It's Alito

JB

The Washington Post reports.

In nominating Alito, Bush balanced two different goals: making his conservative base happy and not angering moderate Republicans too much, thus keeping his 55 votes in the Senate together and making it more difficult for Democrats to make a credible threat to filibuster.

No doubt many Democrats will oppose this nomination, because Alito appears to be a critic of Roe v. Wade. At the same time, Alito has excellent credentials. And, unlike Harriet Miers he is also not a crony of Bush. Unless the hearings uncover a significant scandal, or demonstrate Alito's positions are far more extreme than the available information indicates, the record of past Senate votes suggest that he has a good chance of being confirmed.

Unlike Miers, Alito is not a stealth nominee. He has been on the bench for many years. He is a known commodity with good credentials and considerable experience. He has not been as high profile or controversial as someone like Michael Luttig (who would more likely have produced a filibuster) but he is generally thought to be solid and reliably conservative.

Such a pick, if successful, will do much to reconcile movement conservatives to President Bush. That, of course, is precisely what Bush had in mind. He wanted a nominee who would get movement conservatives back on his side and who he could get through the Senate. No doubt Alito will produce a fight over ideology and constitutional interpretation, but it is a fight that Bush calculates he can win. Having such a fight, and winning it, gives him the best of both worlds: a successful nomination of a conservative to the Supreme Court and an opportunity for movement conservatives to make their case about what the Constitution should mean.

Posted 7:11 AM by JB [link] (5) comments

Don't talk to me about Superprecedents

JB

Jeff Rosen's essay in the New York Times recounts the ongoing debate about whether Roe v. Wade is a "superprecedent." The term seems to come from a Michael Luttig opinion, referring to Roe as "super stare decisis," which I have argued here is part of a emerging conservative take on Roe. The basic idea is that mainstream conservatives will accept that Roe is settled (as modified by Casey) but begin to chip away at it over the long haul.

The expression "superprecedent" is highly misleading, because it confuses several different things we could say about a precedent, and several different reasons why the precedent is (or should be) safe from overruling.

(1) People have tried repeatedly to reverse a particular precedent, and fought long and hard for many years, but were rebuffed repeatedly in the courts. As a result, although they think the precedent is wrongly decided, they accept it as settled law. They will attempt in future litigation to get the courts to read it narrowly but will cease trying to overturn it directly. This conception of "superprecedent" means nothing more than that a struggle over constitutional meaning has been settled in practice. It does not mean that everyone accepts the precedent wholeheartedly or unreservedly or believes that it has "legs," i.e, that it should be extended generously to other situations or expanded in the same way as precedents that are clearly correct expressions of the Constitution. Former opponents will continue to read it narrowly; they will simply cease to demand that it be overruled.

(2) A particular precedent is foundational in the sense that an enormous amount of subsequent law depends on its correctness, and if the precedent were overturned, this would have significant ripple effects in doctrine. It would be very difficult to preserve large amounts of existing doctrine and this would be a bad thing. It would cause a great deal of useful law to be greatly unsettled, undermining a wide range of doctrines that people have relied on for many years. This conception of "superprecedent" analogizes the precedent to a support beam in a house that, even if not installed correctly or in the right place, cannot now be removed without seriously endangering the safety of the occupants. The first conception, by contrast, might apply to a precedent that isn't all that crucial to lots of other areas of doctrine, and that is one reason why its opponents are willing (grudingly, to be sure) to accept it as settled.

(3) A particular precedent which was at one point highly controversial is now widely agreed to be a foundational and highly admirable articulation of constitutional values. Someone who doubts its correctness has taken themselves out of the mainstream of constitutional discourse. This reflects the fact that constitutional arguments proceed over long periods of time and sometimes, on reflection, people at a later time come to form a consensus that a particular interpretation of the Constitution is correct, so correct, that it has come to form a basic postulate of constitutional argument. Because the precedent is important in precisely this way, few people hesitate to read it broadly (from their perspective). Indeed, people build large theoretical edifices around the precedent and fight continously over who best understands its true meaning and deepest ramifications. Indeed, people tend to think that an argument is bolstered if it is consistent with or builds on this precedent, and, conversely, they tend to think that their opponents' arguments are undermined or refuted if they cannot explain or justify the precedent.

These three possible cases describe precedents that Sanford Levinson and I would call part of the constitutional canon, but they are canonical for different reasons, because they are (1) the result of a protracted struggle where one side has given up (at least for the time being); (2) essential to preserving a large body of law that is (at least in part) valuable for other reasons; and (3) a widely recognized exemplar of how to do constitutional interpretation correctly, which helps define who is in the mainstream and who is "off the wall."

It should be obvious that Brown v. Board of Education falls into all three categories. Roe v. Wade, on the other hand, falls into at most categories (1) and (2), and probably only category (1). One way to see this (surely not the only way) is by thinking about Roe's place in contemporary legal culture. Ask yourself whether a substantial number of lawyers, judges, and legal academics continue to think Roe was wrongly decided, and whether a substantial number believe that it should be read as narrowly as possible in future cases. If the answer to these questions is yes, then Roe does not fall into category (3), as a paragon or exemplar of good constitutional interpretation. And if it can be read very narrowly without doing much harm to the fabric of the law, that suggests that probably does not fit into category (2) either. Lawrence v. Texas, for example, might be justified on the basis of Griswold and Eisenstadt, without using Roe or Casey.

If Roe falls into category (1), that is, it is a precedent whose opponents have tried for many years without success to overturn, and who therefore have conceded that it will not be overruled, there is very little that is "super" about it. Luttig's expression "super stare decisis" is a better (although also inaccurate) expression, because it focuses on the fact that stare decisis (and not Roe's underlying correctness) is at issue. (Luttig's expression is incorrect because it suggests that the rules of stare decisis are different for this precedent. They are not. The precedent is simply settled, like many other precedents where opponents have given up trying to get rid of it).

Of course, things can always change. For many years Roe was not even in category (1); lots of people were trying very hard to get rid of it, and many still are. In time, if Roe proves useful to large number of people both on the left and the right, Roe may eventually fall into category (2) or even (mirabile dictu) category (3). But that is not the case at present. Roe's status as a precedent is not currently the same as (for example) Brown's. Talking about Roe as a "superprecedent" obscures far more than it clarifies.

UPDATE: Kevin Drum thinks the real superprecedent is Griswold v. Connecticut:

If my understanding of Roe is correct, it's based on a generalized right of privacy as decided in Griswold v. Connecticut, which in turn was based on our current understanding of the doctrine of substantive due process. I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent.

Two points. First, Kevin's argument shows why the concept of superprecedents is inherently confusing, and why the distinctions I've drawn help sharpen the analysis. If Griswold is a "superprecedent," it's a different type than Roe would be. Griswold like Brown, probably falls into categories (1) (2), and (possibly)(3). People have given up trying to overrule it. Lots of later cases depend on it. Finally, it's widely (but not universally!) accepted and admired as articulating important basic rights of all Americans. The key bit of evidence for this is the Bork hearings, which demonstrated widespread public support for Griswold; Bork's inability to justify the decision became a reason to think that he was out of the mainstream. Indeed, the Democrats' strategy in the Bork hearings was to get Bork on record as equivocating about Griswold (and Bolling v. Sharpe and constitutional protections for women) rather than focus on his opposition to Roe v. Wade. That strategy made the most sense if by 1987 Griswold had started to turn into a hallowed and foundational precedent akin to Brown.

My hesitation about whether Griswold really fits into category (3) is that there are several constitutional scholars I respect who still believe that Griswold is wrongly decided and should be read as narrowly as possible. So I suspect that Griswold does not have quite the same elevated status as Brown (or Marbury v. Madison or Gibbons v. Ogden), although it seems far closer to that status than Roe v. Wade.

Second, if one was determined to do so, nothing could be easier than jettisoning Roe and retaining Griswold, and doing so would not endanger the web of cases outside of the abortion area that depend on Griswold: Eisenstadt, Carey, and Lawrence. Roe is distinguishable because in the case of abortion, but not contraception or same sex sexual relations, the state has an interest in the protection of embryonic or fetal life that has come into being following conception. Sometimes it might be difficult to determine whether a particular method of contraception actually prevented conception or operated as an abortifacent, so courts would have to devise rules to guide states who wanted to ban abortion but not contraception, but this would not necessitate overruling Griswold.

Posted 3:37 PM by JB [link] (15) comments

Justices Alito and Luttig?

JB

This Chicago Tribune article suggests that President Bush has narrowed his choices to replace Justice O'Connor to two, Samuel Alito of the 3rd Circuit and Michael Luttig of the 4th Circuit.

Both men would be acceptable to President's conservative base, but both would also set off a protracted struggle with Senate Democrats, who would regard each as too conservative. Of the two, Luttig has a somewhat higher profile and would probably face stronger opposition than Alito.

