The Unsolicited Caveats, Commentaries, and Criticism of a Federal Law Clerk

 

Unpublished Opinions in the Fifth Circuit:
A Preview of Coming Attractions

How Appealing reports that the Fifth Circuit Court of Appeals will shortly make its unpublished opinions available via the court’s website. Currently, there are three ways to obtain the Fifth Circuit’s unpublished opinions: (1) by specific request via the Clerk’s Office (i.e., by requesting a particular case by name and number); (2) by requesting a copy from the Fifth Circuit Library; or (3) via online databases like Westlaw.

The first two ways of obtaining the appellate court’s unpublished opinions require payment of a fee. The Library only has those opinions released since 1974. Westlaw does have a separate database for unpublished Fifth Circuit opinions (“CTA5U”), but it is far from complete. Indeed, much of the CTA5U database appears to consist of (a) opinions that are slated for publication but have yet to be formally published in the Federal Reporter, and (b) table decisions that do not include the text of the actual opinion.

The Fifth Circuit’s decision to make its unpublished opinions more readily available is not necessarily voluntary. The E-Government Act of 2002 (Pub. L. 107-347, 116 Stat. 2899) requires all federal appellate courts to make their unpublished opinions available via their websites in the near future.

In the meantime, the Advisory Committee on Appellate Rules of the Judicial Conference of the United States has drafted a proposal that would allow the unfettered citation of so-called unpublished opinions. The draft rule apparently does nothing to alter the circuits’ various rules that render unpublished opinions non-precedential in character. For some, such half-measures may not be enough. See Williams v. Dallas Area Rapid Transit 256 F.3d 260, 260-63 (5th Cir. 2001) (Smith, J., joined by Jones, J., and DeMoss, J., dissenting from denial of rehearing en banc) (questioning constitutionality of Fifth Circuit’s no-citation rule), cert. denied, 534 U.S. 1042 (2001); Community Visual Communications, Inc. v. City of San Antonio, 148 F. Supp. 2d 764, 773-75 (W.D. Tex. 2000) (Biery, J.), (calling for reconsideration of same rule).

Setting aside the constitutionality and wisdom of rendering court opinions non-precedential, it is not clear what effect the conjunction of free availability and potential citability of unpublished opinions will have in the Fifth Circuit. At first blush, it seems as if the juxtaposition of the E-Government Act and the Advisory Committee’s proposed rule could be quite significant. In 2002, the Fifth Circuit released a total of 4,019 opinions, of which 3,401 (or approximately 85 percent) were unpublished.

On reflection, however, it is primarily the increased availability of unpublished opinions that is potentially consequential. This is because the Fifth Circuit’s present unpublished opinions rule does not really contain a strict no-citation component.

Fifth Circuit Rule 47.5 governs publication and citation of appellate opinions. Rule 47.5 divides unpublished opinions on the basis of the effective date of the rule. Pre-1996 unpublished opinions are, in fact, precedential. 5th Cir. R. 47.5.3. Strangely, however, the rule goes on to indicate that such opinions may not have “precedential value”—otherwise they would have been published—and therefore discourages, albeit does not forbid, citation thereto. See id. (stating that such opinions “should normally be cited only” in limited circumstances, such as to demonstrate res judicata). In contrast, post-1995 opinions are not precedent, except for purposes such as res judicata. 5th Cir. R. 47.5.4. Nonetheless, a post-1995 “unpublished opinion may . . . be persuasive” and “may be cited.” Id. In all submissions to the court of appeals featuring citations of unpublished opinions, copies of said opinions must be included with the filing. 5th Cir. R. 47.5.3-.4.

Thus, the unavailability of Fifth Circuit opinions is the real obstacle to citation at present. The Advisory Committee’s proposal would remove all doubt as to the citability of unpublished opinions in the circuit, but a good lawyer can already make the case that a any particular pre-1996 opinion falls outside the “normally” limitation and that any given post-1995 opinion is persuasive. Restricted access is the key restraint on citation within the Fifth Circuit.

Nonetheless, lawyers would doubtless be happier with a free citation rule of the sort that the Advisory Committee is proposing. On the other hand, if Circuit Judges have been correctly assessing the criteria for publication, see 5th Cir. R. 47.5.1, then this trove of unpublished opinions will not contain much treasure. Thus, in the end, the increased access to unpublished opinions could also potentially have little or no effect on Fifth Circuit practice. It would appear that only time will tell . . .

posted by Curmudgeonly Clerk at 11:27 PM

 

What Is Good For the Goose . . .

Glenn Reynolds and others have been grousing about the Rave Act ever since Sen. Biden (D.-DE) slipped this particularly misguided anti-drug measure into the law.

Well, now the chickens have come home to roost. Walter Olson has noticed this story in the Sacramento Bee that details a rave-related civil suit against the United States government that is premised on the very same sort of vicarious liability that the government would impose in the criminal context via the Rave Act in prosecuting the proprietors of rave venues.

Do take a gander at the stories linked above for yourself.

posted by Curmudgeonly Clerk at 3:28 PM

 

Nguyen v. United States:

How Appealing points to the majority opinion and dissent in Nguyen v. United States, 539 U.S. ___ (2003). The 5-4 decision with an atypical line-up (Stevens, O’Connor, Kennedy, Souter, and Thomas in the majority; Rehnquist, Scalia, Ginsburg, and Breyer dissenting) vacated a Ninth Circuit judgment because the three-judge appellate panel included an Article IV territorial judge.

The obvious constitutional question (i.e., whether a non-Article III judge may sit by designation on an Article III appellate panel) went unaddressed. The majority confined itself to holding that said designation contravenes the statutory jurisdictional provisions established by Congress:

[28 U.S.C.] Section 292(a) does not permit any assignment to service on the courts of appeals of a district judge who does not enjoy the protection set forth in Article III.

The dissenters agree with the majority’s statutory analysis, but would nevertheless affirm. Rehnquist et al. would hold that the defendants below had forfeited all but plain error review. Accordingly, though the improper appellate empanelment constitutes plain error, the dissenters would find it harmless and affirm, because

. . . there is no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Having dispensed with the statutory claim, the dissenters would also address the constitutional issues. But they provide no view as to their merits. The dissenters would disregard entirely an argument premised on the Appointments Clause (Art. II, Sec. 2, cl. 2) that was neither raised below nor in the petition for certiorari. As with the statutory issue, they would hold that the petitioners had forfeited all but plain error review of the Article III issue as well.

The government offered three arguments as to why the Court should not adopt the position embraced by the majority. First, the United States appears to have argued that the defendants had entirely waived the issue, thereby precluding all possibility of relief in the Supreme Court. Second, the government made the forfeiture/plain error argument that the dissenters found persuasive. Third, the government argued that a quorum of two Article III judges in judgments that were unanimous was sufficient to satisfy any statutory and/or constitutional concerns.

In rejecting the government’s third argument, the majority makes two arguments. The majority acknowledges that a quorum of two is sufficient for appellate court judgments. However, it first cites three cases dating from 1893, 1913, and 1960 respectively for the proposition that the judgments of an improperly constituted court of appeals panel may be vacated notwithstanding a valid quorum. See United States v. Am.-Foreign S.S. Corp., 363 U.S. 685 (1960) (vacating judgment in which senior circuit judge took place in en banc consideration of case); William Cramp & Sons Ship & Engine Bldg. Co. v. Int’l Curtiss Marine Turbine Co., 228 U.S. 645 (1913) (involving statute that precludes district judges from sitting on appellate panels by designation in cases over which they presided at the trial court level); Am. Constr. Co. v. Jacksonville, T. & K. W.R. Co., 148 U.S. 372 (1893) (same). As the dissent correctly points out, these cases are readily distinguishable on multiple grounds (i.e., the first case did not involve a forfeiture of appellate rights, the second and third cases predate the advent of plain error doctrine, and the statutory commands violated in all three cases are substantially clearer than the one at issue in Nguyen).

