Vote for Me (Maybe)

Mark Graber

I have just been nominated to be on the Governing Council of the American Political Science Association. Below is my assessment of the some of the issues facing the discipline. As those who have looked at this blog today may note, I had some trouble getting this entry to post correctly. My apologies to Charles for deleting his comment in my attempt to improve matters.

I am honored to be nominated to the APSA Council, even if the nomination occurred thirty-five years too late to be included on my college applications. My main disciplinary interests are pedagogical. As a profession, we should be concerned with the increased roles of adjuncts in the political science classroom. Consider in the diminishing number of undergraduates who find two tenured or tenure track professors to write their letters of recommendation. If as is the case at many universities, adjuncts routinely teach Introduction to Comparative Politics and Civil Liberties for an economic pittance, then perhaps all universities and colleges should rely on adjuncts. I do not believe that as a profession we have confronted this issue or explained what tenured and tenure track professors contribute to the classroom.

I am also concerned about the increasing narrowness of thinking in the discipline and the academy at large. Once upon a time, people like me were scholars. Then we became political scientists. Afterwards, we were progressively reduced to being members of the law and courts subfield, part of the constitutionalism wing of the law and courts subfield, historical institutionalists in the constitutionalism wing of the law and courts subfield, etc. As a white, married Jewish male with three daughters (“children” would be too general), who is an historical institutionalist in the constitutional wing of the law and courts subfield, I am increasing expected to talk only with the other three members of the field who might meet that description. I would like to be a scholar again, an ambition I suspect animates many of us. To this end, I believe the APSA should continue ongoing efforts to have us broaden our intellectual focus, provide increased opportunities for interactions between political scientists in different fields, and promote extensive contacts with scholars in other buildings whose work ought to be of interest.



Posted 4:18 PM by Mark Graber [link] (6) comments

Better late than never: the scales fall from former-Sen. Stevens's eyes

Sandy Levinson

I am very glad that Attorney General Holder has dropped the charges against former Senator Ted Stevens. But what most intrigues me about a story posted in today's NYTimes noting that the federal judge in the case has ordered an investigation of the DOJ attorneys for possible criminal misconduct is Stevens's own reaction:

“Until recently, my faith in the criminal justice system, particularly the judicial system, was unwavering,” he said. “But what some members of the prosecution team did nearly destroyed my faith. Their conduct had consequences for me that they will never realize and can never be reversed.”

How could an 85-year-old man with literally decades of service in Congress, with every opportunity to be well aware of the actual operation of the American system of criminal justice, have "unwavering" faith in its operation, even at the federal level (which I assume is significantly better than many state systems)? Is he stupid, or merely a raving ideologue? Has he really been living a totally sheltered life, in which he believes that there are no innocent people on death row who were victimized by ambitious prosecutors (and, in judicial-election states, judges) who wanted to prove to the public that they were "tough on crime," that there were no differences, correlated with race and class, in the plea bargains and recommendations for sentencing (e.g., "community service") that are put forth, and the like?

Might we not expect more from civic leaders who actually pass laws regarding the operation of the criminal justice system (including, of course, regularly cutting the funds available to criminal defense attorneys--fortunately, Stevens could hire a tiger from Williams & Connolly)? (Coming up: Norm Coleman says "it never occurred to me that there could be any problems in the operation of elections in America other than failure to demand voter ID"!)



Posted 3:08 PM by Sandy Levinson [link] (34) comments

Politicizing the Justice Department?

Mark Tushnet

People who should know better have been writing op eds and blogging about the politicization of the Department of Justice, as illustrated, they say, by Attorney General Holder's "overruling" an opinion of the Office of Legal Counsel that legislation giving the District of Columbia a seat in the House of Representatives would if enacted be unconstitutional. The scare quotes and "if enacted" indicate qualifications that any lawyer with an ounce of brains would take into account in thinking about these events -- even more so when, as some have said, somehow the President's duty to care care that the laws be faithfully executed has been violated (or is about to be violated).

The first thing to note -- I would have thought it obvious -- is that NOTHING HAS HAPPENED. As far as we know, the Attorney General has not directed the Office of Legal Counsel to change or shape its legal analysis to fit the administration's policy views, which was at the heart of the claim about the politicization of the Office of Legal Counsel in the prior administration. As far as I can tell, nothing has been done by either the Office of Legal Counsel or by the Attorney General that is inconsistent with the principles that Dawn Johnsen and others developed to guide the Office's actions (with the possible exception, on which the facts are unclear to me, of the timing of the formal release of the OLC opinion -- see Principle Six, which refers to timeliness). Indeed, one characteristic of the events is that the Obama OLC seems to have given weight to prior OLC opinions on the same question even though those opinions reached conclusions inconsistent with the administration's policy preference.