Either Alito or Luttig would delight the members of the conservative intelligentsia who were so disappointed by the nomination of Harriet Miers. The President, however, cannot simply please his base if he wants to succeed. He must calculate whether he will get significant opposition from the Gang of 14 (GO14). If Republicans in the GO14 would support both men and if the Democrats in the GO14 would not support a filibuster, either man will be confirmed as the Republicans have 55 votes in the Senate.

That is the President's favored scenario. An alternative scenario is that because the President has been politically weakened, a few Republicans in the GO14 would seek a more moderate nominee in the mold of Sandra Day O'Connor and would join with the Democrats to form a center coalition that would oppose the nomination. In that case, the President could not count on the support of 55 Republican votes. The key point here is that the Senators in the GO14 could, if they wanted, form the nucleus of an independent centrist powerbase that could challenge a President who is already reeling from a series of political setbacks.

The real issue is whether they will want to do this.

Posted 8:47 PM by JB [link] (11) comments

Libby/Fitzgerald/"Official A" in a Nutshell

Marty Lederman

Back in 2003, David Corn was the first to recognize the outing of Valerie Plame as a potentially important criminal story, and one of the only prominent writers to keep pressing the story when most of the mainstream press seemed uninterested (or subject to a conflict of interest).

Two-and-a-half years later, I haven't found a better summary of yesterday's developments, and their ramifications, than that found in David's column, which also catalogues the important questions that remain unanswered.

Also, this is the rare case in which the indictment itself is actually readable and informative -- it tells a clear and gripping story. And, to his great credit, Patrick Fitzgerald's Press Release, and the transcript of his press conference, consist of much more than the typical throat-clearing, inside baseball, and/or p.r. jargon: He's made a great effort to describe the case, and the criminal proceedings, in a way that the public can readily understand.

UPDATE: A bunch of interesting stuff over at the New Republic's new blog, "The Plank." For example, Frank Foer wonders whether Libby's apparent false statements began when Ashcroft and Comey were still on the case and when Libby therefore had little reason to fear indictment: "He probably assumed, with good reason, that this investigation would die a quiet death at the hands of Bush loyalists. Once Comey handed the case over to Fitzgerald, Libby was already locked into his mendacious storyline. From then on, he was screwed." (Foer discounts the idea that Libby lied -- and is falling on his sword -- in order to protect the Vice President, reasoning that "it . . . seems pretty clear that his boss did nothing illegal, and played no role in the outing of Valerie Plame." I don't quite understand this assumption. According to the indictment, it was Cheney himself who told Libby "that Wilson's wife worked . . . in the Counterproliferation Division" -- an unambiguous declaration that her position was among the case officers of the operations directorate; in addition, Cheney was present when the plotters discussed what to do about Joe Wilson -- only hours before Libby revealed to Matthew Cooper and Judith Miller that Valerie Plame worked at the CIA; and it seems rather far-fetched to assume that folks as close to Cheney as were Libby and David Addington did not at the very least receive a tacit, winking green light from the Vice President. But we shall see.) Ryan Lizza has another post explaining that the prosecutor's case will depend on the testimony -- contrary to Libby's -- of not only (at least) three reporters (Miller, Russert, Cooper), but also seven Bush Administration officials: Four from whom Libby learned Plame's CIA status -- Dick Cheney, an un-named senior CIA official, Undersecretary of State Marc Grossman, and Cheney spokeswoman Catherine Martin -- and three with whom Libby discussed Plame's CIA status -- an un-named CIA briefer, Cheney counsel David Addington, and Ari Fleischer. Good thing, too, that Fitzgerald has so many witnesses who will contradict Libby's story, because it won't be very difficult for a decent defense attorney to make mincemeat of Miller's and Fleischer's credibility.
Posted 10:55 AM by Marty Lederman [link] (7) comments

How to Evacuate a Major City

Anonymous

I would have posted this in September if I had my wits about me then. Perhaps you can think of this as a reflection on events formed immediately after Katrina. And it does seem incongruous to post this as Bush is having one of his worst weeks ever and there are so many other issues to discuss. But I can tell people in other cities are still thinking about evacuation issues, whether because of hurricanes, earthquakes, or terrorism. And I think there are some constitutional connections, especially to federalism, to some of the issues raised by the evacuation of New Orleans.

I’ll start with some distinctions. As I understand it, there are three types of evacuations: voluntary, mandatory, and forced. The difference between voluntary and mandatory evacuations is roughly the difference between a severe storm watch and a warning. A voluntary evacuation emphasizes that conditions are serious, but the authorities still expect to be able to deliver basic services once the storm hits. In a mandatory evacuation, authorities request everyone to leave and warn that basic services such as police, fire, and medical care will not be available after the storm. However, there is no legal penalty if you stay. Many Americans have wondered why everyone did not leave New Orleans before Katrina. Transportation and medical issues aside, there is no literal order to leave in a mandatory evacuation. If constitutional rights are not suspended (and I know of no mechanism to do so) no one can be forced to leave. I can only imagine what a forced evacuation of a major city would be like. A forced evacuation would have to involve tens of thousands of police and troops because otherwise you could never be sure everyone had left. And you would need powers of arrest if someone wanted to stay.

I’ve witnessed a number of evacuations of New Orleans since moving here in 1989. Especially after the threat of Hurricane Georges in 1998, it became evident that local and state authorities had not done the kind of comprehensive planning needed before New Orleans could be evacuated. Eventually, by working with Mississippi, authorities were able to devise the “contraflow” plan. The idea was to use all interstate lanes outbound in order to handle the crush of traffic. Contraflow received a good try during Hurricane Ivan in September 2004. In the opinion of most, it flunked. It took up to 11 hours to go the distance normally traveled in 1.5 hours. People became worried that they would still be on the road when the hurricane hit. These difficulties were reproduced in Houston just last month in the evacuation before Hurricane Rita. But the problems with contraflow were basically administrative and most of them were fixed before Katrina. The Katrina evacuation went better than Ivan.

As is now appreciated, all of this contraflow planning was occurring within a conceptual box that left out the tens of thousands, even hundreds of thousands of people in New Orleans who did not have cars, did not know where to go, and did not have enough money to afford a room when they got there. It’s puzzling to me that this failure is usually charged to local leaders. Moving everyone out of the city, even planning to move them would cost a lot of money and New Orleans city government has never had very much of that. In fact, it has long been known that city government was hamstrung in raising revenues by the state constitution. Even assuming the transportation issues could be solved, no one ever proposed a plan dealing with where to put these people. In any major evacuation, all the hotel and shelter room in Louisiana would already be full (which is why people without personal transport wound up in the Houston Astrodome).

So just as an observer interested in governance, two things were apparent to me before Katrina hit: (1) evacuating a major city was a state responsibility and (2) such an evacuation would raise regional issues and thus have to involve the national government. In addition, there was strong reason to think, even prior to Katrina, that evacuating a city is basically impossible. There are simply too many kinds of people with too many kinds of different problems. The experience of Ivan, in particular, pointed toward the need for “urban enclaves” such as the Superdome that would be shelters of last resort. With respect to the Superdome, the city government always made clear that it expected people to bring their own supplies, although it has been criticized for not having sufficient stocks on hand when they did not. I have never understood this criticism, for it again assumes that the city had so much money that it could afford to put millions of dollars worth of supplies in storage when it couldn’t afford to pay police a decent salary. New Orleans is a poor city in many ways and could not begin to afford the sort of transport or supplies required to take care of well over 100,000 people.

Despite these problems, made obvious by Hurricane Ivan, the state government did not assume any responsibility for transporting or housing the citizens of New Orleans. And here is where we reach our first federalism point. It tends to be assumed, as in the National Response Plan (check it out at the Department of Homeland Security) that any disaster should be handled at the lowest level of authority first. Pre-Katrina, responding to hurricanes is first the responsibility of local governments. To which the response should be: it all depends on the disaster. Again, pre-Katrina it was already apparent that hurricanes involved a regional response by interested governors at the very least. For example, one problem with contraflow in Ivan was that so many people were evacuating from Florida’s Gulf coast west into Louisiana that it hampered Louisiana’s own evacuation. Evacuations of this scope have to be planned and monitored at a national level. State and local authorities are capable of putting the plans into motion and supervising the process. But only a national authority can force states to cooperate to ensure citizens are protected.

Similarly, only national resources are sufficient to fund and supply the kind of urban enclaves needed to survive hurricanes and earthquakes. Any plan to cope with these events that assumes people will leave is a non-starter. As Katrina showed, even if you do have a car and don’t have medical issues, there are plenty of reasons not to leave. You may have relatives with these problems, of course. Or you may just want to protect your house and possessions from the breakdown in social order guaranteed by public officials who believe so firmly in the values of federalism that they overlook the fact that they don’t have the resources to preserve the basics of law and order. The Katrina experience showed that the officials who believe most firmly in the values of federalism, of valuing the local knowledge and capabilities of government were….officials in the executive branch of the national government! Local and state officials knew almost immediately that this crisis was beyond their means. I’m not suggesting FEMA and President Bush were entirely blind to the disaster. But constitutional values such as federalism slowed their reflexes. When state and local officials dialed 911, federal officials wanted to know exactly what they wanted, did they want the federal government to take over, how many troops, and on and on. All of these questions flowed from a legalistic concern with process, traceable ultimately to concerns about federalism.