Even the majority seems to acknowledge the tenuousness of applicability of the three foregoing cases by placing greater emphasis on its second argument. Justice Stevens writes that, notwithstanding the valid quorum, the statute concerning empanelment in appellate proceedings (28 U.S.C. Sec. 46(b)) requires the designation of three proper judges in the first instance. Or rather, Stevens writes:

It is “clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate,” but it is less clear whether the quorum statute offers postjudgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under §292(a). Thus, although the two Article III judges who took part in the decision of petitioners’ appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners’ appeals by a properly constituted panel organized “comformably to the requirements of the statute” (internal citations omitted).

What I find “highly doubtful” is the majority’s dubious reasoning process in the preceding excerpt. Because of “doubt” as to whether the two-judge quorum is statutorily sufficient, the majority vacates two judgments that were unanimous and about which there is no real doubt. But if this particular concern really forms the basis for the Court’s vacatur, is it not obligated to consider and actually resolve the issue of whether a two-judge quorum absolves improper empanelment rather than espousing mere misgivings or conjectural uncertainty? The majority’s argument amounts to positing that there might be a statutory problem and on this basis concludes that the judgments below cannot stand. Q.E.D. this is not. The majority’s reasoning is more like “good enough for government work.”

posted by Curmudgeonly Clerk at 2:48 PM

 

Corporate Law Blog:

One of the things that I have begun to notice about blogging is that it is practically a part-time job. Just keeping track of all the other bloggers is quite a task. The up-side is that someone is blogging about practically everything of interest in the legal world these days.

Speaking of which, the Corp Law Blog, a site devoted to corporate securities, murders and executions has moved to the indicated URL.

And many thanks to the Corp Law Blog for linking to my humble site as well.

posted by Curmudgeonly Clerk at 11:40 AM

 

Many Thanks:

Thanks to SW Virginia Law Blog for the link.

Irrelevant Aside:

My only personal experience with Virginia was a summer that I spent in Colonial Heights (near Petersburg) when I was fourteen-ish. I cannot say that it was an altogether pleasant experience, but one can hardly hold an experience in Southeast Virginia against a Southwestern blogger.

posted by Curmudgeonly Clerk at 2:54 PM

 

Double Negatives in Legal Writing:

Howard Bashman points to this editorial in The Washington Post by Dusty Horwitt that chides lawyers for use of the double (and triple and even quadruple) negative in legal writing.

The use of the double negative is not regarded as standard in modern English by language authorities. See, e.g., Diana Hacker, A Pocket Style Manual 116 (1993) (“Standard English allows two negatives only if a positive meaning is intended: The runners were not unhappy with their performance. Double negatives used to emphasize negation are nonstandard: Jack doesn’t have to answer to anybody [not nobody]. Negative words that fall within the compass of this rule are “no, not, none, never, neither, nothing, nowhere, and nobody” and also includes the use of adverbs like “hardly or scarcely in conjunction with negatives.” Richard K. Corbin et al., Guide to Modern English 395-96 (1965).

But adherence to these rules is hardly universal. For example, the double negative enjoys wide usage in colloquial English in indicating negation. See The American Heritage Book of English: A Practical and Authoritative Guide to Contemporary English Double Negative Sec. 23 (1996) (“These famous examples of double negatives that reinforce (rather than nullify) a negative meaning show clearly that this construction is alive and well in spoken English.”). Such usage has a fairly distinguished pedigree, dating back to the Tenth Century; writers such as Chaucer and Shakespeare have put the double negative to good use in reinforcing a negative. Id. The rule against employing double negatives in this sense is of fairly recent historical vintage, developing in the Renaissance. Id.

Thus, I think that the use of the double negative in legal writing is most likely attributable to past usage. Lawyers are a precedent-bound class. We learn by example, and the more venerable the example the better. Or so the thinking goes. Consider, for example, the archaic English phrasing and usage that one often comes across in complaints and affidavits. Indeed, the decreased use of Latin maxims is a relatively recent trend in American legal writing.

Thus, the widespread use of the double negative in legal writing is not inexplicable. And occasionally it is even felicitous. But there is something to Horwitt’s criticism. Improper use or overuse of double negative detracts from clarity and clarity is the sine qua non of good legal writing. Pleadings, motions, or briefs that fail to convey are useless notwithstanding the merit of the claims they advance.

But it is also necessary to be mindful of what the rule regarding double negatives does not forbid. As the American Heritage Book of English notes, “[t]he ban on using double negatives to convey emphasis does not apply when the second negative appears in a separate phrase or clause, as in I will not surrender, not today, not ever or He does not seek money, no more than he seeks fame. Id. One often finds that armchair grammarians are overzealous in the application of the rules. While we are retiring precedents that no longer recommend themselves to legal writers, let’s not purge usages that do not actually fall within the scope of the rule.

posted by Curmudgeonly Clerk at 1:50 PM

 

Burkean Constitutionalism:

A reader writes in with some interesting observations contra my recent assertion that adherence to principles of stare decisis bolsters the legitimacy of the judiciary:

Keep in mind that stare decisis does not come without its own cost to the judiciary's legitimacy, among those who measure it's legitimacy by how closely it's rulings agree with the actual text they claim to be based on. A cost which can only rise as the accumulation of realist rulings causes that gap to become ever more glaring. One can, of course, debate how large a portion of the population falls into this category. I would only point out that Americans cherish their Constitution, (And we don't carry around copies of the court rulings in our breast pocket, we carry copies of the text!) and there must be SOME limit to how large that gap can get without serious consequences. If you don't think we've already got serious consequences . . .

* * *

. . . . I view the accumulation of realist rulings in the judiciary as being an entropic process, akin to aging. . . .

Although this view is not implausible, I think it is mistaken for a couple of reasons.

It seems to me that the “entropic process” criticized above is the very process that the Framers incorporated into our form of government. In insisting on an independent judiciary, see Federalist No. 78, the Framers purposely included the common law system within the framework of the new national government. That is, the “case or controversy” decision-making mechanic is built into the Constitution via Article III’s grant of “[t]he judicial Power.” Case-by-case constitutional adjudication is the essence of the federal judicial function. So the complaint cannot be with the act of interpretation itself, but rather how the Constitution has been interepreted.

I take it that my correspondent sees today’s jurisprudence as being far removed from what was intended by the Framers. I am not so sure. For one thing, discerning the intentions of the Framers is not an easy undertaking. Numerous obstacles exist. First, we must determine whose views are to be consulted. That is, which individuals played a central enough role in the drafting of the Constitution for their views to be relevant and material. Second, do the views of the men who merely ratified the Constitution at the state level count as well? Their acts did render the Constitution binding, after all. But adding this level of complexity to our task is daunting. For this reason, jurisprudes like Justice Scalia are skeptical regarding assertions about congressional intent. Attempting to assign central, dispositive reasons to a plethora of individuals is no easy task. Once we have decided the relevant pool from which to draw, how much weight are we to assign to any particular view or individual? For articulations of these views, see generally Boris I. Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 Cal. L. Rev. 235, 250-51 (1089); 1 The Founders’ Constitution xi-xii (Philip B. Kurland & Ralph Lerner eds., 1987)

Bear in mind also that the debates at the Philadelphia Constitutional Convention were closed. Once the records of the convention were finally published in 1819 or thereafter, they were found to be “ambiguous, fragmentary, and contradictory.” Michael L. Wells & Edward J. Larson, Original Intent and Article III, 70 Tul. L. Rev. 75, 99 (1995). Moreover, a great deal of what we know of the Convention comes from an account by James Madison that was not released until 1840 and may have been altered over time to reflect his own changing views of the Constitution. Ronald D. Rotunda, Original Intent, the View of the Framers, and the Role of the Framers, 41 Vand. L. Rev. 507, 510 (1988); Daniel A. Farber, The Originalism Debate: A Guide For the Perplexed, 49 Ohio St. L.J. 1085, 1088 (1989).

