicitrant states, mostly in the South, which had often cut corners where black defendants were concerned and violated their basic rights. It is probably more correct to say that Lawrence is antifederalist than that it is antimajoritarian.

The Supreme Court's decision to base Lawrence on privacy grounds rather than equal protection grounds (equality is what the petitioners originally argued) actually is a more modest change in the law than it first appears. By grounding gay rights in privacy rather than equality, the Court does not have to hold that gays are a suspect class or that classifications based on sexual orientation are entitled to heighted scrutiny. And it also holds off, for the time being, a decision about whether same sex marriage violates the Constitution.

Ironically, at the same time, basing Lawrence on privacy rather than on equal protection has some advantages for those members of the queer community who do not wish courts to view all sexual orientation minorities as a single group. An equality holding would push gays toward a civil rights paradigm based on an analogy to blacks and women. Instead, the queer community has been arguing for their right to conduct their sexual lives as they see fit, free from government sanction, thus allowing them to experiment with different forms of attachment and different forms of sexuality. A decision grounded in liberty rather than equality is more hospitable from this perspective.

Nevertheless, Justice Kennedy went out of his way to argue that the privacy right recognized in Lawrence is limited. It applies only to consensual conduct between adults, it does not encompass prostitution or public sexuality, or coerced sex, or sex with minors, (or, indeed, any of Rick Santorum's parade of horribles) nor does it give any right to same sex marriage or legal recognition of same-sex relationships. It is clear that this Court, at least, is not willing to say any more than that what homosexuals do in the privacy of their own homes is up to them. Of course, that's not the same thing as full equality of citizenship, and Kennedy's insistence on what people do in their "private lives" may eventually be turned to undermine the rights of gays to the extent that they are not fully free to express their sexual orientation in public. But it is a start.

Finally, Justice Kennedy's decision closes with a passage that sounds pretty much like an endorsement of living constitutionalism. He argues that the framers of the Due Process Clauses of the Fifth and Fourteenth Amendments "knew that times can blind us to certain truths and that later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

That's not very orignalist of Justice Kennedy, if I may say so.

UPDATE: Phil Carter discusses what this means for the military ban on gays. Because lower courts have relied so heavily on Bowers to justify the military's policies of exclusion and "don't ask don't tell," it seems likely that the constitutional underpinnings of these decisions will now collapse. But it will take some time.

JB

Apparently it's not Karl Rove who is behind President Bush's policies, as explained in this article from Ha'aretz:

According to [Palestinian Prime Minister Mahmoud] Abbas . . . Bush said: "God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them."

I for one am particularly glad to learn that George W. Bush has been acting on direct orders from Almighty God. If he had been relying on his own intelligence, I would be deeply worried that he was running the country into the ground.

Of course, it is always possible that God is hardening Bush's heart, as he did with Pharaoh.

Nah, wouldn't happen.

We all know he's a compassionate conservative. There's no chance that Bush could be hard hearted.

(But if you see any frogs or locusts, please let me know as soon as possible.)

JB

Glenn Reynolds wants to know if any left wing bloggers think that the following remark of Dick Gephardt is stupid:

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day "

If all he meant was that he would try to migitate the effect of Supreme Court decisions he does not like through various executive orders, (which can sometimes be done constitutionally, especially if the decision in question is statutory or a construction of administrative regulations rather than based on an interpretation of the Constitution) he expressed himself very badly indeed and should work harder at being more precise and not misleading his audience.

Bryan Preston, however, wants to argue that Gephardt's remark is as bad as Trent Lott's remark that the country would be better off if Strom Thurmond had been elected President in 1948. With all respect for Bryan's undoubted love of our constitutional system, I'm afraid I can't go that far. Gephardt's remark shows that he panders to constituencies and has only a passing acquaintance with the separation of powers. Lott's remark shows that he panders to constituencies by using racist code. Gephardt should be ashamed of himself for telling folks that he can do what he has no power to do. Lott should be ashamed of himself for playing to racist sensibiilties.

JB

Stuart Buck points to some very puzzling language in Justice O'Connor's opinion:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6 (1978); Bakke, 438 U.S., at 319, n. 53 (opinion of Powell, J.).