If the constitutional value of federalism played a role in the disaster, are there any other values in the Constitution that might help us do better in the future? The one that’s occurred to me is the value of equal citizenship in the fourteenth amendment. Katrina has made me reflect more deeply on why the value of citizenship is important in inspiring and justifying federal action. I’ve already suggested as much in a previous post, so I’ll let the subject rest. But if you’re reading this as an undergraduate and you wind up in my conlaw class, just know that if I ever ask you the question implied by the title, the answer is: You can’t.
Posted 12:31 PM by Anonymous [link] (12) comments

More Amazing Stuff on Cheney and Libby and the Iraq War

Brian Tamanaha

From the National Journal, more damning evidence about the deliberately falsified (or "stretched") information that led to the war, and the subsequent attempt to cover it up:

Vice President Cheney and his chief of staff, I. Lewis "Scooter" Libby, overruling advice from some White House political staffers and lawyers, decided to withhold crucial documents from the Senate Intelligence Committee in 2004 when the panel was investigating the use of pre-war intelligence that erroneously concluded Saddam Hussein had weapons of mass destruction, according to Bush administration and congressional sources.

The Bush Administration argued that it could not be blamed for its good faith reliance on faulty intelligence work (not to mention Sadaam's dastardly trickery). The information withheld from the Senate Intelligence Committee, however, would have revealed the intervention of Libby/Cheney in shaping the misinformation.

Had the withheld information been turned over, according to administration and congressional sources, it likely would have shifted a portion of the blame away from the intelligence agencies to the Bush administration as to who was responsible for the erroneous information being presented to the American public, Congress, and the international community.

Surprised?
Posted 5:39 PM by Brian Tamanaha [link] (8) comments

Hamdan Again

Guest Blogger

Oona Hathaway

Tomorrow morning, the case of Hamdan v. Rumsfeld will once again come before the Supreme Court as it meets in conference. Already this year, the Court has held the case over an extremely unusual three times. It is now time that the Court do the right thing and take the case.

If the Court was waiting to discover whether a Justice Miers would likely recuse herself from the case—leaving it to be decided by only seven Justices (Chief Justice Roberts would recuse himself, because he was on the panel that decided the case below)—it can now stop waiting. Although the next nominee is not yet known, it seems highly unlikely that he or she will be someone who would have to recuse themselves from the case. And this is a case that deserves the Court’s attention—and deserves it now. Yes, it would be heard by an eight-member Court. But Quirin, which is the Government’s main support (the World War II case affirming, in limited circumstances, military tribunals), was itself the decision of an eight-Justice Court. What an eight-member Court did, an eight-member Court can (and should) revisit.

In a thoughtful and prescient dissent from the dismissal earlier this year of Medellin v. Dretke, Justice O’Connor wrote:

The Court dismisses the writ (and terminates federal proceedings) on the basis of speculation: Medellín might obtain relief in new state court proceedings—because of the President’s recent memorandum about whose constitutionality the Court remains rightfully agnostic, or he might be unable to secure ultimate relief in federal court—because of questions about whose resolution the Court is likewise, rightfully, undecided. These tentative predictions are not, in my view, reason enough to avoid questions that are as compelling now as they were when we granted a writ of certiorari, and that remain properly before this Court. It seems to me unsound to avoid questions of national importance when they are bound to recur. [125 S.Ct. 2088, 2105 (O’Connor, J., dissenting, joined by Stevens, J., Souter, J., and Breyer, J.) (emphasis added).]

What she said in that case is just as true today in Hamdan.

The merits of the case itself are clear, and I won’t repeat them all here. Suffice it to say that the D.C. Circuit’s decision to allow the use of secret evidence and to not permit the protections granted by the Geneva Conventions to be enforced in federal court deeply undermines international law and human rights here and around the world. Yesterday, 450 law professors (including myself) issued a statement urging the Court to grant certiorari in Hamdan to address “foundational questions” involving “the relationship between the President's constitutional powers as Commander-in-Chief and the existing constitutional, statutory, and international rules and tribunals that govern the conduct of war.” The text of the letter is available here.
Posted 4:59 PM by Guest Blogger [link] (6) comments

It's a good day

JB

to be a 50 year old conservative federal judge with impeccable credentials.

You might just get a promotion.

One assumes that Messrs. Wilkinson and McConnell are now among the front runners for a Supreme Court appointment. Michael Luttig, Edith Jones and Janice Rodgers Brown are also in the hunt, but they are more likely to raise hackles with the Gang of 14.

And don't forget Attorney General Gonzales, who suddenly is looking good, even though Democrats will be (justly) upset about the role he played in the Administration's detention and interrogation policies.

Posted 11:24 AM by JB [link] (6) comments

Conspiracy Theories

Mark Graber

One "advantage" of blogging is one can publish speculations that would justifiably be rejected by any reputable media or journal. So with this in mind, feel free to recommend the appropriate anti-paranoid drugs.

Is it a coincidence that Harriet Miers withdraws on the day or the day before a special prosecutor indicts major Bush administration figures? Or is it the case that if this administration managed the government as well as it manages the news, the unemployment rate would be 0%, Iraq would be the most democratic state in the world, and gas would cost a nickel a gallon?

Is it utter-paranoia to think that the Bush administration knew that Miers was a weak candidate, but used her as a stalking horse for someone like Edith Jones, who after all has lots of judicial experience and every credential Miers was accused of lacking?

Just thinking out-loud.
Posted 9:58 AM by Mark Graber [link] (35) comments

Miers Withdraws

JB

Harriet Miers has withdrawn her nomination.

The face saving excuse, as many predicted, was that the President was unwilling to release documents about her advice for the White House, arguing that this would violate executive privilege.

If you go back and read my analysis of why the nomination was likely to have significant problems, you will see that it stands up pretty well. The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.

For an analysis of what happens next, see my previous discussion here.

Posted 9:25 AM by JB [link] (3) comments

Our Hubris

JB

Their deaths.

An unnecessary war.

Remember the dead.

Posted 9:18 AM by JB [link] (8) comments

Did the Constitution Fail New Orleans? (Part 2)

Anonymous

One of the most depressing aspects of the fallout from Hurricane Katrina is how it has shown that Congress treats making sound policy as a byproduct or afterthought rather than a primary goal. If I recall correctly, this was one of Morris Fiorina’s major arguments in his book Congress: Keystone of the Washington Establishment (when I get back in my office, I’ll check the reference!).

In Congress, flood control efforts designed to save lives and property are classified as water projects. And water projects. . .well, many people know them as the purest form of pork. Water projects can indeed control flooding, but what they more often do is provide dams for dubious recreational projects that states should pay for themselves and even more dubious navigation projects that cannot meet cost-benefit tests. What benefits they do provide tend to go to shipping interests who are also interested in supporting the member of Congress who provided the benefits. So instead of having a water control policy, we have 535 policies. The Washington Post recently quoted Mark Davis, identified as the head of a coastal restoration coalition. He stated: “We don’t have a water agenda in this country that makes any sense. . . Our policy is just to keep spending money. And we just paid a staggering price for it.” (See “The Slow Drowning of New Orleans,” October 9)

Observers of Congress with a longer view might reply that the point of water projects has never been to fulfill a “water agenda” or make “water policy” but simply to provide what the Post characterized as a “form of currency” that keeps the legislative wheels spinning. This process is an example of what Fiorina meant by saying that policy was a byproduct of Congress, not its main goal. Critics often fault Congress for enacting incoherent policies and refusing to prioritize. But suppose members of Congress are not simply feckless, but acting rationally within a structure they did not create. And what might that structure be? It’s the Constitution, of course.

More specifically, it is the collision of the disaggregated structure of Congress, based on single-member districts in the House and state representation in the Senate, with the demands of the activist or interest group state. The activist state gave Congress the chance to do things it had never done before, such as giving local concerns millions of dollars they could not get from their state governments. Yet there was no way to provide an organizing principle to guide this local aid. Thus today, we have measures to fund transportation projects, higher education, and of course water projects that consist almost entirely of “earmarks,” legislative provisions that direct money to a specific project in a specific congressional district. Every member of Congress gets something and that keeps the legislative process going.

The tragedy of Katrina is that flood control designed to save lives was treated as just another pork barrel item. Indeed, it was treated as such by representatives from Louisiana! So why can’t we prioritize? Why can’t flood prevention designed to save entire cities be treated as more important than projects justified solely in economic terms? An illustration of why not was just provided in Congress, as Senator Coburn of Oklahoma tried to use money devoted to an Alaskan “bridge to nowhere” for Katrina purposes. Senator Stevens of Alaska in effect replied: Over my dead body! In our constitutional system, all projects desired by members for their districts are equal. The national interest, which might be to avoid spending tens of billions to fix the problems caused by inadequate flood control, is only rarely at the table.