Next, the Attorney General's constitutional duty is only to give his opinion (when requested, in writing) on the constitutionality of the pending legislation. I would have thought it obvious that that duty came into being when, well, he was asked to give his opinion -- which, again I would have thought, would occur after the legislation is adopted by both houses. (I'm speaking here about constitutional and legal obligations, not politically prudent actions.) In arriving at that opinion, the Attorney General can rely on advice from any source; he could call me, or you, or his second cousin, to get advice. There's no legal rule that opinions of the Office of Legal Counsel (his subordinates) are binding on the Attorney General or the President, although of course it's good practice to say something -- issue an opinion of the Attorney General -- explaining why the Attorney General disagrees with that advice. But, again, the time to issue that opinion is when there's actually something for the Attorney General to do, such as recommend a veto or not.

And the situation facing the Attorney General is different when legislation is pending in one or both houses (the current situation) from the one facing him after a bill has passed both houses and awaits presidential signature, veto, or inaction. As Walter Dellinger wrote in his 1994 memo on the President's duty to enforce or refrain from enforcing enacted statutes that in the President's judgment are unconstitutional, when the President is presented with a bill that in his independent judgment is unconstitutional, the President "should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation." (I mention the Dellinger memo to point out that there actually are legal materials available for use in analyzing these questions, not that anyone actually seems to care.) In particular, it is at least open to the President to say, without violating his Take Care obligation, "In my judgment the bill is unconstitutional, but out of respect for the power of the House and Senate to reach their own independent judgment I am refraining from vetoing the bill, and will leave it to the courts to determine the constitutional question." And, prior to taking that position, and again out of deference to a coordinate branch, the President might reasonably ask whether the claim -- remember, here Congress's claim -- that the bill is constitutional is so implausible that his lawyers could not defend its constitutionality in any court challenge. And indeed that is the question Attorney General Holder asked the Solicitor General's office to answer.

Finally -- although I'm sure there's more to a truly lawyerly analysis of the issue -- I observe that the President has three, not two, options when presented with a bill. He can sign it or he can veto it, of course, but he can also refrain from acting. If the bill is presented near the end of a congressional session, this is the classic pocket veto, but the other side of the coin is that if a bill is presented well before a congressional session ends it becomes law without the President's signature. The Dellinger memo implies, I think correctly, that it does not violate the Take Care clause for a president to sign a bill that he believes to be unconstitutional so as to set up the opportunity for a judicial resolution of the constitutional question (on which, the Dellinger memo assumes, the President has reached a conclusion at odds with the one implicit in the passage of the bill by both houses). I would think that that conclusion holds, perhaps even more strongly, if the President refrains from signing the bill.

Now, everything that I've said is a straight-forward analysis of the relevant law in light of the actual circumstances. Of course I believe that in some deep sense law is politics. But the discussion of the politicization of the Department of Justice has not proceeded on that level. Rather, the discussion has assumed that only mean, ordinary, everyday, "where are the votes?" politics is at work. And maybe it is. But until something legally relevant -- some formal action taken by somebody with relevant authority -- happens, a more careful legal analysis of the state of play seems to me required, at least when people are waving the flags of "rule of law" and constitutional duties.
Posted 8:27 AM by Mark Tushnet [link]

Who’s Afraid of International Law?

Guest Blogger

Mary Ellen O’Connell

Not Benjamin Franklin or, indeed, any of America’s Founding Fathers. They were learned men who well understood international law and its importance for our new nation. They understood that independent sovereign statehood is founded in international law. International law does not “attack” sovereignty: it establishes sovereignty!

Once independent, the Founders also understood that to maintain independence, to continue to enjoy sovereignty in the international community means asserting rights and fulfilling duties under international law in relation to other states and individuals.

They drafted a Constitution reflecting this knowledge: our international agreements—treaties—are the “supreme law of the land”. The Constitution has many other references to the “law of nations,” which today we call “international law”. And the Founders engaged in the practice of international law for the new United States: John Jay negotiated a treaty with Great Britain to settle outstanding disputes by arbitration under international law. Benjamin Franklin negotiated a treaty with Prussia containing the first codified promises for the humane treatment of wartime detainees. Thomas Jefferson demanded U.S. rights be respected in the War of 1812.