Stuart points out that this makes little sense if the court is applying the strict scrutiny that it says applies to all racial classifications, and regardless of whether whites or minorities are harmed or benefitted.

[N]ever have I seen a case in which a court announced that an entity accused of racial discrimination was to be given deference as to its claim that the discrimination at issue produced positive benefits. Supporters of affirmative action would do well to think hard and long before applauding this sort of analysis. (Unless, that is, the Court takes the unprincipled route of limiting the application of deference to this particular case.)

[Is that last parenthetical a reference to Bush v. Gore?]

I also found the language about deference rather striking, although for somewhat different reasons. The issue at stake in Grutter is whether Michigan is unconstitutionally discriminating on the basis of race. The Court seems to be giving them the benefit of the doubt because, presumably, it thinks that Michigan's decisionmaking process is benign rather than invidious.

I think this demonstrates, rather conclusively, that the majority is not applying strict scrutiny, even if they say they are. And it also seems to demonstrate that the Court has effectively adopted a distinction between benign and invidious motivation even though they deny it. Both of these positions are inconsistent with what the Court says in Adarand. (Although, I must point out, even Adarand is not really consistent with the rule it announces, because had the government contracting policies in that case favored whites instead of minorities, the Court would not have sent the case back for further hearings to see if the policy satisifed strict scrutiny but would have struck the policy down immediately.)

Thus, it seems that to this extent Justice Marshall and Justice Brennan's position in Bakke has won out, although nobody is willing to admit it. Even though Stuart and I probably don't agree about the result in Grutter, I am sure that he agrees with me that it would be better to be honest about what the Court is doing rather than to hide behind these particular legal fictions.

JB

Perish the thought.

But according to this story from the New York Times, at least some of them do:

The Supreme Court rulings on the University of Michigan admission policies set off a wave of consternation among conservative groups today. As a result, several officials of the groups plan to demand that President Bush choose someone whose opposition to affirmative action is beyond doubt for a vacancy on the court. . . .

Many conservative public policy groups and conservative political figures have urged the adoption of a wholly race-blind policy that shuts the door completely on any advantage for race or ethnicity. There is great scorn among those conservatives who form an important part of Mr. Bush's political base for any equivocation on such issues. . . .

"It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees," said Clint Bolick, vice president of the Institute for Justice, another conservative group that challenged the Michigan programs.

"Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences," Mr. Bolick said, adding that many do not believe that [Alberto R. ] Gonzales [the White House counsel] fits that description.

Speaking on the condition of anonymity, a lawyer who advises the White House on judicial nominations said Mr. Gonzales's position of openness to diversity is now an even greater problem with Mr. Bush's conservative supporters.

In fact, there is nothing suprising here. Since Richard Nixon, the Republican Party has been pursuing a strategy of partisan entrenchment-- attempting to place judges on the federal bench who will take conservatve stands on important issues like race relations, church and state, abortion, criminal procedure and federalism. The goal is to turn back decisions of the Warren and early Burger courts that conservatives cannot abide and to push the Constitution in still more conservative directions. (Indeed, one of the ironies of judicial nominations of recent vintage is that as the Republicans have been taken over by the party's vibrantly conservative southern and western wings, and thus become much more conservative in the past twenty years, the earlier Republican judicial appointments of Presidents Nixon and Ford have seemed altogether moderate by comparison.)

The quest to take back the courts from the wicked Warren Court and its liberal philosophy became even more urgent under President Reagan, and George W. Bush has pushed it even harder, refusing to compromise with Democrats, and thus helping contribute to the current unpleasantness over judicial nominations.

Until very recently, Republicans have simply cared more about the average judicial appointment than the Democrats have, and they have fought long and hard to put people who think the right way (in both senses of that term) on the federal bench. Although this is usually phrased in terms of appointing judges who will abide by the Framers' intentions and will uphold the law and not impose their personal perferences, the politics of Republican judicial appointments, particularly since Reagan, have been abundantly clear.

Nevertheless, President Bush, who is a shrewd politician, well understands that even as he attempts to pack the Court with judges whose beliefs he admires, he must keep public opinion in mind in making judicial appointments at the Supreme Court level (by contrast, very few members of the public pay much attention to lower court nominations). His father understood this point too, which, I think, explains both Souter's appointment and Thomas'. (Souter was more acceptable because unknown, Thomas was expected to be more acceptable because although he was very conservative he was also African-American).