In other words, determining what the Constitution originally meant is no small task. Consequently, demonstrating that we have drifted from its original moorings is quite an undertaking as well.

But a more important point needs to be made as well. Citizens can carry around a copy of the Constitution in the breast pocket of their coats because it merely establishes our federal government in outline, leaving the details to be filled in over time. We broke with our English heritage by embodying our Constitution in a written document. But the document is cursory and leaves substantial room for interpretation. I would suggest that, like the English Constitution, the American one is prescriptive in nature: current practice in conjunction with long usage comprises constitutionality so long as said usage does not flatly contradict the minimalist terms of the written document. Our Constitution has certain fixed principles but its details are “made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil, and social habitudes of the people, which disclose themselves only in a long space of time.” Edmund Burke, Speech Before the House of Commons (May 7, 1782).

The common law method of case-by-case adjudication lends itself to this evolutionary process. The American Constitution functions precisely because it is has evolved over time in response to real conditions and circumstances. Only when this evolution contravenes the express terms laid out in the Constitution can it be said to be unconstitutional. But because of the terseness of the document, the frequent ambiguity of its terms, and the indeterminacy of the Framer’s intentions, it will often be difficult to demonstrate the unconstitutionality of contemporary practices in any meaningful way.

posted by Curmudgeonly Clerk at 1:50 PM

 

Legal Ethics Blawg:

David Giacalone, a retired attorney and mediator, has recently started a much-needed blawg devoted to the topic of legal ethics.

posted by Curmudgeonly Clerk at 1:12 AM

 

Is Senate Rule XXII Utterly Without Merit?

I understand the political motivations of Senate Republicans who want to reform the filibuster. What I don’t understand is Timothy Noah’s concurrence.

Noah argues that Democrats ought to embrace a GOP proposal that would emasculate Senate Rule XXII. The Republican proposal would effectively turn it into a mere extended debate clause.

Noah’s argument strikes me as curious to say the least. He writes:

But in the latest volume of [Robert] Caro’s Johnson biography, Master of the Senate, the filibuster isn’t portrayed as sometimes good and sometimes bad. It is shown (accurately) to be unambiguously bad. He refers to it as the Senate’s “peculiar institution,” which of course is an allusion to slavery. He shows how it was repeatedly used to protect Jim Crow. He crafts a hero narrative around Senate Majority Leader Johnson’s dazzling triumph over various rococo Senate obstructions to pass the first civil rights bill in nearly a century. Surely Caro grasps that the larger lesson isn't the greatness of Lyndon Johnson. It’s that it shouldn't take somebody of unparalleled legislative genius to make the rusty machinery of the Senate do what the country demands.

How or why these incidents pertaining to one issue translate into a conclusion that the filibuster is always and unambiguously bad escapes me. One can certainly make the argument that these particular uses of the filibuster were inappropriate on the merits. That’s an argument that I am happy to concede.

But it is peculiar for someone sensitive to issues of race and civil rights to evince contempt for an antidemocratic institution in absolute terms rather than merely condemning its misuse. After all, what of the federal courts? They consistently thwarted “what the country demand[ed]” in matters of race. Brown v. Bd. of Educ. ring a bell?

It may be possible to cogently argue that this countermajoritarian role is the unique province of the judiciary and that the political branches (the legislature and executive) ought to obey democratic impulses. But Noah does not indicate any such belief. So what is Noah’s argument?

(Washington Post link above via How Appealing.)

UPDATE:

Erasmus over at Civic Dialogues has some pithy observations about the propriety of Rule 22 and the filibuster in the context of the Senate's historic (and formerly constitutional) role as a brake on the passions of the House. His take is well worth reading and can be viewed here.

posted by Curmudgeonly Clerk at 12:41 AM

 

Federalism and the Commerce Clause:

In response to a little exchange between myself and Timothy Sandefur, he goes where no Justice has gone before and declares that he just thinks the “substantially affects interstate commerce” standard adhered to by the majority in Lopez is bunk. See the original posts here and here.

Justice Thomas has indicated a willingness to reconsider the formulation of the standard applied in Commerce Clause cases. See United States v. Lopez, 514 U.S. 549, 602 (1995) (Thomas, J., concurring) (“At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1,000 feet of a school.”) I think that such reconsideration is ill advised. But this is a proposition about which reasonable people may disagree.

This is probably not a debate that Sandefur and I are capable of resolving in this forum. Blogs have their limits. This sort of complex issue is the stuff of amicus briefs and law review articles.

For the present, I am content with Sandefur’s acknowledgment that he would simply abandon the “substantially affects interstate commerce” standard. Those who believe that the federal drug war is unconstitutional usually just declare it to be contrary to the tenets of federalism without elaboration. Sandefur’s thoughtful posts actually admit that this is an argumentative claim (and go on to make the argument in outline form). Libertarians in particular tend to gloss over the debatable nature of this federalism argument.

Policy Preferences and the Constitution:

Sandefur correctly points out that one need not be a libertarian in order to think that the drug war runs afoul of our constitutionally ordained state-federal bifurcation of authority. However, it seems to me that it is more than a mere coincidence that there is a substantial union between those who oppose the drug war as a matter of policy and those who believe that the drug war is unconstitutional. We human beings are particularly susceptible to thinking that our policy preferences are constitutionally mandated. Consider, for example, the supporters of abortion rights, who are convinced that abortion is enshrined in the Constitution notwithstanding the Supreme Court’s inability to precisely locate that supposed right in any of its opinions upholding the procedure’s constitutional status.

Prigg may not establish libertarian outcomes in general, but the particular application to which Sandefur would put Prigg certainly produces a result that libertarians would applaud. It is presumably not sheer accident that leads Sandefur to cite to Roger Pilon of the libertarian Cato Institute a mere sentence after observing that Prigg is not necessarily libertarian in nature.

None of this invalidates Sandefur’s arguments. I am personally indisposed to psychoanalyze those with whom I disagree on any particular issue. I would rather examine the arguments on the merits and let the chips fall where they may. I note the impulse to assume the unconstitutionality of the drug war among libertarians only to point out that when our policy preferences and constitutional thinking intersect we must all be on guard to distinguish the former from the latter. All too often they tend to perfectly coincide—too perfectly.

The Seamless Web . . .

A reader who does not share my views of federalism and the drug war e-mailed me with the following reaction:

So, today’s “expansive” reading of the Commerce Clause has been precedent for 60 years; back in the 1930’s, how long had the opposite reading been precedent? And IT got overturned!

Honestly, I can't think of any other profession that's so fond of its “mistakes” that it elevates not fixing them to its highest good.

Interestingly enough, this observation coincides with a discussion of stare decisis begun yesterday and continued today over at the Legal Theory Blog, which I initially commented on here. I can understand my reader’s frustration with the application of stare decisis to precedents that were wrongly decided or that are perceived to have been wrongly decided. But stare decisis should not be mistaken for unthinking adherence to prior decisions.