In the 1950s and 1960s liberals thought they had an answer to the dysfunction of Congress. On the executive side, presidential leadership would set national priorities. On the legislative side, as political scientist Julian Zelizer has detailed, comprehensive reform of the legislative process would allow national objectives to be realized. Both of these were good examples of informal constitutional change – political actors trying to adapt the institutions created by the Constitution to new circumstances. But both obviously fell short and had unanticipated side effects. Experience seems to teach that a legislative process capable of setting priorities and enacting at least some coherent policies would be one where the leadership has both the ability and the incentive to say “No” to the current situation where earmarks are rampant, but also would be able to give members of Congress what they need to survive. Unfortunately, as a polity we haven’t spent any time thinking about the sort of institutional structures that would make this possible.

Finally, a general point. I imagine talking about how “the Constitution” “failed” New Orleans could cause a certain amount of confusion. Am I referring to the 1787 Constitution, the stainless achievement of the framers? Of course not. “We” (Americans through time) have been working on the Constitution from the moment it was ratified, sometimes adopting formal amendments that changed the constitutional order in significant ways, sometimes using informal means. If the Constitution should have been altered more significantly in response to the activist state, surely it is our nearby contemporaries, not the framers, who were responsible for failing to seize the moment. And we are all still working on the system, so to speak. But when government institutions fail, it is usually not due solely to failures of leadership. Leaders and institutions operate within the structure established by formal and informal constitutional rules. When government institutions fail as dramatically as they did during (and now after) Hurricane Katrina, that structure must also be a focus of our concern.
Posted 10:39 PM by Anonymous [link] (11) comments

Taking Lawyer Jokes Seriously

Brian Tamanaha

These are tough times for the legal profession (and how many times has that been said before?). Enron, Arthur Anderson, KPMG, the "Torture Memo"--spectacular instances of greed and/or immorality, all facilitated or perpetuated by lawyers. But anyone who asserts that the public view of lawyers has worsened in recent decades owing to these and other events (Watergate, Savings and Loan debacle, etc.) will likely be reminded that anti-lawyer sentiment is timeless.

Did you hear about the post office having to cancel its commemorative issue honoring lawyers? It seems that it was too confusing--people didn't know which side of the stamp to spit on.

In his new book, Lowering the Bar, reviewed here, Marc Galanter, one of the preeminent scholars of the legal profession, has come up with a novel way to get at this question: he collected every lawyer joke he could find, going back several centuries, and drew connections between patterns of lawyer jokes and changing public attitudes towards lawyers. For example, the above joke was initially told of Hitler and Stalin, and only later of lawyers. (Ouch!).

Galanter found that the quantity and nastiness of lawyer jokes has exploded since about 1980, and offers an analysis of why. This is a fascinating study (with a bunch of funny lawyer jokes).
Posted 12:54 PM by Brian Tamanaha [link] (4) comments

LSAT Blues

Mark Graber

This week I will be advising many undergraduates upset with their LSAT scores. Having done so for almost 20 years, I think I have a fairly good idea of what the examination does and does not test for. First, as is well known, the LSAT tests for race, to a lesser extent, social class, and whether you think in English. Second, the LSAT tests for whether your college grades reflect hard work or natural aptitude. Every year, I have students who have worked their tails off for high grades get brought down to earth by their LSAT score. By comparison, my lazy A's, sometimes B+s, do well. Third, the LSAT tests for unconventional minds who may have taken a few grade hits, but actually are serious intellects. Finally, and most important, the LSAT often tests for whether you took an LSAT prep course, or spent the time studying, doing an extra-curricular, or doing charitable work. In short, as several of my students note, with rare exception the LSAT makes college largely irrelevant and as the "A" stands for, tests for aptitude rather than any quality one might associate with merit.

Ignoring some the of the race issues (other than that, how was the show Mrs. Lincoln), the LSAT may provide some useful information to law school admissions committee.s I gather it has some predictive value, at least as to law school grades, so it may well be the case that my lazy A's shape up in law school or are bright enough to do well, again putting forth less than a full effort. Maybe there is no really good alternative. I do not know.

But with the increased emphasis on LSATs, inspired no doubt by US World News and Report, law schools are missing out on a lot of good kids who I think will be better lawyers and better professionals than those with slightly higher scores. A student who spends time helping neightbors may get a lower score than a peer who took the Kaplan course, but I suspect the former will do more honor to the legal profession. And maybe there is something unfair in an allegedly meritocratic society and profession judging students on how they performed one day, rather than on their overall record, particularly when, through course preparation, one can often buy a better score.

The best I can do is write fairly detailed letters of recommendation for my students. I know many committed undergraduate teachers who do the same (and am also aware of the many two sentence letters of recommendation law admissions committees get). We detail the strengths (and sometimes the weaknesses) of our students to try and enable a committee to determine where they belong. All we can hope for is that when we write these letters that our students are judged on their performances for four years, rather than one day. For those reading who serve on these committees, if you have questions about these students, call us. Make a decision on the person, not the number.
Posted 9:06 AM by Mark Graber [link] (1) comments

We Need "Maximum Flexibility" to Waterboard

JB

The New York Times reports that the Administration has pressed to exempt the CIA from the proposed McCain Amendment's ban on abusive treatment of detainees.

The Senate defied a presidential veto threat nearly three weeks ago and approved, 90 to 9, an amendment to a $440 billion military spending bill that would ban the use of "cruel, inhuman or degrading treatment" of any detainee held by the United States government. This could bar some techniques that the C.I.A. has used in some interrogations overseas.

But in a 45-minute meeting last Thursday, Vice President Dick Cheney and the C.I.A. director, Porter J. Goss, urged Senator John McCain, the Arizona Republican who wrote the amendment, to support an exemption for the agency, arguing that the president needed maximum flexibility in dealing with the global war on terrorism, said two government officials who were briefed on the meeting. They spoke on condition of anonymity because of the confidential nature of the discussions.

Mr. McCain rejected the proposed exemption, which stated that the measure "shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."

As Marty Lederman has pointed out here, the purpose of the amendment is not to give the President "maximum flexibility" for the future, but rather to exempt the CIA so that it can continue to do what it has been doing for some time.

The language of the proposed exemption seems to require adherence to existing human rights treaties like the Convention Against Torture, but the Bush Administration has taken the (unreasonable) position that the ban on cruel, inhuman, and degrading treatment of prisoners in the CAT does not apply to overseas interrogations, which gives the CIA the green light to engage in cruel, inhuman and degrading treatment that stops just short of torture as the Administration (narrowly) defines that term.

One interesting result of the negotiations over the McCain Amendment is that they place the Administration in the position of having to accept (at least provisionally) that at least some forms of Congressional restraint on the executive's powers to interrogate are constitutional.

Obviously, the Administration may turn around and say that all such limits are unconstitutional, but it will politically become more difficult to do so after this.

Posted 6:54 AM by JB [link] (14) comments

Matt Welch sums it up so I don't have to

JB

Flip flopping away as the indictments grow ever closer.

Now we can expect a festival of Clinton-impeachment switcheroos, with Dems learning to love perjury traps while Republicans ditch the "rule of law"; and everyone trades places on the wisdom of having a sitting president testify in a civil suit. Coming up: Besieged complaints about the vast left-wing conspiracy, and true-believer laments that the president's detractors "refuse to accept the results of the election." Good times.

You know the nearer the destination, the more they're flip flopping away.
Posted 2:26 PM by JB [link] (4) comments

What Should Democrats Do About Miers? Beyond the Popcorn Strategy

JB

What should the Democrats do about the Miers nomination? Currently, the Democrats are engaged in a "popcorn" strategy. Metaphorically speaking, they are sitting back, munching on popcorn, and enjoying the show as Republicans fight among themselves. They are silently being entertained while the Republicans use their well-honed skills of attack politics against each other.

In the short run, at least, the popcorn strategy makes perfect sense. First, letting Republicans attack each other (and President Bush) helps Democrats further weaken Bush's political standing; Bush must not only keep his initiatives on track in the face of scandals and political opposition, he must also quell rising resentment in his own party and particularly from his conservative base. Second, the strategy of waiting and watching may eventually help Democrats break through the stonewalling of an decidedly secretive Administration. At least some Republicans are now pressuring the President to waive executive privilege and release information about Miers' work for the executive branch. This work may concern some of the most important questions of Presidential power in our era, including questions regarding the executive's use and misuse of intelligence, and the executive's policies regarding the imprisonment, interrogation and torture of detainees. Third, letting Republicans fight among themselves may help Democrats crack the marvelous party discipline that has allowed the Republicans to resist the forces of political gravity for the last five years and govern from the right, instead of having to form a center coalition with substantial numbers of Democrats.

Nevertheless, at some point, the popcorn strategy will no longer prove viable. Democrats must decide whether they wish to join conservative Republicans opposed to Miers and sink her nomination. Assuming that most Democrats hold together, they need only about six or seven Republican votes to do this. Such a coalition would involve strange bedfellows, but that's politics. A few conservative Republican Senators might join with Democrats to signal their growing displeasure with Bush on a wide range of matters or to raise their own profiles for the 2008 Presidential elections. This seems to be Kansas Senator Brownback's thinking, at least. It allows these conservative senators to compete with figures like John McCain, who long ago established his independence from Bush, and Bill Frist, who as Senate Majority leader is virtually required to fight for the nomination or risk a very serious breach with the White House.