These great men knew that international law is the law governing relations at the international level. International law has its proper uses and purposes just as law generated entirely within Canada, South Africa, the United States, Indiana, or South Bend has its proper uses and purposes. The key is recognizing the right law for the right purpose.

So why does Glen Beck seem to fear international law? Why is he and decrying strong international lawyers in America’s top international law jobs? As with so many things we fear, the critics seem to be speaking against something they do not understand. At times they appear to be confusing international law with communism or other ideologies against which Americans have had to struggle in war and peace.

International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.

President Obama spoke eloquently on election night of getting America back on track—international law can help with that enormous task in a way no other resource can.

International law uniquely holds the key to securing peace, prosperity, respect for human rights, and protection of the natural environment for our nation and the world. The greatest challenges we face are global problems:

On the economy: President Obama made clear in London, we need the world; we need international financial regulation; we need an end to poverty suffered by a third of the world;

On peace and security: we need repression of terrorism; an end to Iranian and North Korean nuclear programs, an end to violent conflicts in Asia, Africa and the Middle East;

On human rights: we need respect for religious and cultural rights in China, protection for the people of Darfur, an end to human trafficking, and

On the environment: emergency action to save the world’s oceans, its last wild habitats, and, of course, the climate.

We are one world now as never before and for Americans to enjoy security, prosperity, human dignity, and a healthy environment means working so that all people enjoy them. Since the 1960s with our rise in power, prominent intellectuals have been telling our leaders that we are above international law. They have argued that we are exceptional and do not need international law’s tools or restraints. But by narrowly focusing on amassing military might, we have been failing to take full advantage of the wisdom and ways of international law.

This worldview reached its crescendo with the “torture memos”. Some of President Bush’s lawyers advised against respecting international law in important areas, such as defining combatants, interrogation, detention, targeted killing, the resort to armed force, and the conduct of military occupation. Following this advice lead our country into some of the gravest challenges we have ever faced.

Respecting international law was part of our founding and our tradition:
Abraham Lincoln commissioned the first codification of the law of land warfare. Theodore Roosevelt’s Secretary of State Elihu Root helped draft the treaty that established the International Court of Justice. Calvin Coolidge’s Secretary of State Frank Kellogg negotiated the first treaty-based prohibition on war as an instrument of foreign policy. Eleanor Roosevelt shepherded the Universal Declaration of Human Rights in 1948.

This is America’s tradition: leadership in international law. It is also the way forward.

But returning to this tradition may not be a simple matter given our declining expertise. President Obama has asked one of the leading experts on international law in the United States to take on the top international law job: Dean Harold Koh will give the President accurate advice on what international law requires and the advantages it offers our country and the world.

Mary Ellen O’Connell is Professor of International Law, University of Notre Dame. Her latest book is The Power and Purpose of International Law (OUP 2008).







Posted 8:10 AM by Guest Blogger [link]

Why Tax Deductions make our Economy Less Stable

Yair Listokin

Stabilizing the business cycle through fiscal policy is very much in vogue. President Obama’s stimulus package and budget proposal prescribe historic budget deficits in an effort to mitigate the impacts of the economic crisis. The goal is that government spending will replace the demand that vanished with the bursting of the credit and housing bubbles. With this backdrop in mind, I recently posted an article on SSRN entitled “Tax Expenditures and Business Cycle Fluctuations” that applies Keynesian insights on macroeconomic stabilization to the income tax code.


My article discusses a popular substitute for government spending—the “tax expenditure”. A tax expenditure is a provision in the tax code that provides a tax incentive for one type of spending rather than another. A noteworthy example of a tax expenditure is the deduction for spending on charitable contributions. If I spend my money on a hot dog, my taxes are unchanged. If I spend the same money on a charitable gift to a hot dog museum, however, my taxes go down. This gives me an incentive to donate to the hot dog museum rather than buy the hot dog. Instead of subsidizing the museum by reducing taxes on my charitable gift, the government could have given money to the museum directly. Interestingly, the total value of deductions, exclusions, and credits such as the charitable deduction nearly equals the value of direct government spending. (For more details and numbers, see the Tax Policy Center's fine discussion of tax expenditures.)


Unlike government spending, the article explains that tax expenditures amplify the business cycle. When times are flush, I give more money to the hot dog museum; the government's implicit subsidy to the museum in the form of taxes not collected out of my donation is high. When times are difficult, I reduce my donation; the government's implicit subsidy to the museum goes down. The government thus spends more money supporting the hot dog museum in good times than in bad-- exactly the opposite of Keynesian stabilization prescriptions. The effect holds true for almost all other tax expenditures; a tax expenditure means that the government's subsidy is greater in boom times than in busts. In a period where economic stabilization is a top priority, this destabilizing effect may justify a rethinking of our heavy reliance on tax expenditures rather than direct government spending.