I have long believed that it is not in the interest of the Republican Party for Republican-appointed judges to overrule Roe v. Wade. (See my discussion of the Supreme Court and party coallitions). Nor, for that matter, is it in the interest of the Republican Party for those judges completely to outlaw affirmative action in college admissions (government contracting is another matter). Getting rid of Roe and affirmative action through judicial fiat simply bolsters the Democratic coallition. I'm sure that Bush and Karl Rove understand this perfectly.

UPDATE: Brett Bellmore wants to know whether it is my view that Republicans were the first to engage in partisan entrenchment. Goodness no. The most important example is Democrat Franklin D. Roosevelt's stocking the courts with pro-New Deal judges, who eventually produced the New Deal revolution in constitutional law. Partisan entrenchment has been a key engine of constitutional change throughout the country's history, as Sandy Levinson and I have argued. In fact, partisan entrenchment is neither a Democrat or a Republican invention. It is a Federalist invention. It begins with the Midnight Judges Act of 1801, in which the lame duck Federalist Congress tried to stock the federal courts with their ideological allies. That attempt produced the famous case of Marbury v. Madison and the equally important if less well known case of Stuart v. Laird. The most lasting effect of this partisan entrenchment was none other than John Marshall himself, who continued to promote nationalist ideas long after the party that promoted him to the Chief Justiceship had been disbanded.

JB

All in all, a big victory for institutions of higher education, which can engage in race conscious affirmative action as long as they engage in individualized determinations and do not use point systems to ensure a specific number of minority admissions.

The Law School policy, which focuses on achieving a critical mass of minority students, was upheld, 5-4.

Justice O'Connor wrote the majority opinion in the law school case. (Available here.) She reaffirmed the central premise of Bakke: "The Equal Protection Clause does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

The lineup was the expected one: Stevens, Souter, Ginsburg and Breyer joined O'Connor. The dissenters were Rehnquist, Scalia, Kennedy and Thomas.

In the undergrad case, (available here) Chief Justice Renquist wrote the majority opinion. O'Connor and Breyer switched sides. Breyer concurred in the judgment but did not join Rehnquist's majority opinion. Stevens, Souter, and Ginsburg dissented.

The result, one hopes, is a set of two opinions that will allow schools to know what they can do and cannot do in affirmative action programs.

Several things are noteworthy about these opinions.

The Court reaffirmed Justice Powell's opinion in Bakke. Justice O'Connor, who has been concerned about treating students as individuals rather than as members of groups, focused on Justice Powell's concern with individualized determinations. As a result, she joined the majority in the undergrad case, where, Chief Justice Rehnquist said, the university failed to offer individualized determinations.

Because they require individualized determinations, Grutter and Gratz together will require state universities to spend extra money. The result benefits elite schools and private colleges with relatively fewer applicants and imposes more costs on large state universities that have many, many more applicants every year.

O'Connor's opinion in Grutter also made clear that the states do not have to adopt race netural alternatives (like ten percent plans, which are not really race neutral in any case) before they consider race conscious affirmative action in admissions. This is a rebuff to advocates of race neutral plans who insisted that if strict scrutiny applied to race classifications, then states would have to exhaust all possible race neutral methods of increasing minority enrollments before they considered race conscious affirmative action programs. Indeed, Justice Kennedy's dissent in Grutter says that he does not believe that what Justice O'Connor applies in Grutter is really strict scrutiny at all.

Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.

Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise. (Update: I see that my friend --and former O'Connor law clerk-- Eugene Volokh concurs with this assessment of what O'Connor was doing in mentioning the 25 year period).

Most institutions of higher education should be breathing a sigh of relief at these two opinions. They allow most elite institutions to go about their business as before. They impose higher costs on big state universities, but many of these universities are already so firmly committed to affirmative action that they will probably gladly take on the additional costs. Essentially the Court has said that affirmative action in higher education is constitutional, as long as individualized determinations are made and specific markers or point systems virtually guaranteeing predetermined numbers of minorities are not used.