One reason why Democrats might hesitate to sink Miers is concern about what might happen next. There are at least three scenarios. In the first scenario, Bush capitulates to his right wing base and nominates a known candidate with excellent credentials who is an ideological conservative in the Scalia/Thomas mold. Then Democrats are worse off than they would have been with Miers.

The second scenario is that Bush becomes angry at his conservative base for its disloyalty, and, weakened by his current political problems (Iraq, Katrina, indictments of his closest aides, etc), decides to nominate a decidedly moderate candidate in the mold of Sandra Day O'Connor, looking to cobble together a bi-partisan majority in the Senate. This strategy works to the Democrats' advantage.

The third scenario is that Bush, recognizing that the 2006 elections are coming up, decides to hold off nominating anyone until he regains some political strength. He hopes to nationalize the 2006 elections around the judiciary and social issues, hoping once again to distract the voters from Iraq, the economy, and corruption. The outcome of this strategy is uncertain, in part because the Republicans basic plan for 2006 is to localize the election, not nationalize it. Bush's plan may backfire if the Democrats do well in the fall elections he may eventually wind up having to choose someone more moderate. In the meantime, Justice Sandra Day O'Connor remains on the Court. This scenario is also fairly good for Democrats, at least in the short run and possibly in the longer run.

Democrats would prefer either the second or third scenarios-- a more moderate candidate now, or keeping O'Connor in place for a while longer. But in opposing Miers, Democrats must consider the danger of the first scenario. How likely is that scenario-- an even more conservative nominee? Historically, when a President is rebuffed in his choice of Supreme Court candidates, he chooses a more moderate nominee who will be easier to confirm. At least that has been the case in the twentieth century. However, the present situation is unique in that the opposition is coming not from the other party but from the right side of the President's own party. Moreover, the President's reverse playbook of his father's administration tells him never to anger the conservative base for very long. That counsels in favor of nominating a more ideological conservative with a considerable paper trail. And that would mean that the Democrats' strategy would backfire.

However, this overlooks the fact that the political features which led Bush to choose a stealth candidate in the first place have not disappeared. Bush is still politically weak. More to the point, Bush must reckon with the Gang of 14. The Gang of 14's agreement to withhold support for filibusters and the nuclear option that would have ended them was designed, among other things, to prevent the nomination of candidates who are too far to the right (and thus would provoke a Democratic filibuster). If Bush lost a vote on Miers' confirmation (or if Miers withdraws without a vote), this would not weaken the Gang of 14; if anything it would strengthen their hand. Thus we must begin with the assumption that if Miers is not confirmed Bush cannot nominate anyone unacceptable to the Gang of 14. And that suggests a more moderate second nomination.

But not necessarily. Bush might be able to find a strong conservative who is also acceptable to the Gang of 14. After all, the flip side of the notion the agreement that there will be no filibusters (except in so-called "extraordinary circumstances") is that elections do have consequences; the existence of an agreement in the center tells liberal Democrats that they must expect (and accept) a fairly conservative nominee. Thus, some conservative candidates, especially those with very strong credentials, would be acceptable to the Gang of 14. The most likely candidates would be people like McConnell or Wilkinson. McConnell would be a particularly attractive choice: he is a Christian conservative with impeccable credentials who is much admired by academics from across the ideological spectrum. If Miers goes down, Bush might well respond with someone like McConnell.

Although this is a possible outcome, there are good reasons for Democrats to hope for the second or third scenarios, and join Republicans in voting down Miers if she fails to impress after her hearings. First, if Miers is voted down, Bush will be weakened no matter what else happens. A weakened Bush is easier for Democrats to deal with, not just on the issue of Supreme Court nominations, but on a whole host of other issues. Second, Bush may still feel a need to nominate a woman or a Latino, which will greatly circumscribe his choices if the nominee must also be acceptable to the Gang of 14. Third, if Miers is rejected on grounds that she is a crony who lacks qualifications, this helps Democrats in the 2006 and 2008 elections; they can run on themes of opposition to cronyism and corruption, and use Miers' nomination as an example. Third, as noted before, fighting the Miers nomination and demanding that the President waive executive privilege helps the Democrats begin to break through some of the Administration's secrecy. It may also help foster a centrist coalition that can do business in Bush's second term.

I have left the most important reason for Democrats to oppose the Miers nomination until the last. It has little to do with strategic political considerations. Democrats, like all Americans, should want the Supreme Court to be staffed with the best possible candidates-- candidates who have the legal skills and expertise to handle the issues that come before the nation's highest Court and who have the experience, judgment and gravitas to make good decisions when the law is unclear or unsettled. The Court needs and deserves judges who are both excellent lawyers and judicial statesmen. As of now, Harriet Miers, for all of her admirable qualities, does not seem to be that sort of person. Perhaps she will convince us otherwise in the upcoming hearings, but if she does not, the Democrats should oppose her. It is true that Bush may nominate someone even more conservative if Miers is not confirmed, but in one important sense this is beside the point. Democrats who care about the institution of the Court, and who care about the future of the Constitution, should want good people on the bench even if their views about the Constitution differ in important respects from their own. That is what it means to act in the public interest and for the public good: to safeguard and protect the vitality and the quality of the key institutions of American government-- whether they be the Congress, the President, or the courts.

Posted 6:57 AM by JB [link] (15) comments

Miers and Affirmative Action

Marty Lederman

Of the multitude of complaints about Harriet Miers emanating from the right wing of the blogosphere, this must be among the oddest.

The indictment is that Miers not only supports affirmative action in the private sector, but that she is insufficiently skeptical of the constitutionality of affirmative action in the public sector. (The complaint about Miers and affirmative action is a recurring one -- Mike Rappaport even calls it her "smoking gun.") The writer ("Blanton") can't even imagine the "pains" that one would have to endure "to explain how personal support of affirmative action and a conservative judicial philosophy mess." (I assume he/she means "mesh" -- but whatever.)

Well, how about this for starters?:

1. Assuming arguendo that Miers thinks Grutter was basically decided correctly (not that I've seen any firm evidence to that effect), such a position would be consistent with the "original intent" and "original meaning" of the Fourteenth Amendment -- see Jack's posts on this topic here, here and here. (Mind you, it's not that I think original intent and/or meaning are conclusive of the constitutional question -- but Miers's detractors from the right generally purport to care about such things.)

2. It's the position that rejects judicial "activism," in the sense that it refuses to invalidate state decisionmaking. (And for the same reason it's pro-"federalism.")

3. The most that Miers is alleged to have done is to support the very veiled so-called "endorsement" of affirmative action in the government's Grutter brief, which argued that the Michigan program was unconstitutional. I'm not a big fan of the Government's brief in Grutter -- see my initial reactions in the post of January 17, 2003 here -- but that's hardly because it's a ringing endorsement of the constitutionality of affirmative action.

4. Oh, by the way, the Grutter brief that Miers allegedly supported was signed by such flaming liberals as Ted Olson, Paul Clement, and Brian Jones. (No, not that Brian Jones. This Brian Jones -- see here to get a sense of his views on affirmative action.) And, not to put too fine a point on it, but even if (as rumored) that brief does not reflect Olson's personal views, it does reflect the (conservative) President's own perspective on the question. (The President himself has, for instance, been notoriously race-, sex-, and religion-conscious in his own appointments.) How dare he nominate someone who agrees with his constitutional perspective?!

Does that mesh (or "mess")?
Posted 3:38 PM by Marty Lederman [link] (10) comments

The Virtues of the Miers Nomination

Marty Lederman

Professor William Stuntz has a new essay in the New Republic in which he identifies at least two upsides of the Miers nomination:

1. She's (probably) more skilled than was Chief Justice Burger. (Burger, of course, is one of the two Justices (along with Holmes) who Miers herself most admires -- well, him or Earl Warren, anyway.)

2. As with Bush 41's selection of Dan Quayle, Miers's nomination -- and the resulting firestorm -- will serve as an object lesson for future Presidents about how not to choose a Supreme Court nominee.
Posted 7:51 AM by Marty Lederman [link] (7) comments

Bush's Ace in the Hole-- The Pardon Power

JB

Rumors are buzzing about who will be indicted in the Plamegate scandal, and what further revelations will develop. Some people have even speculated that the Vice-President may be indicted or named as an unindicted co-conspirator.

But just remember that the President always has the means to stop judicial proceedings of his closest political associates from going any further. He can simply pardon persons indicted for a crime, or even those who have not yet been indicted.