The remainder of the article further develops the mechanism whereby tax expenditures amplify business cycles by changing tax payments. The article also discusses circumstances that make tax expenditures more or less destabilizing. To give just one example, a tax expenditure for an expense that is very sensitive to the economic cycle, such as vacations in Las Vegas, will be much more destabilizing to the economy than a similarly sized tax expenditure on a business cycle insensitive expense, such as food staples.


Posted 2:18 PM by Yair Listokin [link]

The OpenRedistricting Project

Heather K. Gerken

As Balkinization readers know, I've written a great deal about what I call the "here to there" problem -- small-bore institutional changes that would smooth the path for reform, making bigger and better reform possible. One of the areas I've focused on is redistricting. Below is an excellent idea from Travis Crum, a Yale student, who proposes another strategy for raising awareness of the problem and engaging citizens in the solution.

The OpenRedistricting Project

As America enters the 2010 redistricting cycle, change is the last thing on most politicians' minds. Despite judicial intervention, academic denouncements, and popular mobilization, the redistricting process remains plagued by two seemingly intractable problems. First, in many states, partisan actors control the commanding heights. Unless independent redistricting institutions are developed, partisan shenanigans will continue interfering in the process. Second, most voters are uninformed about redistricting. Complicating matters even further, these two problems reinforce one another. Politicians, motivated by incumbent protection and partisanship, have every incentive to keep their constituents in the dark.

Voter ignorance, however, stems from being shut out of the process, not apathy. Websites like Stimulus Watch and Wikileaks showcase how a committed core of citizen activists can utilize open source technology to make their government more responsive and transparent. Building off these success stories, my goal is to influence the redistricting process through one simple insight: democratizing redistricting technology will decentralize the decision-making process.

Or to put it in the parlance of our times: what better way to know a district than to draw it yourself?

The OpenRedistricting Project has two separate, but interdependent, components. The development of user-friendly, free redistricting software is a necessary step for bringing ordinary citizens into the process. Once that is completed, a social networking site dedicated to monitoring the 2010 redistricting cycle should be created. With these new platforms, the netroots will have a seat at the redistricting table.

Redistricting software, which currently costs several thousand dollars, is prohibitively expensive for average citizens, leaving decision-making in the hands of political professionals. Admittedly, some people are already working to solve this problem (see here and here). But these programs seek mathematical solutions for partisan gerrymandering. While this goal may be well-intentioned, it limits citizen involvement.

An ideal open source program would allow users to manipulate district lines using pre-programmed census data, demonstrating how simple shifts in boundaries can have profound impacts on a district's racial or partisan composition. Similar to for-profit programs, the open source software would use GIS technology, such as Google Earth, to display and compare proposals. For example, one could watch the South's transition from rotten boroughs in the 1960s to majority-minority districts in the 1980s and 1990s to coalition districts today. The program would permit users to experiment with their own preferences, as well as offer guidance in following redistricting requirements. Indeed, the Redistricting Game provides a useful -- albeit imaginary -- model.

This software would then be disseminated via a social networking site, allowing users to develop, share, and evaluate redistricting proposals. Based on sites like Digg and Wikipedia, this Redistricting Wiki would be user-driven and accommodate a wide range of interest and expertise. The Redistricting Wiki would permit anyone who could operate a Google Earth-style program to design their own districts. Site administrators would post every state redistricting proposal and invite interested groups, such as the NAACP, to submit their own schemes.

Speaking hypothetically, the homepage would display a "State of the Day" and rank plans according to an algorithm, factoring in compliance with redistricting criteria, user-generated rankings, a plan's number of views, etc. A user could sort the plans by various criteria, such as competitiveness or compactness. Moving from passive to active participant, a user could develop a plan from scratch or manipulate an existing one. Next, the user decides whether to submit their plan for public display and scrutiny. Other users could then critique the plan and give it a ranking. Repeating this process enough times would clear out gerrymandering’s smoke-filled rooms and bring the wisdom of crowds to the process.

This platform would be a profound step in educating voters about redistricting. A centralized hub for the nation's redistricting information would transcend the inherent localism of the decennial process, showing citizens where their state's redistricting plan falls in a nationwide ranking. Similar to election night coverage, television broadcasters could use this program to explain redistricting to viewers, generating even greater interest in the site. Moreover, CNN's successful embrace of Twitter and Facebook evidences ordinary citizens' desire to express their political views on social networking sites.