JB

Jane Galt of Assymetrical Information offers the following pithy assessment of contemporary partisanship:

Jane's Law: The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.

Which leads to the obvious question: Which is Jane then, smug and arrogant or insane?

JB

Jim Lobe's story from Inter Press explains:

It was just 45 days ago that President George W Bush, in a campaign-perfect photo-op, landed on the USS Abraham Lincoln off the coast of California, swaggered across the deck in full flight gear, and declared that ''Operation Iraqi Freedom'' had liberated that nation from the evil clutches of former President Saddam Hussein.

But within six weeks, the U.S. Central Command in Baghdad has unleashed a new campaign with a far more ominous name. ''Operation Desert Scorpion'' is designed, in the equally ominous words of Monday's 'Wall Street Journal', ''to avoid a prolonged guerrilla campaign'' that appears to be underway, at least in what is now referred to as ''the Sunni Triangle'' of central Iraq.

It is clear that the 10 weeks of chaos that followed the collapse of Hussein's government in early April have taken a serious toll on U.S. hopes that Iraqis, either out of fear and awe of Washington's military might or out of gratitude, would simply do what they were told by their liberators.

To this point many Americans have been so overjoyed that we won a quick and decisive victory in Iraq that they have not been too concerned that the Administration has failed to find the weapons of mass destruction that were the stated justification for the war.

But what happens if it turns out the war isn't over? What if turns out that we didn't win an easy victory, but are in fact in for a much longer, more difficult war of attrition, in which many more American soldiers will be killed or wounded?

Perhaps then Bush's dressing up in the costume of a military man, strutting around the deck of the Abraham Lincoln, and announcing the war is over will look arrogant, foolish, and shortsighted.

Perhaps it already does.

JB

At least this seems to follow from these remarks in his weekly radio address, as reported by Reuters:

President Bush, floating a new explanation for the failure to find banned weapons, said suspected arms sites had been looted as Saddam's government crumbled.

"For more than a decade, Saddam Hussein went to great lengths to hide his weapons from the world. And in the regime's final days, documents and suspected weapons sites were looted and burned," Bush said in his weekly radio address.

One of the reasons why war skeptics like myself opposed the war was that if we attacked Saddam he might give away his weapons of mass destruction to terrorist organizations, or those weapons would be spirited out of Iraq during the chaos and confusion of war. Because the stated reason for the war was to make American more secure from weapons of mass destruction held by rogue states, attacking Saddam might well prove to be counterproductive.

In his eagerness to explain why the weapons of mass destruction have not been found (and thus why the Administration was not misleading the public about their existence) the President has now essentially conceded that the very dangers war skeptics warned about may have occurred-- he is attempting to justify the failure to find weapons of mass destruction on the theory that these weapons may have been stolen during the war.

What I want to know is why isn't this an even bigger problem for the Administration than the possibliity that Saddam no longer had weapons of mass destruction when we attacked him? If the Administration concedes the possibility that the weapons were looted, then it has conceded that in its eagerness to go to war it has made Americans less safe, not more. This is not an accomplisment of which the Administration should be particularly proud. It suggests rather that the Administration belicose policies have backfired. And as Americans continue to die in Iraq, and Afghanistan teeters on the verge of collapse, the Administration's foreign policy failures are mounting day by day.

I only wish someone in Congress would have the courage to point this out.

JB

Yes, says this report from Asia Times:

Such is the deteriorating security situation in Afghanistan, compounded by the return to the country of a large number of former Afghan communist refugees, that United States and Pakistani intelligence officials have met with Taliban leaders in an effort to devise a political solution to prevent the country from being further ripped apart.

According to a Pakistani jihadi leader who played a role in setting up the communication, the meeting took place recently between representatives of Pakistan's Inter-Services Intelligence (ISI), the US Federal Bureau of Investigation and Taliban leaders at the Pakistan Air Force base of Samungli, near Quetta.

Hey weren't the Taliban evildoers or something? Come to think of it, weren't they the guys who gave al-Qaeda a safe haven-- you remember al-Qaeda, don't you, the guys who bombed the U.S. on 9-11?