The fact that a different understanding of the Commerce Clause may have prevailed longer than the present expansive reading does not gainsay the fact that at least six to seven decades have elapsed since the advent of the latter. One can make the argument that much of what has occurred since the New Deal is unconstitutional. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994). However, were the Supreme Court to actually declare the administrative state unconstitutional or condemn the present Commerce Clause jurisprudence, our national government would simply cease to exist not only in its present incarnation but in any recognizable form. We’re not talking about a reinvention of government, we are talking about a constitutional revolution. When such consequences loom, the Supreme Court should refrain from reconsidering precedent, even mistaken precedent.

It should also be kept in mind that the balance of power established in the Constitution, both among the national government and the states and amongst the three branches of the federal government, was unexplored territory at the Founding and is crafted in outline only. As Justice Frankfurter noted in a different context:

The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Sec.] 1 of Art. II.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).

The same can be said of Congress and its commerce power enumerated in Art. I, Sec. 8, Cl. 3. It is for this reason that, “[w]ithin the American legal system, arguments that deeply entrenched practices violate the Constitution seldom succeed.” Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 582 (2001). If the multiple intervening decades in which the Commerce Clause has enjoyed greater status do not constitute entrenchment sufficient to guarantee its general constitutionality, then one wonders what period of time might suffice.

Now one could argue that Frankfurter and Fallon are mistaken. But as a purely descriptive matter, our political and constitutional history seem to bear their contentions out. This reduces one to arguing that it should not be so. Perhaps, but such counterfactual premises seem more like wishful thinking than argument. The acceptance of traditional practices is deeply ingrained in human psychology. See John Chipman Gray, Judicial Precedents—A Short Study in Comparative Jurisprudence, 9 Harv. L. Rev. 27, 27 (1895) (“The weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in human nature . . . .”).

Of course, some would go even further with reference to asserting the constitutionality of modern congressional enactments made pursuant to the Commerce Clause. See, e.g., William J. Brennan, Jr., Speech at Georgetown University (Oct. 12, 1985), in The Great Debate: Interpreting Our Written Constitution 17 (The Federalist Society 1986); William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 737 (1949). But one does not need to endorse the theory of a Living Constitution in order to subscribe to an expansive reading of the Constitution. See Antonin Scalia, Common Law Courts in a Civil Law System, in A Matter of Interpretation 37-47 (1997).

Setting aside the constitutional issue, there are persuasive prudential reasons for adhering to long-standing precedents, even if one might regard them as wrongly decided. See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 652-53 (1999) (enumerating “the policies of economy, stability, and legitimacy” as the prudential reasons for adherence to precedent that are recognized by the Court).

Stability in particular is a paramount value served by adherence to precedent. Imagine first a more personal example. Let us say that you have built your home in accordance with various local ordinances regarding zoning, appearance, etc. Assume that shortly after completion of the construction, the rules are radically changed. Now your house is badly out of compliance. All of the rules that you reasonably relied upon are no more. What now?

Judicial precedent works in a similar fashion. Society knows the rules and plans accordingly. Changing legal horses midstream has consequences. One can plan around a bad legal rule (i.e., a wrongly decided case). But one cannot plan at all in a system in which precedents are particularly vulnerable to the proclivities of the rotating cast that makes up the High Court. So unless there is a good reason, courts in general uphold precedents—even arguably wrongly decided ones. Although the case for adhering to precedents may be less compelling with regard to constitutional cases than in cases involving property rights, for example, a serious truncation of Congress’s commerce power would have significant consequences on political and, perhaps, economic stability.

The legitimacy of the third branch of government is also a paramount concern. The members of the Supreme Court are already regarded as self-anointed Platonic guardians and the Court itself as a super-legislature by all too many. It is not difficult to envision how overruling precedents whenever individual Justices thought them ill-considered would further contribute to these views. Therefore, the Court must be circumspect about relegating precedents to the dustbin of history. A return to the jurisprudence of the early, agrarian Republic has undeniable political overtones. A complete volte-face regarding Congress’s commerce power, or any similarly well established constitutional practice, would delegitimize the judiciary. As the courts lack both the power of the purse and the sword, their public esteem is critical to the fulfillment of their constitutional role. Judicial integrity should not be lightly jeopardized.

posted by Curmudgeonly Clerk at 10:26 PM

 

Federalism, Libertarianism, and the Drug War Revisited:

Timothy Sandefur cheers this decision in a federal case against a medical marihuana grower. As someone who sees federal drug sentencings on a routine basis, I would be very interested in perusing the relevant documents and/or any hearing transcripts. Whatever the supposed equity of the sentence, it sounds highly atypical. One wonders if the government will appeal.

As is his wont, Sandefur peppers his discussion with interesting historical details and early Supreme Court precedent. I genuinely admire his erudition and the wealth of knowledge that apparently lies at his fingertips. Nonetheless, I also think that Sandefur very much overstates his case on this occasion.

I have previously evinced some good-natured skepticism regarding libertarian claims about federalism and the drug war. See Federalism Is Not Libertarianism; Federalism and the Federal Drug War. I am equally cautious about Sandefur’s present arguments.

Relying on Justice Story’s opinion in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842), Sandefur writes:

So were California to pass a law prohibiting the arrest of pot-smokers, the application of Prigg would have to uphold such a law, because there is no constitutional authority to regulate drug use or possession.

Well, this is all well and fine—if one is comfortable returning to 1842 in terms of constitutional doctrine. Justice Thomas intimated such a possibility in his concurrence in United States v. Lopez, 514 U.S. 549 (1995), but ultimately rejected such a return to the jurisprudence of yesteryear. Although recognizing that the Court’s “case law has drifted far from the original understanding of the Commerce Clause,” id. at 584 (Thomas, J., concurring), Thomas went on to observe:

Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.

Lopez, 514 U.S. at 601 n.8 (Thomas, J., concurring).

To my knowledge, no other sitting Justice has indicated a desire to undertake such a breathtaking reconsideration. All this is to say that, as an historical matter Sandefur may be entirely correct; nonetheless, he must make do with today’s Commerce Clause. Prigg is now a mere historical curiosity, a precedent from another time and another constitutional order. To set forth other examples, it may be that early Supreme Court cases regarding the federal income tax or state sovereign immunity under the Eleventh Amendment were wrongly decided, but too much water has passed under the bridge at this juncture. Federal income tax dodgers go to jail, and so do folks who violate the federal drug laws.

I think that Sandefur also understates the reach of the pre-New Deal commerce power of the federal government when he states that:

Before the unreasonable construction of the commerce clause took over, the government actually had to amend the Constitution in order to prohibit alcohol.

I have previously discussed why there is some reason to regard Sandefur’s Eighteenth Amendment argument with some caution here. For starters, it appears that Congress effectively thwarted state regulation of interstate alcohol transport via what has become known as the Dormant Commerce Clause prior to the enactment of the Eighteenth Amendment. See, e.g., Rhodes v. Iowa, 170 U.S. 412 (1898); Vance v. W.A. Vandercook Co., 170 U.S. 438 (1898); Am. Express v. Iowa, 196 U.S. 133 (1905). Moreover, via the Webb-Kenyon Act of 1913, Congress disallowed interstate shipment of alcohol into “bone-dry” regions (i.e., areas that did not permit alcohol even for mere personal use). So Congress clearly exercised its ability to regulate alcohol via the Commerce Clause well before the enactment and ratification of the Eighteenth Amendment. What the Eighteenth Amendment was apparently designed to accomplish was to allow the federal government to regulate alcohol even in the absence of an interstate nexus. See generally W.J. Rorabaugh, Reexamining the Prohibition Amendment, 8 Yale J.L. & Human. 285 (1996) (reviewing Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Univ. of N.C. Press 1995)).