On December 24th, 1992, a month before he left office, President Bush's father, George H.W. Bush, pardoned former Defense Secretary Caspar Weinberger and five other individuals for their conduct related to the Iran-Contra affair. In so doing, Bush not only put an end to the criminal prosecutions arising out of the Iran-Contra affair, he also ensured that he would never be required to testify as a witness in a criminal trial after he left office. The former President was no fool. He knew that for many years critics refused to believe his repeated protestations that he was "out of the loop" on the machinations surrounding Iran-Contra during the Reagan Administration. Once under oath, he would be required to divulge exactly what he knew and when he knew it.

If sufficiently high level officials are indicted, his son, President George W. Bush, may also be vulnerable to be called as a witness and placed under oath. The most obvious way to avoid that unhappy scenario is to make sure that no criminal trial ever occurs. The pardon power takes care of that.

The President's power to pardon is effectively unreviewable. The only real constraint is political: the President must take the political heat for his actions, as Gerald Ford did in pardoning President Richard Nixon. Bush's father was able to pardon Weinberger et al. a month before his term expired, so he had very little to lose politically, and he wagered (correctly as it turned out) that most people would soon forget the potential self-dealing in his decision. Bill Clinton also took considerable heat for his last minute pardons of political supporters near the end of his presidency, but he too figured (also correctly) that this too, would pass.

George W. Bush, by contrast, is in the first year of his second term. Although unlike Gerald Ford he will not stand for reelection, like Ford he must govern for several more years, and he is already in a politically weak position. That would counsel not invoking the pardon power for as long as he possibly can.

If important persons in the Bush Administration are indicted, and there is a significant danger that revelations damaging to the President will surface, don't be surprised if the President uses his ace in the hole-- the pardon power. Some might argue that the President simply wouldn't dare; others will insist that he would be impeached if he tries it. But what the President is likely to do depends on the alternatives if he doesn't act, and remember, the Congress is controlled by members of his own party, not by the opposition as was the case during the Clinton Presidency. This president has a knack for self-preservation; and if the pardon power is the best alternative he has, you can be sure that he will use it.

Posted 5:53 PM by JB [link] (29) comments

Who's Afraid of A Litmus Test?

JB

More evidence that the stealth strategy is not going over well with movement conservatives.

Mike Paulsen and John Yoo demand that Harriet Miers explain her views on Roe v. Wade or face rejection by the Senate:

The only way out of this mess is for GOP senators to ask — and to require Miers to answer, as a condition of confirmation — direct questions about her judicial philosophy and its application to concrete constitutional issues. Republicans should test Miers' core legal principles. And if she fails the test, or refuses to take it, they can vote against her.

The administration's stealth strategy assumes that it is improper for senators to ask, or for a nominee to answer, a question about Roe vs. Wade or any other substantive constitutional question. This has things exactly backward. The Constitution not only permits such questioning, it arguably requires it. Although the Constitution makes judges independent after appointment, it sets up an explicitly political appointment process before a judge is approved. Why on Earth would determining a nominee's approach to interpreting the Constitution be thought to be out of bounds, before giving her a lifetime appointment to do exactly that?

Is there any line of inquiry that the Constitution does not permit? Yes. It would be improper to try to exact a pledge as to how a nominee will rule in future cases. As long as the inquiry stops short of that, it does not violate the Constitution's protection of judicial independence, nor does it violate judicial ethics. Parties before the courts are entitled to judges who will consider their cases without bias. But they are not entitled to judges who have no views of the law. An open mind is one thing; an empty head is another.

We would go one step further. The most useful way of discovering a nominee's views is through "litmus tests." One question would yield the maximum information about a nominee's judicial philosophy (without requiring a commitment as to any future ruling): "What do you think of Roe vs. Wade"? The answer could explain her theory of constitutional interpretation, her views on the judicial invention of rights not set forth in the Constitution, her views on when courts should follow precedent, and her views about the judiciary's role in our constitutional system.

Conservatives should insist that all nominees should interpret the Constitution in strict accordance with its text, structure and original understanding. Judicial decisions that depart from these principles amount to freewheeling policymaking from the bench. Precedent always should receive respectful consideration, but it cannot trump the Constitution. Because the Roe vs. Wade decision ran contrary to the Constitution and sound principles of constitutional interpretation, conservatives can maintain, forthrightly and without fear, that no judge should be appointed to any federal court who thinks the case was correctly decided as an original matter.

The administration may prove right in its claims that Miers is a principled conservative and an outstanding lawyer. Miers may very well think Roe vs. Wade is wrong and that judges should strictly interpret the law rather than make law. All she has to do to prove it is to answer one simple question: Ms. Miers, what do you think of Roe vs. Wade?

Now that's a litmus test. If you think that Roe is correctly decided, you are hereby disqualified from serving on the federal judiciary. No ifs, ands, or buts.

Of course, as I've pointed out on any number of occasions, Republicans can preserve their winning electoral coalition and remain as the majority party only if they don't force judicial candidates to state under oath that they oppose Roe v. Wade and seek to overturn it. So now movement conservatives, justifiably angered by Bush's cronyism and lack of serious concern about the Constitution, are demanding that the Senate Republicans destroy their own coalition.

I'm really looking forward to the hearings, aren't you?

Posted 4:59 PM by JB [link] (7) comments

Always Look at The Pocket Part

JB

The Yale Law Journal has started an innovative experiment in the traditional world of law reviews-- The Pocket Part. TPP is not another online law review, and it's not another blog. Rather it's an electronic companion to the regular editions of the Yale Law Journal, featuring shorter versions of articles from the Journal plus commentary by other scholars, along with a comments section so that still others can participate in the discussion. This is an excellent way to supplement the scholarly work of law reviews and I wish the editors great success. If The Pocket Part catches on, I predict it will change the way we think about law reviews and what one can do with them. In particular, TPP shows how you might turn a one-to-many medium published infrequently with high barriers to participation into a participatory medium that permits a continuous conversation and that is organized around scholarly work of the highest quality.
Posted 2:42 PM by JB [link] (8) comments

Confirm Them Has Turned Into Don't Confirm Her

JB

Or so it would seem. Whatever happened to the President's mighty Article II power to have his chosen candidates confirmed by the Senate?

The reason for the apparent flip-flop on this suddenly inappropriately named blog is that all those arguments about the unconstitutionality of the filibuster, the advantages of the nuclear option and, above all, the Senate's duty to confirm whoever the President chooses were premised on the President selecting candidates they approved of.

The fine folks over at Confirm Them have come to realize more urgently what they believed all along-- that qualifications are perhaps the most important feature in a judicial nominee.

Good for them. They care about what Sandy Levinson and I call the "high politics" of constitutional law. I may not agree with their views about the best interpretation of the Constitution, but I salute the fact that they are serious about the Constitution and about making sure that good people are put on the federal bench. The President, on the other hand, does not seem to share this seriousness about the Constitution. He just wants people on the bench who won't get in his way and will reach results he likes, however they get to that particular conclusion. Harriet Miers may turn out to be just dandy as a Justice; she may in fact be far more than the portrait we have from the press: a syncophant and crony put on the Court to give the President whatever he wants. But the early indications are not at all promising.

Posted 11:18 AM by JB [link] (11) comments

It's the Groupthink, Stupid. (Or It's the Stupid Groupthink)

JB

Over at Mark Kleiman's blog, Steve Teles argues that if Bush had nominated someone like Michael McConnell or Michael Luttig, the Federalist Society and related movement conservatives who seek long term changes in legal culture would not be at odds with members of the Christian right and what Teles calls the "electoral wing" of the Republican Party-- those Republicans who just want to win elections and achieve particular policy results.

If Teles is correct, one wonders why Bush didn't try to appease both wings of the party, given that he had more than 50 votes in the Senate, and given that someone like Michael McConnell, at least, had a very good change of avoiding a democratic filibuster. Instead, Bush chose a stealth nominee, Harriet Miers, who now has exacerbated the conflict between the different parts of the Republican coalition. This suggests either

(1) Bush is extremely risk averse to a threat of a filibuster (unlikely, given his past behavior);

(2) Bush was told by members of the Gang of 14 that neither McConnell, Luttig, Wilkinson, or any other conservative with comparably excellent qualifications would be acceptable (highly unlikely);

(3) Bush was determined to nominate a woman, and the Gang of 14 had signalled that none of the women in the group of candidates with excellent credentials would be acceptable (unlikely but not out of the question);

(4)Simple hubris: Bush was being stubborn and engaging in a bit of cronyism, thinking that no one in the Senate would stand up to him; and his advisors, who were distracted and afraid to cross him, couldn't dissuade him from this selection (somewhat more likely).

If the answer is (4), or something like it, this suggests the importance of diversity of opinion and institutional checks on self-dealing and groupthink among decisionmakers. It is no accident, I think, that Harriet Miers was the result of a process led by Harriet Miers herself assisted by other close friends of the President. (Recall that Dick Cheney was the head of the Vice-Presidential search effort, and he ended up becoming Vice-President). Sometimes relying exclusively on trusted aides works, but in the long run it is a recipe for very bad results. The Bush Administration's mishandling of the Iraq war seems to me to be a case in point. (And my suspicion is that much of the responsibility for those bad results can be laid at the feet of Bush's selection for Vice-President.). Bush's selection of Miers already seems to have been a strategic mistake from the standpoint of the interests of his party; only in the long run will we know whether it was also a bad choice for the country.