The OpenRedistricting Project would also strengthen good governance institutions. While Heather Gerken's shadow redistricting commissions and Sam Hirsch's redistricting contests are solid ideas, they run the risk of being controlled by elites. Social networking sites, however, assemble unprecedented numbers of participants in a decentralized decision-making process. Posting on the Redistricting Wiki would enhance a commission's legitimacy, linking its findings and conclusions to a broad popular base. In turn, commissions could provide much needed leadership, publicity, and funding in the early stages of the project.

The dynamic collaboration between shadow commissions and the OpenRedistricting Project would go far beyond comparing proposals. A blog or message board would create a forum for citizens to speak out about their state's redistricting process. Mock elections would be held between competing plans. Contests, with or without prize money, would challenge people to design a redistricting scheme that best achieved a certain objective. If politicians are tweeting during a presidential address to Congress, imagine the additional exposure the redistricting process would receive.

Although this may seem fanciful at the moment, remember that Wikipedia was inconceivable as recently as the last redistricting cycle. Whether run by a major law firm or a group of college friends, social networking sites are revolutionizing the way information is distributed and consumed. While the dearth of freely available partisan data poses a problem for this technology, the very existence of the site could instigate the citizen mobilization needed to convince state and local governments to gather and/or release this information. Additionally, the Redistricting Wiki could create an army of free labor to refine the open source software using Google Code or SourceForge, sustaining the project into the 2020 cycle.

The OpenRedistricting Project won't destroy gerrymanders, but it may create something to fight them: wikimanders.

Travis Crum, Class of 2011, Yale Law School

Posted 2:18 PM by Heather K. Gerken [link]

Holding Koh and Johnsen Hostage to a Cover Up of Torture

JB

Over at the Daily Beast Scott Horton tells us that behind the fierce Republican opposition to the the Koh and Johnsen nominations is a desire to prevent the Obama Administration from revealing key torture memos.

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

The interesting question is why Republican senators are so deeply threatened by the additional confirmation that the United States engaged in torture. It cannot be diplomatic embarrassment about the names of the countries that cooperated; these can be redacted. It cannot be the revelation of particular techniques; these have been thoroughly vetted in the press in the past several years.

The real resistance, it appears, is to the public disclosure of an official government document approving specific techniques that amount to torture. This degree of specificity and the government's request for approval of specific techniques does not appear in the original torture memos already released to the public. It is one thing to read a memo reading the torture statute ridiculously narrowly; it is another to read a memo stating that the OLC has been asked whether techniques X, Y, and Z violate the criminal law and reaching the conclusion that the law permits them or else the law is unconstitutional. Reading such memos brings us much closer to a specific government order to engage in torture.

Perhaps Senate Republicans and their allies they fear that, if such documents ever came to light, pressure for public investigations-- including a truth commission-- and even the appointment of a non-partisan special prosecutor to investigate possible criminal prosecutions would become inevitable.

Who would be implicated in these investigations is an interesting question. I doubt that it would solely be limited to Republican politicians. Many important and influential people would no doubt be discomfited by the launching of an investigation that actually named names.

There is no guarantee that the release of these documents will strongly shift public attitudes about investigations. Perhaps nothing will come of it; perhaps the public will be far too distracted by the economic crisis to demand further investigation. But apparently well-informed people do not wish to take that risk.

As soon as these investigations began, many politicians who now are trying to prevent release of these torture memos would feel compelled to pick sides. They could continue to denounce any investigations, no matter how deserved, as partisan witch hunts. But this would be far more difficult to do once these documents are available for the public to read and are widely reported by the press. Or, they might feel compelled, in order to protect their own political futures, to pile on and denounce people they have been shielding for so long. They too, will be shocked, shocked to discover that torture has been going on.

One thing is clear. Astute politicians must have judged that the disclosure of these torture memos may significantly change the stakes of politics. They fear that these memos will have a powerful effect on public opinion.

That, however, is another reason not to give into this form of political blackmail against Koh and Johnsen and release the memos immediately. Once these documents are released, it will be harder to keep out of government people who have condemned torture and illegality for a very long time.

Posted 7:53 AM by JB [link]

Lying about Dawn Johnsen

Andrew Koppelman

Dawn Johnsen, President Obama’s nominee to head the Office of Legal Counsel, has been accused of misrepresenting a position she took in litigation, and I have been cited as authority against Prof. Johnsen. On this basis, Republican senators are considering a filibuster against the nomination.