Now my grasp of the history involved is meager, so I would not swear to the foregoing analysis. But what little I know counsels skepticism regarding libertarian invocations of federalism and the Eighteenth Amendment in the context of the federal drug war. Perhaps, one might successfully mount a defense to the federal drug laws on the grounds that a genuine nexus with interstate commerce is lacking, that the Controlled Substances Act, 21 U.S.C. Sec. 841 et seq., exceeds the compass of Congress’s Commerce Clause authority. I take it that this is the very direction in which Sandefur's argument is headed.

This apparently remains an open question as per the unanimous opinion of Justice Thomas in United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001). Thus far, however, there is nothing to indicate that the Act violates the federal government’s legitimate commerce power. Moreover, it would seem that Congress's foray into this field would have to satisfy no more than the "substantially affects" test. Lopez, 514 U.S. at 559. That's hardly a challenging standard.

posted by Curmudgeonly Clerk at 1:39 AM

 

Abortion and Moral Disquiet in Six Feet Under:

After Abortion links to this review in The Boston Globe of Six Feet Under’s season finale, which was broadcast this past Sunday. The review, penned by Matthew Gilbert, included this snippet:

Claire’s journey to heaven with her father was particularly awkward. It offered a poignant moment, as she sees her troubled former boyfriend, Gabe, finally at peace, but it also raised a gnawing question. Claire encounters her baby in heaven, supposedly the child she gave up a few weeks back in an abortion-clinic sequence that had horrific cattle-call overtones. By presenting Claire’s “choice” as a baby, was Ball trying to make a big statement about fetuses and the morality of abortion? Or was he showing Claire resolve her own guilt, as the ghost of Lisa agreed to care for the ghost of Claire’s boy? It was a distracting issue.

Ah yes, those darn distractions.

I am a regular viewer of Six Feet Under. The show is primarily successful for the same reason that traffic slows down in the vicinity of an accident even when the road is not obstructed: the morbid desire to gaze upon a horrible wreck. No one in his right mind identifies with characters like Brenda (or her even loopier brother, Billy); we gawk at them.

But not all of the show’s characters are as hopeless or reprobate. Nor is the series completely without art or substance. Its portrayal of abortion has been nuanced and thoughtful, which is why the “distracting” comment by Gilbert is so jarring.

Gilbert writes that the subplot is “distracting,” but his intendment seems to be more along the lines of “discomfiting.” And it is. Six Feet Under pulls no punches regarding abortion. There is an utter absence of religious preaching or overt politics. It simply portrays the procedure and its immediate aftermath with an understated clinical grimness. As Amy Welborn notes, the subplot, which stretches over the final two episodes of the third season, leaves viewers with an overall impression of “subtle, indifferent horror.”

Planned Parenthood has apparently bestowed an award on either the show or one its writers, which leads me to wonder whether anyone at Planned Parenthood is actually watching. Even the show’s writers were incredulous in this regard. One, Nancy Oliver, related that, “[w]hen we heard that we'd been given this award by Planned Parenthood, we thought it was a mistake.”

These last two episodes of the season are not the first ones to explore abortion either. Previously, there was an episode in which Nate Fisher was haunted by specters of several children that he had fathered by various girlfriends who never carried them to term, opting to abort instead. The scene was relentless and without mercy, as they serially placed the responsibility for their demise on his shoulders. If memory serves me correctly, I recall one pretty little girl stating that she would have been seven (or so) if he had not had her murdered.

The effect was flabbergasting. I was alternately electrified and dazed. It was startling to see abortion portrayed in such a fashion. In the entertainment industry, depictions of abortion are seldom this raw and disquieting. In this vignette, Six Feet Under offered no comfort and paid no lip-service to the rhetoric of choice. Instead it presented the consequences of choices made—without flinching and without qualification.

Later in the episode, Nate reconciles his present self with his disturbing past in a flippant manner that robs the prior scene of much of its force. But for a brief moment, the stark reality of abortion and the guilt and regret that follow in its wake were presented in an honest and compelling fashion. The last two episodes return to this troubling theme with Claire.

It is no wonder that Gilbert finds this return to the subject of abortion to be “distracting.” Recourse to Roe v. Wade is unavailing. The law cannot answer the questions that Six Feet Under is raising.

posted by Curmudgeonly Clerk at 12:00 AM

 

Strong Horizontal Stare Decisis:

Professor Solum has a characteristically thoughtful discussion of precedent in which he argues in favor of strong horizontal stare decisis in courts of last resort. That is, Solum argues that, ceteris paribus, supreme courts ought to abide by the decisions of their own institutional forebears. As Solum acknowledges, his argument is much more controversial than the proposition that lower courts ought to be constrained by the decisions of their respective courts of last resort (i.e., vertical stare decisis).

Even the most ardent proponents of precedent do not generally advocate so binding a rule of precedent as the one proposed by Solum. (Now Senior) Circuit Judge Arnold has written, in a different context, that:

Finally, lest we be misunderstood, we stress that we are not here creating some rigid doctrine of eternal adherence to precedents. Cases can be overruled. Sometimes they should be. On our Court, this function can be performed by the en banc Court, but not by a single panel. If the reasoning of a case is exposed as faulty, or if other exigent circumstances justify it, precedents can be changed. When this occurs, however, there is a burden of justification. The precedent from which we are departing should be stated, and our reasons for rejecting it should be made convincingly clear. In this way, the law grows and changes, but it does so incrementally, in response to the dictates of reason, and not because judges have simply changed their minds.

Anastasoff v. United States, 223 F.3d 898, 904-05 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000).

However, Judge Arnold’s articulation is not incompatible with Professor Solum’s thesis. Even the good professor disowns any “rigid adherence to precedent.” Solum does, however, add that he believes such overruling ought to be rare—much rarer than it is today (i.e., that the federal and state supreme courts ought to adhere to their own precedents a great deal more than they presently do).

At the level of theory, Professor Solum’s argument is not without appeal. But in application it promises to be very difficult.

How are courts of last resort to regard prior precedents that are themselves inconsistent with other of the court’s own precedents? For example, when confronted with a past that includes both Nat’l League of Cities v. Usery, 426 U.S. 833 (1976) and Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528 (1985), how does the Court decide whether it ought to overrule the latter? A simple last in time rule? That is, how does one implement Solum’s “strong precedent” in the face of an institutional past that does not feature such a concept?

Do supreme court judges have a duty to acquiesce in constitutional cases in which their considered legal opinion is that a prior court got it wrong? One might read the unconventional opinion authored by Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992) as a practical application of Solum’s “strong precedent.” However, one wonders why Justice Souter refuses to abandon his scholarly dissents in the state sovereign immunity cases if Casey stands for such a proposition. Solum cannot be faulted for various judges’ failures in applying his admittedly “radical” conception of precedent. But I think that Casey, does highlight a real problem with Solum’s theory in application. There is a real demarcation problem inherent to the notion of “strong precedent.”

As previously noted, even Professor Solum does not advocate rigid, eternal adherence to precedent. Nor could he. Such a claim would place him in the position of arguing that courts of last resort confronted with the equivalent of Plessy v. Ferguson, 163 U.S. 537 (1896), should summarily affirm Plessy rather than penning Brown v. Bd. of Educ., 347 U.S. 483 (1954). The result would be a judicial system in which significant constitutional change would be available solely via Article V’s amendment process. Constitutional change has, on occasion, proceeded in this manner. For example, Dred Scott v. Sandford, 60 U.S. 393 (1856) was overruled by adoption of the Thirteenth and Fourteenth Amendments. But Dred Scott hardly commends Article V as a mode of constitutional change, given what was necessary to achieve the aforesaid amendments.

