Judicial elections

Sandy Levinson

So what should right- (or left-)minded people think of elected judiciaries? The conventional wisdom among traditional elites is "not much." They politicize a process that should, ideally, be devoted to discovering and then placing on the bench the "best men and women" who will perform the tasks of judging in a suitably non-political manner. The problem, of course, is that there's no reason at all to believe that turning appointment over to presidents or governors "depoliticizes" the process, though it might make it more opaque. Consider Sandra Day O'Connor, currently leading a national campaign against elected judiciaries. At an Aspen gathering almost two years ago, during which I moderated a panel that she and Justice Stephen Breyer were on, she forthrightly introduced herself by telling the story of her own nomination: Ronald Reagan wanted to name a woman, and he tasked William French Smith, his first Attorney General, to find a "Republican woman" who might be qualified for the Supreme Court. As a matter of fact, as of 1981, the list wasn't very long, and she emerged at the top of it. Perhaps one could have a less "political" judicial selection process by, say, requiring 2/3 votes for confirmation or by turning appointment over to "non-partisan commissions" (though how exactly would they be selected, and what does "non-partisanship" mean, exactly). But as between unfettered executive branch selection (even with Senate confirmation) and elections, I think it's a closer call than many people concede. I warmly recommend a forthcoming book by Harvard legal historian Jed Shugerman, The People's Courts: The Rise of Judicial Elections and the Judicial Power in America (Harvard U. Press), which notes that the "Barnburners," at the 1846 constitutional convention in New York, fought for judicial elections precisely to clip the power of New York governors and his legislative cronies to place their supporters on the bench, where they would simply rubberstamp their patrons policies. Judicial elections were viewed as a way of reinforcing judicial independence and, indeed, judicial supremacy vis-a-vis legislatures and executives inclined to push the envelope.

Now, for good reason, we are well aware of a lot of less desirable features of judicial elections, but I still find it a genuinely debatable issue. All of this is by way of congratulating the (bare) majority of Wisconsin voters, who appear to have voted out of office a distinctly conservative Republican judge in favor of a Democratic replacement. It was a bit of truly good news for many of us, and I presume that it must put the fear of God (or at least an aroused electorate) in the calculations of many otherwise supine Republicans. It's really quite nonsensical for Republicans to take pleasure in the fact that Prosser was able to achieve basically a tie vote, inasmuch as he was initially favored to win in a walk, as a long-time incumbent, running in ostensibly non-partisan elections, against what appears to be a somewhat less than overwhelmingly impressive Democratic opponent. I'm not sure how truly interesting next year's presidential election will be, because at this moment it remains impossible to identify a Republican candidate (other than David Petraeus) who might actually beat Obama. But there will be a host of absolutely riveting elections down the ballot, including recall elections and, for the cognescenti, the option in Ohio for voters to call a new state constitutional convention.

One of the things this demonstrates, of course, is how truly different (and more democratic) almost all state constitutions are than the national Constitution, the least democratic of America's 51 constitutions. Maybe this is good, maybe not, but it certainly gives rise to such events as yesterday's important face-off in Wisconsin,, and, at this moment at least, I find it hard to argue that that is not a good thing. Less good, from my perspective, was the firing of three capable Iowa judges because they joined in the same-sex marriage decision in the Iowa Supreme Court, but, of course, there are no perfect constitutions, and one has to make "all things considered" calcuations about what systems are preferable.
Posted 10:18 PM by Sandy Levinson [link] (56) comments

Fed & OCC vs. Transparency

Frank Pasquale

The Obama Administration has been no great friend of transparency, as Danielle Citron, David Levine, and Glenn Greenwald have shown. Obama paradoxically "accepted [a] 'transparency' award [last week] in a closed, undisclosed meeting at the White House."

Unfortunately, secrecy has also been a troubling practice at the Fed and other financial regulators over the past few years. As Gretchen Morgenson has noted,

In August 2007, as world financial markets were seizing up, domestic and foreign banks began lining up for cash from the Federal Reserve Bank of New York. . . . Thus began the bank run that set off the financial crisis of 2008. But unlike other bank runs, this one was invisible to most Americans. Until last week, that is, when the Fed pulled back the curtain. Responding to a court ruling, it made public thousands of pages of confidential lending documents from the crisis. The data dump arose from a lawsuit initiated by Mark Pittman, a reporter at Bloomberg News, who died in November 2009. Upon receiving his request for details on the central bank’s lending, the Fed argued that the public had no right to know. The courts disagreed.

It's not just the Fed that's been opaque. I've previously discussed the Office of the Comptroller of the Currency here and here. Given those accounts, it's no surprise that the agency continues to serve, rather than police, big banks. The Maryland Commissioner of Financial Regulation has testified that OCC "forbade national banks from providing loss mitigation data to the states." Matt Stoller explains the significance of that decision. Without loss mitigation data, regulators found it difficult to detect and deter loan modifications that hurt struggling homeowners. Once reported, officials like Kaufman could identify the practices that led to redefaults. As Stoller explains:
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Posted 6:39 PM by Frank Pasquale [link]

Fareed Zakaria connects the dots!!