The accusation is false, and the reliance on my writings distorts what I wrote. Yesterday I faxed a letter to Senator Arlen Specter, who has indicated that he is troubled by these accusations, to set the record straight.

Here is my letter to Senator Specter:


The Honorable Arlen Specter
United States Senate
711 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Specter,

It has come to my attention that a footnote in my article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Northwestern U. L. Rev. 480 (1990), has been cited for the proposition that the brief that Dawn Johnsen wrote in Webster v. Reproductive Health Services claims that the Thirteenth Amendment guarantees a woman’s right to abortion. The Webster brief to which my article referred, however, was not the brief submitted by Dawn Johnsen but was an entirely different brief.

The footnote in question, note 24 on p. 484, cites a brief in Webster, filed by the California National Organization of Women and other organizations, and notes that this is an updated and revised version of a similar brief filed by California NOW in Roe v. Wade.

In my article, I argue that “[w]hen women are compelled to carry and bear children, they are subjected to ‘involuntary servitude’ in violation of the thirteenth amendment.” Id. at 484. In the footnote, I observe that “[t]his argument was raised by an amicus brief in Roe,” and goes on to note that a “revised and updated version” of this brief – the California NOW brief – was filed in Webster. Id. at 484 n.24. The Roe brief makes an argument very similar to mine, relying on similar precedents; I quote it a few more times later in the article. See id. at 489, 493.

While she was chief counsel of the National Abortion Rights Action League, Professor Johnsen submitted an amicus brief in Webster on behalf of “Seventy-Seven Organizations Committed to Women’s Equality.” The brief argues that the state restrictions at issue in the case violate the Fourteenth Amendment’s protection of individual liberty. There is one footnote in the brief, note 23, which states:

While a woman might choose to bear children gladly and voluntarily, statutes that curtail her abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state's asserted interest. Indeed, the actual process of delivery demands work of the most intense and physical kind: labor of 12 or more grueling hours of contractions is not uncommon.

To say that one thing is “disturbingly suggestive” of another is hardly the same as saying that it is identical to that other thing. Johnsen makes this point to support her Fourteenth Amendment claim, by showing the serious nature of the liberty interest that is at stake. The brief does not argue that the state laws violate the Thirteenth Amendment. This is the only time the Thirteenth Amendment is ever mentioned in her Webster brief.

Nowhere in my article do I cite, much less discuss, the brief written by Johnsen. I was fully aware of Johnsen’s brief when I wrote my article, but decided not to mention it because, unlike the California NOW brief, her brief does not make or endorse a Thirteenth Amendment argument.

Sincerely,

Andrew Koppelman

Cc:

The Honorable Patrick Leahy
United States Senate
433 Russell Senate Office Building
Washington, D.C. 20510

When questioned about the brief, Prof. Johnsen correctly denied ever making a Thirteenth Amendment argument. This led many writers in the blogosphere, most prominently columnist Andy McCarthy at National Review Online, to repeatedly accuse her of misrepresenting her position. These claims are recklessly irresponsible. Prof. Johnsen is being libeled.

I can’t resist mentioning that while all of these writers cast scorn on the Thirteenth Amendment argument – McCarthy calls it “jaw-dropping” and “farcical,” but his analysis does not proceed beyond the exuberant application of adjectives – none of them has explained why the argument is unpersuasive. I recently did a search of every scholarly discussion of the argument since I published it nearly 20 years ago, and no one has ever made a serious attempt to answer it. (You can judge for yourself. I won’t elaborate the argument now, but the original article is here.)

The argument does repel many people, so much that they have trouble taking it seriously. They take it to be a libel on motherhood, which far from being like slavery is an exhilarating, awe-inspiring and joyous experience. The objection gathers whatever force it has by focusing on the experience of women who want to be mothers. But the Thirteenth Amendment doesn't apply to them. The servitude it is concerned with is involuntary. The distinction between wanted and unwanted pregnancy is like the difference between wanted and unwanted sex. Can rape be defended on the grounds that sex is an exhilarating, awe-inspiring, joyous experience? Are arguments that focus on the degrading and violative aspects of rape a libel on sex? Plantation slavery cannot be justified on the grounds that many people find gardening deeply satisfying.

Posted 3:57 PM by Andrew Koppelman [link]

More on Sen. Gillibrand (and evaluating actions)

Sandy Levinson

The following letter appears in today's New York Times:

Gillibrand Defended the Unpopular. So Did Adams.

To the Editor:

Re “As New Lawyer, Senator Defended Big Tobacco” (front page, March 27):

Senator Kirsten E. Gillibrand of New York should be lauded, not criticized, for her representation of an unpopular client.