So conceding that it is quite necessary for courts of last resort to be able to inter their most pernicious precedents, how does one decide which ones are pernicious enough to defeat considerations of “strong stare decisis”? What is the threshold, or line of demarcation? Some would, no doubt, view Roe v. Wade, 410 U.S. 113 (1973), as worthy of overruling—even if they generally bought into notions of “strong precedent.” Others might so view Bowers v. Hardwick, 478 U.S. 186 (1986). It seems that even if we all agree on a notion of “strong precedent,” it fails to resolve the legitimacy of contentious constitutional precedents. It may change the terminology of the debate, but Solum’s “strong precedent” does not seem capable of ending legal debate regarding Roe and Bowers.

But more importantly, it does not seem that Solum’s theory even defines a means of identifying the purported Roes of the legal universe and distinguishing them from cases that, however distasteful, do not warrant revisitation. Is Garcia sufficiently terrible? Chief Justice Rehnquist thinks so; or so he wrote in dissent. Does Professor Solum think so? How does he suggest that we arrive at an answer without having the same basic debate about the merits of Garcia that we are already having?

Professor Solum intends to follow up his argument tomorrow and has indicated that he will address some of the foregoing concerns. I am sure that it will be well worth reading too.

posted by Curmudgeonly Clerk at 2:48 PM

 

The Law of Linking:

An article in Monday's edition of the New York Times discusses a lawsuit steming from the posting of the allegedly sordid details of a romantic relationship on the Internet. (Link via Blogcritics.) Tucker Max apparently had nothing nice to say about Miss Vermont, which is not surprising given a brief perusal of the former's site. Among the provisions of an order entered by Judge Diana Lewis (Circuit Court of West Palm Beach) is what amounts to an injunction forbidding Max from linking to Miss Vermont's site. The Times quotes Professor Susan P. Crawford of the Cardozo School of Law at Yeshiva University as charcterizing the linking ban as "kooky":

"To block the ability to link," Professor Crawford said, "is in effect to say her site is her own private property."

Judge Lewis is not alone in her kookiness, however. Businesses like KPMG have effectively made such assertions in the past. And KPMG is not alone either.

Suits seeking to enjoin internet linking have succeeded in other contexts. See, e.g., Zyvex Corp. v. Starkewolfe, No. CIV.A. 302CV0190G, 2002 WL 1359719 (N.D. Tex. June 18, 2002) (unpublished opinion) (granting preliminary injunction that required defendant "to immediately remove all links of the Domain Names to any web site"); but cf. Futuredontics, Inc. v. Applied Anagramics, Inc., 152 F.3d 925 (9th Cir. 1998) (unpublished opinion) (affirming "denial of a preliminary injunction restraining Applied Anagramics, Inc.'s ('AAI') use of a framed link to Futuredontics' internet web site"); DVD Copy Control Ass'n v. Bunner, 113 Cal. Rptr. 2d 338, (Cal. Ct. App. 2001) (discussing trial court's refusal "to enjoin the defendants from linking to other web sites that contained protected information, because the links were indispensable to Internet access and a web-site owner could not be held responsible for the content of other web sites" in trade secret case), superceded, 41 P.3d 2 (Cal. 2002). However, given the First Amendment context of the Tucker Max case, the legal basis for Judge Lewis’s order is dubious at best. Any written decision that she might have issued does not seem to be available over the Internet. (Sounds like a job for The Smoking Gun.)

For the sake of the First Amendment, Judge Lewis’s order ought to be reconsidered. Nonetheless, Max is not a very sympathetic character. And there is no telling whether his now unavailable accounts of his relationship with the beauty queen are even remotely accurate. Max is no stranger to allegations of speech-related misconduct. See Barbara Goffman, Joke Was On Joker: DBA Bars Max From Election,The Duke Law Reporter, Mar. 8, 1999, at 2.

UPDATE:

Tech Law Advisor helpfully points out that, notwithstanding Judge Lewis's order, the story about Miss Vermont that began this sordid mess is still avaliable via Google's cache.

posted by Curmudgeonly Clerk at 10:24 AM

 

Proposed Constitutional Amendment:

In Mars Attacks!, the President of the United States (Jack Nicholson) goes before the American public shortly after extraterrestrial invaders wipe out Congress with the following message of hope: “I want the people to know that they still have two out of three branches of the government working for them, and that ain't bad.”

The blue-ribbon Continuity of Government Commission convened by the American Enterprise Institute and the Brookings Institution in the wake of the September 11th terrorist attacks begs to differ. According to this report by Albert Eisele in The Hill, the Commission is proposing an amendment to the Constitution in order to ensure that the House of Representatives may carry on in the event of a calamity that deprives the House of a substantial portion of its membership:

“Our current constitutional framework does not allow the House of Representatives to be reconstituted quickly after a large number of deaths,” the report by the Continuity of Government Commission concluded. . . . .

“In addition, neither the Senate nor the House is prepared for the possibility of large numbers of their members to be alive, but severely incapacitated and unable to perform their duties. Either of these scenarios could result in no Congress in the months after an attack, or one that is unrepresentative and of questionable legitimacy.”

* * *

The commission said a constitutional amendment is necessary because the Constitution provides only one method, a special election, for filling House vacancies and does not provide an effective way for filling temporary vacancies in the House and Senate that occur when members are incapacitated.

* * *

With most of Congress annihilated, Congress could not function in the absence of a quorum in either the House or Senate, as required by the Constitution.

* * *

The report also noted “the continuity of the Congress and the presidency are intertwined because the President Succession Act includes the Speaker of the House and the [Senate] President Pro Tempore directly after the president and vice president in the line of succession.”

The proposed solution is to authorize state governors to appoint temporary replacements a la the method for appointing interim senators under the Seventeenth Amendment.

The Commission also plans to issue similar reports regarding the executive and judicial branches.

posted by Curmudgeonly Clerk at 2:00 AM

 

Federalism, the Environment, and the Enactment of Treaties:

Professor Jon Reisman of the University of Maine at Machias notes a very interesting federalism problem over at Tech Central Station today. (Link via Instapundit.) The federalism issue that Reisman highlights is atypical in that it features several states trampling on the prerogatives of the federal government. To wit:

. . . . In August 2001 six New England governors signed an agreement with five eastern Canadian premiers to implement their own updated version of the Kyoto Protocol. . . .

The New England Governors/Eastern Canadian Premiers Climate Change Agreement (CCA) is clearly based on the Kyoto Protocol, with carbon dioxide reduction goals of 1990 levels by 2010, 10 percent below that by 2020, and eventually 80 to 90 percent reductions or more. The initial 2010 target requires a 17 percent reduction from current emissions levels.

The constitutional problem with this state-led environmental endeavor is fairly straightforward:

(1) Art. I, Sec. 10, Cl. 1 provides that “[n]o State shall enter into any Treaty, Alliance, or Confederation.”

(2) Art. I, Sec. 10, Cl. 3 further provides that “[n]o State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.”

(3) Art. II, Sec. 2, Cl. 2 vests the power “to make Treaties” in the executive “by and with the Advice and Consent of the Senate.”

Even if Articles I and II were not so clear, one might infer from Art. VI that states are forbidden from such activities. Article VI provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” When juxtaposed with the multiplicity of state sovereignties that exist under the Union, this language might be construed as containing a Dormant Compact Clause as a necessary corollary—in much the same fashion that Art. I, Sec. 8, Cl. 3’s grant of the power “[t]o regulate Commerce with foreign Nations, and among the several States” forbids, by implication, the states from intruding in matters of interstate and international commerce even when there is no particular pertinent federal legislation.

Professor Reisman notes that neither the President nor the Congress have addressed the CCA. But both President Bush and the Senate are on record as being against the Kyoto Protocol, so there is little doubt as to how they would regard the CCA if stirred to action.