When I read this report, I really couldn't believe it. What was the FBI doing in Pakistan? They do domestic surveillance, right? Then I read this report from the Washington Times:

FBI Director Robert Mueller discussed new plans to catch al-Qaida suspects in a recent visit to the Middle East and Pakistan, diplomatic sources told United Press International Thursday.

The plan includes speeding up efforts to catch Osama bin Laden and other al-Qaida leaders believed to be hiding in a tribal zone between Pakistan and Afghanistan, the sources said.

The FBI already has an extensive presence in both the Middle East and South Asia, but is now trying to expand its network with the help of regional intelligence agencies.

If it turns out that Administration officials knew of or authorized a meeting with the Taliban, they will have some serious explaining to do.

JB

A truly revolutionary set of changes is occurring right now in Canada, which will have important repercussions in the United States.

The Canadian Federal Government has announced that it will rewrite national laws recognizing same sex marriages. The Canadian government acted in response to two appellate decisions, the most recent in Ontario, Halpern v. Attorney General of Canada, which held that the national law which defined marriage as being only between a man and a woman violated section 15 of the Canadian Charter of rights and freedoms.

Alberta Premier Ralph Klein has threatened to invoke section 33's notwithstanding clause to prevent same-sex marriage in his province. For those of you unfamiliar with Canadian constitutional law, if a court declares that a national or provincial law violates certain sections of the Charter, the government that passed the law may repass it, declaring that it shall be valid notwithstanding the court decision. (It must repass the law every five years thereafter). The problem is that the law in question was a federal law, and it is not clear that a province may invoke section 33 where a Canadian court holds that a national law violates the Charter. Alberta may have laws on solemnization of marriage by clergy that it might seek to protect through section 33, but this should not affect the right of same sex couples to be married in civil ceremonies.

Several things are interesting about the decision from an American perspective:

First, in Canada the rights and benefits of marriage are a matter of federal law, not state law. In the United States many people (including members of the Supreme Court) have argued that issues of marriage and divorce are inherently local subjects and therefore must be left up to state governments. The Canadian example suggests that there is no inherent reason why this has to be the case, other than tradition.

Second, the Ontario court chose a different path than the Supreme Court of Vermont. In Baker v. State, the Vermont Court held that Vermont's marriage laws violated the common benefits clause of the Vermont Constitution, but the did not strike down the state's marriage laws or order that same-sex couples had the right to marry. Instead, the Court remanded the issue to the Vermont legislature asking them to come up with a statute for same sex couples that had effectively the same benefits as marriage. Vermont passed its civil unions law to comply with the court's decision. By contrast, as a result of Halpern, same sex couples may now apply for marriage licenses in Ontario. This speaks volumes about the relative political strength of the courts with respect to this very sensitive issue in Canada and the United States. The Vermont Supreme Court knew that popular referenda in Hawaii and Alaska had essentially cut short any experimentation with same sex marriage by the courts in those states, and it wanted the change in Vermont's marriage laws to have the legislature's imprimatur. In fact the Vermont legislature stopped short of granting marriage rights to same sex couples, and created an equivalent called civil unions. The Ontario court, by contrast, did not hesitate to order immediate relief; at last report, the Canadian government is planning to redraft the law to allow full same sex marriage, not civil unions.

Third, it's important to recognize that Canadian constitutional law has gone much further than U.S. law on the issue of gay rights. In 1995, The Canadian Supreme Court held that sexual orientation was a ground analogous to classifications based on race and sex, which are protected by section 15 of the Charter (roughly equivalent to the American 14th Amendment's Equal Protection Clause). Of course, the U.S. Supreme Court's decision in the Lawrence case, which is expected any day now, may change the legal landscape in the U.S. considerably, but given the nature of American politics, it is doubtful that it will catch up to what is going on in Canada for some time.

Fourth, the legalization of same sex marriage in Canada will eventually have effects on the debate over same sex marriage in the United States. Canadian marriages are generally recognized in the United States as a matter of comity between nations. (The 1996 Defense of Marriage Act does directly not apply to this question; it concerns recognition of marriages between states. Nevertheless other portions of DOMA suggest that as a matter of some aspects of federal law same sex marriages will not be recognized). Athough many states will probably refuse to recognize Canadian same sex marriages as against the state's public policy, a few states may recognize Canadian same sex marriages even if they do not themselves provide for same sex marriages. Perhaps equally important, the Canadian law will put considerable pressure on states either to recognize various spousal benefits for same sex couples or to edge closer and closer to same sex marriage. Even if the legal effects of the Canadian decision in the United States are uncertain, the decision, and Canada's subsequent legislation recognizing same sex marriages will have enormous symbolic impact.