Sandy Levinson

Fareed Zakaria has indeed connected the dots in a remarkable essay in Time. We finally have a major-league pundit who is willing to criticize our 18th century Constitution. As we prepare for a government breakdown and the potential collapse of the world financial market should House Republicans refuse to increase the debt limit, will others join him in recognizing that the Constitution, in all too many ways, is comparable to the Articles of Confederation in terms of the dysfunctional political system it has helped (even if, surely, not solely caused) bring about? Or will we settle for almost pointless denunciations, depending on one's political views, of President Obama, John Boehner, Mitch McConnell, etc. (Perhaps I should refrain from blaming "House Republicans" for threatening financial collapse, since a better-designed political system might have saved us from being held hostage by political and economic lunatics. I see no particular point in opening this short rant to comments. When I offer a more truly substantial argument, I will happily receive comments. The most important thing is to encourage everyonen to read Mr. Zakaria and to reflect on the rather dismal picture he paints of the present United States.
Posted 5:25 PM by Sandy Levinson [link]

More Constitutional Liability Rules

Gerard N. Magliocca

(Cross-posted at Concurring Opinions)

Last week I did a series of posts about "constitutional liability rules." The upshot is that sometimes the best way to design relationships between or among institutions is to allow one of them to exercise a right but face a penalty if it does. This can be, though is not always, better than allowing one body to issue a direct command that another must obey. That may be because it is easier to get political agreement on a liability rule, because a liability rule is more protective of institutional rights than a command but facilitates action more than a property rule (giving an institution an unfettered choice), or because an organ possesses some kind of veto that cannot be overridden by a command without massive costs. Here are some examples from my prior posts:

1. The Spending Clause and the "anti-commandeering/sovereign immunity" cases (Congress cannot order the states or state officials to do certain things, but they can impose costs on them if they do not.)

2. Section Two of the Fourteenth Amendment (A state could discriminate on the basis of race in voting, but if it did its representation in the Electoral College and the House of Representatives would be reduced).

3. Lords-packing in 1832 and 1911 (The House of Lords could reject crucial legislation, but if it did so its voting power would be diluted.) See also Court-packing in 1937.

4. Congress's threat to impose an economic embargo on Rhode Island in 1790 because it refused to ratify the Constitution (Rhode Island could continue to hold out, but would pay a cost).

5. The ratification of the Fourteenth Amendment in the South (A state could reject the Amendment, but if it did then it would remain under military occupation). See also the Treaty of New Echota, basically presenting the same choice to the Cherokee Nation if it refused to accept removal to the West.

Now I want to explore two more examples--the Direct Tax Clause and the Equal Protection Clause.

The Direct Tax Clause is an example of a constitutional liability rule that is in the text. The purpose of the Clause was to prevent the taxation of slaves by Congress (though it covers more than that). Now the Framers could have just prohibited such a tax, but they did not. Instead, they established a rule that made states without slaves pay if a tax was imposed on slaves by providing that the revenue collected had to be apportioned among states according to their respective populations.

The more intriguing example is the Equal Protection Clause. You can find language from the Court (most notably from Robert H. Jackson and Antonin Scalia) explaining that the requirement that laws be of general application makes it less likely than unpopular or pernicious policies will be enacted. In other words, there are instances in which we will allow Congress (or state legislatures) to pass certain statutes but we make that more costly from a political standpoint through a constitutional rule of equality.

That leads to this question: Can we derive an interpretive principle from that idea? Suppose we said that courts should invalidate a statute on equal protection grounds when they thought that such a law passed only because it was not applied generally. This obviously does not cover all of the situations in which the EPC applies ("separate-but-equal" covers everyone, but that doesn't make it lawful), but it is worth considering further.
Posted 9:08 AM by Gerard N. Magliocca [link]

Neoliberalism and Punishment Theory

Bernard E. Harcourt

Thanks to Jeremy Kaplan-Lyman and Trevor Stutz, we had a fascinating workshop at Yale Law School last Thursday March 31st on the topic “Theorizing Punishment: From Mass Incarceration to the Death Penalty” along with David Garland from NYU and James Whitman and Tracey Meares from Yale Law School. David Garland and I got into a heated argument about the role of neoliberalism in punishment which was extremely productive, in my opinion, especially in clarifying the central argument of my book, The Illusion of Free Markets: Punishment and the Myth of Natural Order.

David Garland projected onto my book, incorrectly, a simplistic story about neoliberalism. Garland suggested that the book argues that mass incarceration can be explained, in his words, “as a function of the effect of neoliberal policies;” or, in other words, that it is the privatization of prisons and the application of neoliberal cost-benefit analyses that fueled prison expansion over the last 40 years. Garland then argued that this cannot be the case because mass incarceration is, again in his words, “an affront to neoliberal principles” of cost efficiency; and he suggested, to my great surprise, that neoliberal principles “may be an antidote” to the problems of mass incarceration.