Apparently, political considerations have resulted in inaction thus far. It is understandable why the President might be inclined to duck this issue given the mixed public reaction to his decision to repudiate the Kyoto Protocol and the contentiousness of the President’s position on other environmental issues (e.g., ANWR). But the President also takes an oath to “preserve, protect, and defend the Constitution.” Art. II, Sec. 1, Cl. 8. Failure to quash these state-initiated treaties is an abdication of this responsibility.

For the time being, it appears that others will have to raise the issue in the courts.

Further Reading: Professor Reisman has written on this topic on other occasions. His other articles may be found here, here, here, and here.

posted by Curmudgeonly Clerk at 11:14 PM

 

Flirting with Fascism?

In my journeys across the blogosphere, I stumbled across this post at Nolo Consentire that gently mocks a strand of political thought that identifies itself as "National Greatness Conservatism." Italian fascism made rhetorical and ideological use of the phrase "national greatness" as well.

To the best of my knowledge, the phrase (and, perhaps, the idea of) "National Greatness Conservatism" originated with William Kristol of The Weekly Standard.

This coincidence of language is infelicitous, as it offers yet another opportunity for some to indulge their predilection to equate those right of the aisle with World War II's villains. But unless one can demonstrate that the tenets of “National Greatness Conservatism” actually coincide with those of fascism there is little to talk about here. I take it that William Kristol et al. are not preaching the supremacy of the state over the individual or advocating a centralized authoritarian state and state-controlled economy.

Nolo Consentire does not appear to be insinuating any such connection. Rather Nolo simply seems to be delighting in the unintended irony of the usage and, perhaps, the ignorance of those who denominate their brand of conservatism as consisting of a program of "National Greatness."

I am not certain that even this milder criticism is in order, however. The word "fascism" is derivative of the Latin word for "fasces": a bundle of wooden rods with an axe in the center, the blade of which projects out from the bundle. The fasces was originally a symbol of state authority in ancient Rome that was revived by Mussolini. In particular, the fasces was prominently displayed on Italy's flag during the Mussolini era. Notwithstanding this affiliation, during the Mussolini period the United States government continued to mint the Mercury Dime, which prominently featured a fasces on the reverse side. Production of the Mercury Dime continued unabated through the end of World War II. Likewise, the Seal of the United States Senate prominently features two fasces.

One might argue that these usages reference a symbol of ancient Rome rather than fascist Italy. And I think this rejoinder is not entirely without merit. But this response is problematic for two reasons. First, it is almost as odd that a democratic republic would choose to associate itself with the Roman Republic (or Empire) as with fascist Italy. Anyone familiar with the Roman Republic realizes that its contribution to modern democratic governance is hagiographical at best. See, e.g., H.H. Scullard, From the Gracchi to Nero: A History of Rome 133 B.C. to A.D. 68 5-9 (5th ed. 1982). Second, the same (mis)appropriation could be noted with reference to the swastika, which did not originate with the Third Reich. Yet the swastika has not been rehabilitated in any measure and is certainly not used by the federal government. The fact that the fasces is not as discredited as the swastika is doubtless attributable to the fact that the Nazis were far more pernicious than their Italian ideological cousins. But that is not saying much (i.e., being less pernicious than Nazi Germany is not much of an accomplishment). One might think that there would be some reluctance to employ a symbol that has enjoyed its most prominent modern usage in the service of an ally of Hitler’s Germany. Yet there is not.

posted by Curmudgeonly Clerk at 3:26 AM

 

Muchos Gracias:

Timothy Sandefur and the proprietor of "Crim Law" have added my humble site to their blogrolls. Many thanks to both for the link.

posted by Curmudgeonly Clerk at 11:17 PM

 

Proper Grammar and Usage:

Stanford linguist Geoffrey Nunberg, also of National Public Radio fame, has an interesting article on grammar and politics in today’s New York Times. (Link via How Appealing.) Although I am not sure that I agree with the politics of the article, there are many grammatical points made that ring true. For example:

. . . . Along the way, though, grammatical correctness itself is becoming a strangely arbitrary notion.

Take the rule about pronouns and possessives that Mr. Keegan cited in his challenge to the testing service. Unlike the hoary shibboleths about the split infinitive or beginning sentences with "but," this one is a relative newcomer, which seems to have surfaced in grammar books only in the 1960's. Wilson Follett endorsed it in his 1966 Modern American Usage, and it was then picked up by a number of other usage writers, including Jacques Barzun and John Simon.

The assumption behind the rule is that a pronoun has to be of the same part of speech as its antecedent. Since possessives are adjectives, the reasoning goes, they can't be followed by pronouns, even if the resulting sentence is perfectly clear.

If you accept that logic, you'll eschew sentences like "Napoleon's fame preceded him" (rewrite as "His fame preceded Napoleon"). In fact you'll have to take a red pencil to just about all of the great works of English literature, starting with Shakespeare and the King James Bible ("And Joseph's master took him, and put him into the prison"). The construction shows up in Dickens and Thackeray, not to mention H. W. Fowler's "Modern English Usage" and Strunk and White's "Elements of Style." ("The writer's colleagues . . . have greatly helped him in the preparation of his manuscript.") . . . .

The whole article is well worth reading. But it does have some weaknesses.

First, Because Nunberg discusses the subject in the context of politics, his discussion may inadvertently (and falsely) convey the impression that all attempts to enforce grammatical standards are political in nature. But this is surely not the case. While there may be some controversy as to what the applicable rules are, there are rules. There’s nothing political about insisting on subject/verb agreement for clarity’s sake, for example. Insisting on the exercise of proper grammar is not inevitably a matter of academic fastidiousness or an attempt to impose a particular political program. Anyone interested in effectively conveying ideas has to have some grasp of the rules of grammar and usage. In short, the problem isn’t rules enforcement, it is the attempt to authoritatively apply pseudo-rules that is problematic.

Second, Nunberg glosses over the debate between advocates of usage as opposed to authority (i.e., the question of whether the rules of English usage and grammar are pronounced by authorities or established by usage). Much of his article seems to presume that usage is the proper arbiter of correctness. I am not sure whether this view is right or wrong, but I am sure that it is debatable. Typically, when we want expert advice, we consult experts. In the fields of grammar and proper usage, the relevant experts would seem to be linguists and grammarians. (Indeed, I daresay that it was Nunberg’s credentials that earned him—rather than Joe Sixpack—space in The New York Times.) That is, when we want answers regarding grammar and proper usage, we do not consult plumbers or electricians. But proponents of the usage theory seem to posit that if enough plumbers and electricians (and others) employ the language in a fashion contrary to the rules elaborated by the experts, then the declared rules are not, in fact, the rules.

Taken to its logical extreme, this democratization of English grammar and usage threatens to render the language inchoate. If usage alone determines validity, then on what basis do we correct common grammatical mistakes? Indeed, under the usage theory is not the very conception of “common grammatical mistakes” an oxymoron? The usage theory also raises the question of what exactly we mean by denominating a word or expression as slang. Slang usages frequently enjoy common currency. But if usage determines propriety, then on what basis do we legitimately distinguish between slang and proper English? On the other hand, language is permeated by colloquialisms that defy the rules; nonetheless, such usage is frequently not only considered proper but quintessential. What is more English than the phrase “Say it ain’t so”? This is presumably why students of a second language learn not only the proper grammar of a language but its everyday use as well.

posted by Curmudgeonly Clerk at 2:15 PM

 

Don’t Know Much About History . . .