One of the great traditions of American law, dating at least from the time John Adams represented the British soldiers accused in the Boston Massacre, is that our best lawyers represent the despised and unpopular, particularly those accused of or investigated for alleged crimes.

Had these lawyers, in consideration of their political futures, chosen not to represent such people or entities, we Americans would not have many of the liberties we cherish.

Lawrence S. Goldman

New York, March 27, 2009

The writer is a former president of the National Association of Criminal Defense Lawyers.

Were I still teaching courses on the legal profession and professional responsibility, as I did over a period of twenty years, I would be tempted to use this for a final exam and ask students whether the analogy between John Adams and Kirsten Gillibrand is really cogent. I obviously think it is not, beginning with the fact that John Adams was genuinely putting his career at stake in doing the right thing by representing Major Preston. Ditto for Atticus Finch and other models of lawyers who stand up to represent vulnerable people against the potential loss of liberty. But what in the world does this have to do with a young, ambitious lawyer who self-consciously decides to cast her lot with the tobacco industry and to make lots of money and prepare herself for a fast-track partnership, should she have wanted to remain in private practice, by using her skills to help it continue to induce addiction and death in millions of people around the world?

I am curious whether Mr. Goldman or other defenders of Ms. Gillibrand would wish to "laud" her by presenting her the (hypothetical) "John Adams Award" given to those lawyers who provide exemplary models of lawyering. Should we invite her to our law schools and parade her before our students as an example of a well-lived life in the law? Indeed, should we admire Carl Schmitt for using his formidable legal talents to defend the Nazi takeover of the Prussian government in 1933 because, after all, we can never judge lawyers on the basis of the causes they commit themselves to in their role as lawyers?

Note that I certainly believe that all of the alleged war crminals at Nuremberg deserved vigorous defenses, and this would have applied to Hitler as well, had he lived. I also have no objection to Bernard Madoff receiving first-rate representation in defending himself against the criminal charges. But is that really the issue we're discussing? Would we be as eager to defend a Madoff lawyer who energentically did everything he/she could to sidetrack any SEC inquiries and the like, precisely in order to prevent discovery of the Ponzi scheme, especially if the lawyer, like Gillibrand, was fully aware of the "questionable" activities engaged in by the client? Are we to applaud the "Rambo litigator" so long as he/she doesn't move on to killing witnesses and the like? And so on.

Incidentally, should we be as reluctant to engage in any evaluation of lobbyists as Mr. Goldman would have us be of lawyers? After all, lobbyists do fulfill an important First Amendment function by effectively "petitioning" legislators for "redress of grievances." This is one of the reasons I am generally reluctant to support some of the restrictions on lobbying and oppose aspects of the McCain-Feingold bill. But does this mean that I must admire equally the lobbyists for the tobacco industry and those who work for the American Cancer Society?

Frankly, I hope that Mr. Goldman was a better lawyer when defending his allegedly-criminal clients than when defending Sen. Gillibrand. It will be interesting to see if a future edition of the Times will include letters from other criminal defense attorneys disassociating themselves from the "defense" offered of Sen. Gillibrand.


Posted 11:59 AM by Sandy Levinson [link] (44) comments

Reforming the Senate

Sandy Levinson

A respondent to my previous post criticizing the Senate for its dysfunctionality re the confirmation process asks the entirely fair question as to who should make rules for the House and the Senate (other than themselves). I have no easy answer. What we can say with some confidence is that the Senate has stumbled into a set of rules, over the years, that, I (and not only I) believe, seriously disserve the country. One can "explain" the rules in terms of social choice theory. Each senator, for example, wants to hold on to the institution of the "hold" in case he/she wants to exercise that power some day, regardless of the costs to the public in making even more difficult the nomination and confirmation of public officials. Or senators elected as "reformers" are quickly told that they will be punished, in a variety of ways, if they really take on the "way we do things around here." Or one can simply think of a good organizational reason to explain why the Senate persists in using a substantively insane--no other word will do--rule of seniority to name the president pro tem of the Senate, who is third in line for the presidency. Consider that two of the most recent inhabitants of that august office have been Strom Thurmond and Robert Byrd. (I think that Ted Stevens was President pro tem up to 2007.) I freely concede that it would simply be organizationally disruptive for senators to have to decide, and indicate publicly, their colleague most equipped to become president if catastrophe strikes. (But, of course, catastrophe will never strike, so we can behave like children.) And so on.