JB

A report from the Council on Foreign Relations and the Asia Society warns that the U.S. is on the brink of losing the peace in Afghanistan due to its neglect of conditions after the overthrow of the Taliban.

"Unless the situation improves, Afghanistan risks sliding back into the anarchy and warlordism that prevailed in the 1990s and helped give rise to the Taliban," [the report] said, referring to the puritanical Islamic group that governed the country of 28 million from 1996 until the 2001 US-led war. . . .

The report's findings were echoed by Pakistan's President, Pervez Musharraf, who called for a huge expansion of the international force in Afghanistan to fill the growing vacuum outside Kabul.

General Musharraf estimated that the force needed to be increased from 14,000 soldiers - almost all of whom are in Kabul - to between 40,000 and 45,000. . . .

There are 5000 troops in Afghanistan under the United Nations banner and 9000 US troops. The British Government has rejected a request from Mr Karzai for more troops.

Before overthrowing the Taliban for harbouring the al-Qaeda network, accused of masterminding the September 11, 2001, terrorist attacks, the US said it would try to help rebuild the nation quickly. . . .

One of the lead authors, Frank Wisner, a former U.S. ambassador to India, said U.S. credibility was on the line and if Washington "did not get it right in Afghanistan it will be a lot harder to convince others to work with us to get it right in Iraq."

Our inability to live up to our promises in Afghanistan should give anyone pause. As Wisner points out, it casts doubt on our bona fides in Iraq. In the alternative, it suggests that the Administration has a particularly short attention span when it comes to its foreign policy committments. It is eager to use force but is unwilling to accept the inevitable consequences of using force-- that is, devoting itself to the expensive, time consuming and altogether less glorious task of cleaning up the mess it creates.

That lack of follow through has serious consequences for the War on Terrorism. If the Bush Administration does not work hard to rebuild Afghanistan (and Iraq), it will not have made our country more secure. Quite the contrary, nothing could set the peoples of the Muslim world more firmly against the United States than a practice of repeatedly invading Muslim states and leaving them in ruins.

One can see lots of things in the Administration's policies toward Afghanistan. I am afraid that moral clarity is not one of them.

JB

Reuters reports that President Bush has rejected offers to consult with Senate Democrats on the next Supreme Court appointment in order to avoid a trainwreck:

Democrats have urged President Bush to avert a major confirmation battle by consulting with them before making his selections.

"The more we can consult, the more we can meet, the more we can talk about avoiding a major confrontation, the better off the country and the system will be," Senate Democratic Leader Tom Daschle said after meeting with Bush at the White House.

But White House spokesman Ari Fleischer called Daschle's request a "novel new approach to how the Constitution guides the appointment process."

"We always welcome thoughts, but certainly no one wants to suggest that the Constitution be altered," Fleischer told reporters.

This is all posturing, since there's nothing in the Constitution that prevents the President from consulting with members of the Senate before putting a name forward. Presidents have often floated trial ballons and sought advice privately without surrending their right to make the ultimate determination about who they will appoint. For example, President Clinton consulted with the Republican Senate Judiciary Chairman Orrin Hatch before making his nominations of Ruth Bader Ginsburg and Stephen Breyer.

Given that Fleischer's claim that consultation with Senate Democrats would effectively amend the Constitution is just plain silly, what's going on? It's quite simple. Bush is sending signals that he is unwilling to compromise. That is standard operating procedure for this president: He does not believe in compromising unless it becomes clear that he will lose; then he is willing to cut a deal. Knowing this, the best strategy for the Democrats is to respond in kind. They must threaten a very bitter confirmation battle even if neither side wants one.

It should be obvious by now, three years into this Administration, that the President is a bully, and one must always stand up to a bully.

JB

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.

JB

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.

JB

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

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

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.

JB

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

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.

JB

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

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.

JB

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

JB

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

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.