Posted 9:30 AM by JB [link] (10) comments

Another Crisis Moment? Why?

Brian Tamanaha

In The Progressive Historians (1969), historian Richard Hofstadter identified this pattern:

[A]bout once in each generation they [American people] endured a crisis of real and troubling severity. The Union was in some danger of division during 1798-1801; it was in serious trouble during the years 1807-14 and again in 1832. It was racked by such grave differences in the 1850's that it finally broke in two. It went through a touchy crisis again in Reconstruction, climaxed by the events of 1876-7. It was deeply disturbed in the 1890's and again in the 1930's. And now, in the 1960's it is in the midst of a dangerous major crisis the outcome of which I hesitate to try to predict.

A sign of a crisis is a lapse of comity:

Comity exists in a society to the degree that those enlisted in its contending interests have a basic minimal regard for each other: one party or interest seeks the defeat of an opposing interest on matters of policy, but at the same time seeks to avoid crushing the opposition, denying the legitimacy of its existence or values, or inflicting upon it extreme or gratuitous humiliations beyond the substance of the gains that are being sought. The basic humanity of the opposition is not forgotten; civility is not abandoned; the sense that a community life must be carried on after the acerbic issues of the moment have been fought over and won is seldom very far out of mind; an awareness that the opposition will some day be the government is always present.

Are we in another once-in-a-generation crisis moment? The timing is right, and his description of the breakdown of civility fits. If that's so, you have to wonder why. Circumstances today do not appear that bad, on the surface anwyay.

The present situation combines two characteristics, at least one of which was present in previous crisis moments. We are at war, though in the absence of a draft this is not a total national war. And we appear to be in the midst of a severe economic readjustment (economic uncertainty, extraordinary disparity in wealth between rich and poor, wages losing to inflation, personal and national debt), though it falls short of past depressions. Arguably the current redistribution of wealth to the rich and the loss of economic power of labor is taking place on a scale analogous to past structural changes in the economy (from agriculture to industry, from South to Northeast), but that seems a stretch.

Maybe this just feels like a crisis because the talking heads are blowing a lot of hot hair in the media and blog world. Protests and social disruptions are few and mostly docile (reaching a peak two days ago when a dozen or so Grandma's Against the Irag War were arrested in Times Square at a military recruiting office for demanding to be allowed to enlist). Maybe we are experiencing a breakdown in civility but not a full blown crisis. Maybe this is just a continuing echo of the unresolved crisis of the 1960's and 1970's.

Perhaps if you have to ask whether you are in a crisis, you're not in one--yet. But it sure feels like one.
Posted 8:39 AM by Brian Tamanaha [link] (11) comments

Beware the "Augmented" McCain Amendment!

Marty Lederman

The Conference Committee that will consider and reconcile the Senate and House defense appropriations bills is scheduled to meet this coming week. The Senate bill contains the "McCain Amendment," which would prohibit all U.S. personnel from engaging in cruel, inhuman or degrading treatment of detainees -- i.e., engaging in conduct that would "shock the conscience" under Due Process Clause doctrine -- anywhere in the world.

It's increasingly clear that the strategy of McCain's opponents -- the Vice President and his congressional supporters -- will be to amend the McCain Amendment in the Conference Committee so as to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment of detainees. The Senate delegation to the Conference Committee presumably will include three of the nine Republicans who voted against the McCain Amendment -- Ted Stevens, Thad Cochran and Kit Bond. A recent Congressional Quarterly article, reprinted here, reports Stevens -- who would "lead the Senate's conferees" -- as saying that "he can support McCain's language if it's augmented with guidance that enables certain classified interrogations to proceed under different terms." "'I'm talking about people who aren't in uniform, may or may not be citizens of the United States, but are working for us in very difficult circumstances,' Stevens said. 'And sometimes interrogation and intimidation is part of the system.'"

What this barely veiled statement means is that Senator Stevens will support inclusion of the McCain Amendment in the final bill only once it has been "augmented" to exempt the CIA from the prohibition on cruel, inhuman and degrading treatment. (Stevens's reference to persons who "may not be citizens of the United States, but are working for us" suggests that he also intends to include a carve-out for foreign nationals acting as agents of the CIA, such as the team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions.) If Stevens (read: Cheney) is successful in this endeavor, and if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is.

Those wishing to learn all the details of why this is so are encouraged to read my previous posts (particularly those of January 8, 12, 18 and 25, and May 11) about how the Administration has construed numerous federal laws to make certain that the CIA is permitted to engage in cruel, inhuman and degrading treatment -- i.e., to engage in all forms of coercive interrogation short of the small category of conduct denominated "torture." Here's a quick synposis of why the Stevens "CIA carve-out" would make matters worse, the basic gist of which is this: Although the McCain Amendment would helpfully clarify and reaffirm some of the law applicable to military interrogations, it would not impose any substantive limitations on the Armed Forces that are not already in current law. The McCain Amendment would, however, emphatically reject the Administration's view that the CIA may engage in cruel, inhuman and degrading treatment in certain locations outside the U.S. -- a very significant development, but one that the Stevens "augmentation" would eviscerate.

The McCain Amendment has two provisions:

The first provision is, by its terms, limited to detainees in the custody or effective control of the Department of Defense (or in a DoD facility). It would provide that all such detainees could be subjected only to those interrogation techniques listed in the Army Field Manual on Intelligence Interrogation. This first provision would be a good and helpful clarifying statute, because it would once again signal to military personnel that there are established and uniform rules for interrogation and that such rules can be found in one place. But this first provision would not effectively prohibit cruel, inhuman and degrading treatment of military detainees, for two reasons. First, even though the current version of the Manual has long been understood to incorporate the most protective rules applicable to prisoners of war under the Third Geneva Convention, the Pentagon has recently concluded that the Manual actually authorizes degrading and humiliating treatment, such as having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times. This interpretation of the Manual is preposterous; but nothing in the McCain Amendment would stop the Pentagon from adopting such a reading. Second, and more importantly, the McCain Amendment does not itself establish any substantive rules, because (as Senator McCain acknowledges) the Pentagon would be able to amend the Army Field Manual anytime it wishes. In fact, such an amendment is currently in the works, and the soon-to-be amended Manual will contain a "classified Annex" that apparently will permit coercive forms of interrogation of certain categories of detainees that the Manual has previously long prohibited.

The second, and more important, provision of the McCain Amendment is not limited to detainees in DoD custody. It would provide that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."

This provision would set a baseline prohibition for military interrogators -- but it would not materially alter the law under which such military personnel currently operate. The Uniform Code of Military Justice (UCMJ) already prohibits the Armed Forces from engaging in cruelty and maltreamtent, as well as assault and the threat of assault. Moreover, the federal assault statute (18 U.S.C. 113) prohibits assault within the special maritime and territorial jurisdiction of the United States; and this prohibition applies even outside the special maritime and territorial jurisdiction when committed by persons employed by or accompanying the Armed Forces (by virtue of the Military Extraterritorial Jurisdiction Act (MEJA)).

For approximately 14 months, from November 2002 until at least December 2003, the military acted on the view that it was not bound by such statutes, presumably based upon an OLC conclusion (in, e.g., a March 2003 memorandum of John Yoo) that such laws unconstitutionally impinge on the President's powers as Commander in Chief. Most of the atrocities within the military that have come to light -- including at GTMO and in Abu Ghraib -- occurred during this 14-month period. But it now appears that OLC rescinded its key advice in December 2003, and that subsequently the Administration has conceded that military personnel are bound by the UCMJ and these other federal statutes. It's unlikely that the McCain Amendment would go further to restrain the military than do these pre-existing statutes. And to the extent the Administration would continue to assert the authority of a Commander-in-Chief override, such a presidential override would also be asserted vis-a-vis the McCain Amendment.

But where the McCain Amendment truly would have bite is with respect to the CIA. That's because the UCMJ, the federal assault statute and the MEJA do not apply to the CIA's interrogation of detainees outside the U.S. and outside the special maritime and territorial jurisdiction of the U.S. -- i.e., at the "secret facilities" at which the CIA is detaining certain suspects. [UPDATE: An astute reader notes that in late 2001, the PATRIOT Act amended the SMTJ statute (18 U.S.C. 7) so that the definition now includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership." I'm not sure why this amended definition of the SMTJ wouldn't include CIA "special facilities" -- whatever and wherever they may be. And if the CIA "secret" facilities in foreign lands are covered as within the SMTJ, then I'm not quite sure how it is that DOJ could have given the CIA a green light to engage in, e.g., waterboarding (any version of it), or mock burial: Wouldn't such acts be unlawful assaults?]

Moreover, in a very important legal move, the Department of Justice has determined that the CIA also is not bound by the requirement of Article 16 of the Convention Against Torture that the U.S. act to prevent acts of cruel, inhuman or degrading treatment in any territory under U.S. jurisdiction -- because, in DOJ's (untenable but operative) view, Article 16 does not apply outisde the U.S.