Garland clearly has the argument of the book wrong, but his error is productive and reflects a common misperception about the role of neoliberalism in punishment theory more generally. His second argument (that neoliberalism "may be an antidote") reflects a fundamental misunderstanding about neoliberalism (reflected as well in many of the comments here) that is also enlightening. Clarifying these multiple errors may be a step forward in the debate, so I thought I would give it a try.
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Posted 8:28 PM by Bernard E. Harcourt [link]

Economic Policy for the Worried Wealthy

Frank Pasquale

Why is the austerity movement so powerful in the US? Many people are hurting, and corporate, CEO, and finance sector gains since 2008 have been enormous. Why not expect a little more from the wealthy? Why are states from Arizona to New York going after poor Medicaid patients and schools instead? We know the economic case for austerity in a deep recession is bunk. Why its enduring appeal?

Perhaps voters have lost faith in the ability of the state to do anything competently, including redistribution. The always-insightful Elisabeth Young-Bruehl suggests as much, noting:

[Americans] have been led to believe that their well-being and their democracy depend upon the success of capitalism, with its limitless growth ideology; but this very capitalism is taking over their state. They have been promised that if America has a strong, competitive, innovative economy, the benefit of that will trickle down to all, just as Ronald Reagan promised it would. Even Barack Obama speaks this language. But it is becoming obvious that there is not going to be any trickle down. . . . [The system] is a closed loop, which is not designed to trickle anything much down to support those who are not in the loop[.]

As plutonomy advances, buying power is being segregated by the very wealthy into closed circuits of spending and investment. Young-Bruehl makes a similar case about political power in a post-Citizens United world. As Martin Gilens has shown, in the US, "actual policy outcomes strongly reflect the preferences of the most affluent but bear virtually no relationship to the preferences of poor or middle income Americans."

Yet that still leaves a puzzle. The wealthy in the US may have extraordinary influence over the political process, but they could use it in many different ways. Warren Buffett complained about being taxed less than his secretary, and Bill Gates's father has fought for the estate tax. Progressive thinkers like Bruce Judson, Robert Reich, and David Callahan have all hoped for the rise of a conscientious superclass. At some point the marginal value of money diminishes; why not spread it around a bit?

Anxious at the Top

I think Reich, Callahan, and Judson have failed to take into account the enduring anxietes of of America's rich. Consider two studies, and an anecdote, reflecting worry at the top of the income scale:
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Posted 3:47 PM by Frank Pasquale [link]

Constitutional Liability Rules -- Part IV

Gerard N. Magliocca

This is the final post in a series about what I am calling "constitutional liability rules." The idea is that in certain situations the best design involves allowing government institutions to retain their right to act but imposing a penalty on them if they do. We see that with the Spending Clause and other textual provisions (e.g., the Direct Tax Clause), and we see that in the historical examples that my prior posts described. The obvious question is whether there is any room for this concept to expand. (I should add that there are portions of the text where the Framers anticipated and rejected this option, most notably in the provisions barring Congress from reducing the salaries of judges or the President.)

One thought is that the Article Five process could be streamlined (for those who think that ratifying amendments in the states is too difficult) by adopting a practice whereby Congress would declare after passing an amendment by the requisite two-thirds that states will suffer an appropriations penalty of some sort if they refuse to sign up. This would be a reasonable workaround because the states would retain their right to veto a textual amendment but only if they felt that the expression of national will in Congress was totally misplaced. There may be others, but I'm not sure. That is why this is a work-in-progress.
Posted 11:46 AM by Gerard N. Magliocca [link]

The Hugo Black Lecture, Part V

JB

[On March 23, 2011, I delivered the 20th annual Hugo L. Black lecture on freedom of expression at Wesleyan University. I'm publishing the prepared text of the lecture in installments this week on Balkinization. Part One, Part Two, and Part Three, and Part Four have already appeared.]

VII. The Difference Infrastructure Makes

The story of Wikileaks, like the story of the Egyptian protests, is about the infrastructure of free expression and how it helps or hinders the activities of democracy.

The government did not seek an injunction against Wikileaks largely because the digital infrastructure makes it futile. Assange did not have to rely on the facilities of a major newspaper to publish his revelations. He created mirror sites in multiple countries around the world that made it impossible to block all of his copies. He worked with newspapers for a different reason: to give himself political cover.

Professor Benkler has pointed out another important feature of the new digital infrastructure: Once the leaker (we assume Private Manning) uploaded the materials on the Wikileaks website, Assange could not be co-opted in the same way that traditional media organizations could. Assange picked newspapers in different countries and promised them a scoop in their counties in return for helping him sort through the materials. Because the papers knew that someone else in their country would get the scoop if they refused, they had incentives to cooperate. And because Assange worked with multiple newspapers in different countries, his disclosures would not be prevented if one or two of them were coopted by their governments.
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Posted 11:05 AM by JB [link]