But, alas, piling on the justified criticisms doesn't answer the question as to how reform of an institution, however dysfunctional, should actually take place--i.e., who's in charge? I'm not really a fan of courts doing it, for example. So this is yet one more reason why I want a two-year-long constitutional convention that has the time to think seriously about such issues, since the Senate has neither the time nor the inclination to do so. I'm not critical of them for not having the time. One of the problems is that the Senate, which includes a lot of capable individuals, is simply overwhelmed with issues, plus, of course, the necessity to keep raising funds for the next election. What they might do is appoint a national commission, chaired by Norman Ornstein and Thomas Mann and including people like Lee Hamilton and James Baker, to address very seriously the problems presented by "transition" in our particular form of government (though I'd still prefer a constitutional convention).



Posted 11:58 AM by Sandy Levinson [link] (39) comments

Defending Dean Koh

Guest Blogger

Kenji Yoshino

I write to address three criticisms recently directed at Dean Harold Koh following the announcement that President Obama had nominated him for the post of Legal Adviser to the Secretary of State. (In the interests of disclosure, I was a former colleague of Dean Koh’s for ten years at Yale Law School.) Ordinarily, I would not dignify criticisms so wildly off the mark with a response. But the high uptake these criticisms have already received suggest not only that they will be taken seriously, but that they have a seriously appealing hidden barb.


The criticisms are nicely summarized by former Bush speech writer Meghan Clyne in the March 30 issue of the New York Post, though Ms. Clyne is certainly not the only person to make them. According to Clyne, Koh believes that (1) “Sharia law could apply to disputes in U.S. courts;” (2) “The United States constitutes an ‘axis of disobedience’ along with North Korea and Saddam-era Iraq;” and that (3) “Judges should interpret the Constitution according to other nations’ legal ‘norms.’”

The criticism that Koh believes sharia law could be applied by U.S. courts is false. This allegation was made by New York attorney Steven Stein, who asked Koh during a speech made to the Yale Club of Greenwich in 2007 whether Islamic law could apply to disputes in U.S. courts. Stein alleges that Koh stated that in some cases it could. The host of the event, however, categorically denies that Koh made any such statement. Indeed, she wrote a missive to the Post requesting a correction, to which the Post has not yet responded. Meanwhile, the damage has been done—a Google search for “Harold Koh and sharia” turns up over a thousand hits only one day after the article’s publication. It is telling that a contested allegation at a social club would make more headlines than the eight books Koh has written or edited.

The criticism that Koh believes that the United States, alongside North Korea and Iraq, is part of an “axis of disobedience” to international law, is equally off base. The quotation comes from a 2004 article, in which Koh argued that if the United States does not live up to its human rights obligations, it will have a harder time enforcing those obligations on other nations. Secretary of State Dean Acheson made this argument during the Cold War—an argument many historians believe contributed to Brown v. Board of Education. Koh’s point is not that we are morally equivalent to such countries as Iraq and North Korea, but that if we shortsightedly violate international law, we undermine our own capacity to persuade gross violators to improve their compliance records.

The criticism that Koh believes that judges should interpret the Constitution according to other nations’ legal norms is also misleading. If one looks at Koh’s work as a whole—not just the eight books but the over 175 articles he has written—the idea that the United States Constitution is the “supreme law of the land” is its absolute bedrock. What Koh argues is that our world is already so interdependent that the legal practices of other countries can provide a means of reflecting on our domestic ones. His claims are about how the United States Constitution might absorb the norms of other traditions, not how it might be absorbed by them. Koh’s approach is not radical, but just a twenty-first century version of what the authors of the Declaration of Independence called according a “decent respect to the opinions of mankind.”

What troubles me about these false or misleading criticisms is not just that they have been broadly purveyed by FOX News and other outlets to individuals who may not have the time or inclination to ascertain the truth. It is also that all three appear to be part of one broader unspoken criticism. This master criticism is that Koh, a Korean-American from a remarkably successful immigrant family, is somehow too disloyal to American interests to serve his country.

I am not playing the race card on Koh’s behalf here, though it is certainly true that Asian-Americans have a history of being treated simultaneously as “honorary whites” and “perpetual foreigners.” I am simply pointing out the President’s opponents are playing the fear card in a time of national stress. Why else would such baseless criticisms be directed against the Dean and chaired professor of one of the top law schools in the country, who is one of the most distinguished international lawyers of his generation, and who has already served his government to bipartisan acclaim after a unanimous confirmation? We owe it to Koh, and to ourselves as a nation, to raise the level of discourse around this round of hearings.

Kenji Yoshino is Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law

Posted 9:55 AM by Guest Blogger [link]