What this means, as a practical matter, is that the Administration has given the CIA the green light to engage in all forms of coercive interrogation short of "torture" proper.

-- That's why, in the infamous 2002 "Torture Memo," OLC's objective was only to inform the CIA of what the federal anti-torture statute prohibited, and why OLC believed it could ignore all other legal constraints and specifically distinguish "torture" from conduct that is "merely" cruel, inhuman and degrading (DOJ having concluded that the CIA could employ the latter).

-- That's why, in his confirmation proceeedings, the Attorney General represented that "some" techniques from among waterboarding, use of dogs to induce stress, forced nudity, hooding, sensory deprivation, food and sleep deprivation, exposure to extreme temperatures, a face or stomach slap, the forcible injection of mood-altering drugs, mock executions, and threatening to send detainees to countries where they would be tortured, "might . . . be permissible in specific circumstances, if appropriately limited, depending on the nature of the precise conduct under consideration"; and why Judge Gonzaels could not ensure the Senate that reported practices such as forced enemas, infliction of cigarette burns, and binding detainees hand and foot and leaving them in urine and feces for 18-24 hours, are legally off-limits.

-- That's why, just a few weeks ago, Tim Flanigan (then the nominee to be Deputy Attorney General) wrote to the Senate that he was unwilling to say whether waterboarding -- "intentionally inducing a detainee's perception of suffocation" -- is unlawful, because that "depends on all of the relevant facts and circumstances."

-- That's why DOJ reportedly has informed the CIA that it may, outside the U.S., lawfully use extreme methods such as waterboarding, the threat of live burial, and threatening rendition to sadistic interrogators in other nations -- and why the CIA reportedly has used at least some of these techniques in its interrogations.

-- And that's apparently why the CIA believed that it was entitled, along with a small team of the CIA-sponsored Iraqi paramilitary squads code-named Scorpions, to assault a detainee with fists, a club, a length of rubber hose, and the handle of a sledgehammer. (Senator Stevens apparently intends to exempt foreign agents of the U.S. such as the Scorpions, from the McCain prohibition, too: they are, in his words, persons who "may not be citizens of the United States, but are working for us.")

The Congress has not, to this point, ever specifically approved of the Administration's view that the CIA is entitled to engage in cruel, inhuman and degrading treatment overseas (outisde the special military and territorial jurisdiction). Of course, that hasn't stopped the Administration from acting in accord with that legal conclusion -- but it has meant that the legal landscape is somewhat uncertain, and such uncertainty (in John Yoo's words) "muddies the water," which in turn may make the CIA somewhat more reticent about engaging in conduct that might, after all, be unlawful. [UPDATE: In the original posting, I added a parenthetical suggesting that a violation of the McCain Amendment would be a war crime. It wouldn't -- not, anyway, unless the conduct also violated Common Article 3 of the Geneva Conventions. Nevertheless, I assume the CIA would be unwilling to engage in conduct that is clearly prohibited by statute -- and apparently Vice President Cheney agrees, or else he wouldn't be fighting the McCain Amendment with such vigor.]

But if Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment's otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration's view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces.

Accordingly, it is imperative that those Senators and Representatives supporting the McCain Amendment must resist any effort to "augment" the Amendment with a CIA carve-out.
Posted 7:19 AM by Marty Lederman [link] (18) comments

White House Changes Course on Miers Nomination

JB

This Washington Post article suggests that the Bush White House has finally figured out the correct strategy for promoting a stealth candidate: emphasize her qualifications rather than send signals about her ideology. The reasons why this is the better strategy for a stealth candidate are detailed here. The basic idea is that stealth candidates are most likely to be successful when their qualifications are impeccable and their ideology is fuzzy; when their qualifications are doubtful, they tend to lose votes not from the opposition but from the President's allies. That is precisely what we have seen with the Miers nomination.

Is it anything more than spin at this point to claim that Miers is qualified for the Supreme Court? Perhaps. Most people don't recognize that the majority of the Supreme Court's docket does not involve the sorts of constitutional issues that regularly draw attention in the press but rather consists of fairly technical statutory and administrative law questions. With respect to these cases, a lawyer with long experience in the business world is surely as competent as many experts in constitutional law.

Nevertheless, it may be too late to convince the public and the Senate that Miers' qualifications are truly excellent. Miers' qualifications pale in comparison to John Roberts, and conservative pundits have been arguing that she lacks the necessary experience and intellectual heft to be a Supreme Court Justice. At this point, the most that the Bush White House can do is convince people that she is not unqualified. Whether that will be enough to secure her appointment is anyone's guess.

Posted 11:35 PM by JB [link] (6) comments

Cronyism is Bad, But This is Worse

Brian Tamanaha

Cronyism in the Bush Administration has gotten much of the attention in the aftermath of the failures of FEMA and the nomination of Ms. Miers to the Supreme Court. The focus on cronyism, while a legitimate concern, is a distraction from a much more serious and pervasive effort by the Bush Administration.

According to one detailed report, the Bush Administration appointed former lobbyists, lawyers, or spokespersons to more than 100 high level administrative positions with oversight authority over industries they formerly represented. A number of these individuals went from working as lobbyists, to stints as agency officials in which they undertook regulatory initiatives favorable to industry, and then returned to positions as lobbyists. Rules applicable to high level officials impose a one year moratorium on lobbying, but during this period they are able to work as consultants and lawyers.

At the direction of these appointees, policy initiatives, rule changes, agreements, enforcement actions (or their cancellation or settlement) were implemented by government agencies on terms unquestionably advantageous to industry. FDA lawyers actively appeared in private law suits on behalf of pharmaceutical companies being sued for harm caused by inadequate warnings, arguing in defense of the companies that the FDA has final say over what warnings had to be given. Interior Department attorneys entered an extremely favorable settlement for ranchers who had numerous grazing violations on federal land. An industry supported labor department alteration in the meaning of “management” resulted in several million employees immediately falling outside of federal requirements that mandated overtime pay. The EPA issued a rule change that eased the application of Congressional mandates that coal burning power plants and oil refineries upgrade their facilities to reduce pollution, saving industry hundreds of millions of dollars (and within days of the change, two key agency employees resigned, one to work for a utility company and the other to work as a lobbyist). There are more examples. In several instances agency officials implemented the very same proposals they previously had promoted as lobbyists.

Of particular concern is effort to slant scientific studies to favor the ideological or policy preferences of the Bush Administration. A core justification of the administrative system is the need for scientific expertise to help inform and achieve policy objectives. Respected scientific journals (Scientific American, Science, Nature) have expressed alarm about the politicization of science by Bush agency appointees so extensive and systematic that it has compromised the scientific integrity of the agencies. Advisory boards were stacked with people with strong industry ties; research scientists with years of independent study were replaced by scientists who worked for the industries regulated; research findings unfavorable to industry interests were omitted or deemphasized in reports. The scientific issues affected by these political actions range from setting the danger level of lead exposure for children to specifying the environmental consequences of oil drilling in Alaska. Conservative religious views influenced agency statements to downplay the benefits of condom use as a means to prevent sexually transmitted diseases, to distort the (non-)connection between abortion and breast cancer, to delay the release of the morning after contraception pill, and to shape health policies related to HIV prevention programs for gays.

An example of science being twisted by policy was the saga of the E.P.A.’s 2003 Report on the Environment, touted by the Bush Administration as the most comprehensive and scientifically sophisticated overview of the environment ever produced by the government. An initial draft of the report discussed studies on the possible human contribution to global warming, referring to a report by the National Academy of Sciences. After the draft was reviewed at the White House, this was excised and replaced by reference to a study funded by the American Petroleum Institute which questioned the evidence on climate change. When the edited draft was returned to the E.P.A., internal objections were raised that it was inconsistent with the scientific consensus on climate change. In the end the entire discussion of global warning was omitted from this purportedly comprehensive report.

The main negative consequence of cronyism is that it can place less competent or poorly qualified persons in important government positions—which is pretty bad. This systematic effort of the Bush Administration to take over administrative agencies through its appointees is worse because it threatens to destroy the integrity of the government.

The notion of “industry capture” was once a scandalous idea, but has since become passe. Then public choice theory came along and suggested that industries actually like regulation, which they buy and sell (literally) for their benefit. Naysayers dismissed these ideas as overly cynical, paranoid, or knee-jerk anti-industry. The actions by the Bush Administration make the once extreme-sounding public choice theory appear quite plausible. Perhaps that is because the cynical assumptions posited by public choice theory about the motives of political actors are in fact correct when applied to this batch of political actors.

Unless one believes that what is good for industry is, ipso facto, good for America, these actions must be alarming. But their mention in the press seems to elicit a big yawn—as if it’s boring to be reminded of this stuff. Perhaps we have collectively given up on the ideal that government officials have an obligation to preserve the public trust.
Posted 3:18 PM by Brian Tamanaha [link] (8) comments