I made the mistake of allowing Jane Galt to sucker me into meandering over to Salon. I really cannot blame Ms. Galt though. I know better. Salon is and always has been an intellectual wasteland. But sometimes morbid curiosity compels me do the unthinkable . . . yet again.

Anne Lamott offers up this gem of geopolitical and religious history:

. . . . The White House actually seems to believe that it is fighting a Holy War. By the same token, so did Pope Urban II. He thought the first crusade would be a breeze, that his forces were noble and heroic and of God, and that they would rescue everyone. He did not think about the aftermath, what effect the ripples from his rock would have on the pond. For 90 years people thought he’d won, and then we got a thousand years of rage between Christians and Muslims, endless death and brutality in the name of sanctimony and obsession.

Lamott’s conclusions are all wrong, but it is little wonder. Her historical postulates are so breathtakingly ignorant that Lamott could only stumble upon an accurate conclusion by sheer accident.

Christians and Muslims did not come into conflict for the first time in the late Eleventh Century. The lands that the crusaders sought to wrest from the forces of Islam had originally been conquered by the Muslims: “[b]y the early eighth century the Christians had lost North Africa, Palestine and Syria and most of Spain to the Muslims.” Jonathan Riley-Smith, The Crusades: A Short History 1 (Yale Univ. Press 1987). Christian and Muslim fortunes along the frontier between Muslim-held lands and the Byzantine Empire in the Near East fluctuated somewhat over the intervening centuries, but by the time of Urban II Byzantium was in need of military assistance:

In the first week of March 1095 Pope Urban II presided over a church council at Piacenza in northern Italy. There was present an embassy sent by the Byzantine emperor Alexius to ask for help against the Turks, whose advance across Asia Minor had brought them within striking distance of Constantinople (Istanbul). This appeal set off the chain of events that led to the First Crusade . . . .

Id.; but cf. John Julius Norwich, Byzantium: The Decline and Fall 30-32 (Knopf 1995).

Riley-Smith’s history is concise and lively. He does write that Urban II’s decision to pursue the crusade was hardly spontaneous, that it was almost certainly premeditated and driven by a church reform movement led by the Pope, among other things. Riley-Smith, supra, at 2-6. But whatever the goals and motivations of Urban II’s crusade, it occurred within the context of a conflict that had already been underway for centuries. It was a point along a continuum, not an originating event like the Big Bang. Lamott’s theory of causation is all wrong. The truth is that Christianity and Islam were already at odds before the First Crusade and, if Alexius Comnenus’s request for assistance is any indication, would have remained in conflict even without Urban II’s military intervention.

Indeed, the origins of the conflict appear intertwined with the genesis of Islam itself:

Very soon after Muhammad’s death it had become clear that the new religion was possessed of an enormous political energy. Borne up by the idea of the jihad, the holy war, the Arabs forced their way east and west in a breathtaking expansion of power. (Whereas the Christian holy war was, in theory if not always in practice, a defensive undertaking, the jihad was right from the beginning a war of aggression.

Hans Eberhard Mayer, The Crusades 3 (2d ed., Oxford Univ. Press 1988).

The Muslim victories in North Africa, the Near East, and Spain in the 700s (mentioned above) were the culmination of this aggressive program of conquest. Id. Lamott attributes the concept of holy war exclusively to Urban II and his crusaders but neglects to take any notice of the Muslim tendency to holy war that predated the Christian crusades. Interestingly, there was not even a Latin word for “crusade” until the middle of the Thirteenth Century, “and even then it was seldom used.” Id. at 14; see also The First Crusade: The Chronicle of Fulcher of Chartres and Other Source Materials xvii (Edward Peters ed., Univ. of Penn. Press 1971). The corresponding English and German words were not coined until the Eighteenth Century—by historians. Mayer, supra, at 14. Even the Muslims themselves did not view the European incursions as being religiously motivated in the same sense that Muslims' conceived of their own military efforts:

Medieval Arabic, like medieval Latin, developed no word for “crusade.” The crusaders they called simply Franks (the First Crusade being predominantly French in character), and the crusader states were the Frankish territories in the Holy Land. That a religious war could serve any purpose other than that of spreading one’s own religion was incomprehensible to the Muslims, whose own idea of a holy war, Jihad, was entirely based on this conception. To the Seldjuks the crusade must have looked rather like another Byzantine military expedition, the kind of thing to which they were thoroughly accustomed.

Id. at 49; cf. Arab Historians of the Crusades 3-35 (Francesco Gabrielli & E.J. Costello trans., Univ. of Calif. Press 1969)

This, of course, does not negate the religious nature of the Christian expeditions into Muslim occupied lands, but it does highlight the vastly differing views of religious conflict held by Christians and Muslims. Rightly or not, Christians viewed the incursions of the First Crusade as falling within the just war doctrine elaborated by Saint Augustine: the justification being the recovery of the very lands lost to the Muslims during the Muslim period of rapid expansion in the previous centuries. See Mayer, supra, at 14-15.

Perhaps, one could draw some meaningful parallels between the Christian-Muslim conflicts of the Middle Ages and present circumstances. But first one would have to know something about the crusades. Lamott does not and it shows. Generally speaking, allusions to the crusades are like allusions to the Third Reich: they are an overheated rhetorical device devoid of actual content.

posted by Curmudgeonly Clerk at 1:52 AM

 

Are you kid.[ding]us?

Tech Law Advisor links to a story in the Washington Post that discusses the technological difficulties associated with the creation of a child-friendly internet domain (kids.us) that would ostensibly spare the little tykes from adult content. This is a serious problem for underage cybersurfers and their minders. One can often perform the most innocuous of internet searches and still come back with some jaw-dropping results. I recall that a friend of mine once performed a search for “bears” in order to help a young relative with a school report. The search produced some rather, ahem, hairy results.

Thus far, it is not clear that the kids.us domain has any hope of working though. One developer quoted in the Post story asserts that, even with the best technology available, “[t]here is no automated way to differentiate between a glazed doughnut and a suntanned breast.”

Of course, if recent lawsuits are any indication, some folks would probably just ban the doughnuts too.

posted by Curmudgeonly Clerk at 1:25 AM

 

Many Thanks:

I would like to extend my belated thanks to Bag and Baggage, How Appealing, and Tech Law Advisor for adding me to their blawgrolls. As a small remora navigating a very big sea, I appreciate the ride-along.

Thanks also to Inter Alia for the mention.

posted by Curmudgeonly Clerk at 11:53 PM

 

Bedeviled by Conscience:

Continuing a discussion on the role of conscience in judging that was sparked by a series of dissents issued by Judge Pregerson of the Ninth Circuit Court of Appeals, Timothy Sandefur assumes the role of Devil’s Advocate in defense of the notion that a judge might exercise his conscience in lieu of abiding by binding precedent from a higher appellate court. See the original posts here, here, here, and here; see also this post by Howard Bashman.

Although I think that there is broad agreement between Sandefur and myself on many of the relevant issues, he has rejected both of my attempts at reasoning by analogy. Instead, Sandefur wants to cut right to the heart of the matter:

But should we follow [The Curmudgeonly] Clerk beyond the statement “The three-strikes law eliminates any discretion; a certain result is mandated. The Supreme Court has upheld this legislative mandate”? That seems to beg the question; if “the judicial power of the United States,” as exercised by a federal judge, includes the application of “conscience,” then mandatory sentences would also be unconstitutional, since the legislature would have no legitimate authority to restrict the judicial power, for separation of powers reasons, so we’d have to say that the Court’s upholding of such mandates is unjustified. Indeed, the “judicial power of the United States,” of course, is vested separately from those “legislative powers herein granted.” So it is arguable that the legislature has no authority to deprive the courts of judicial power—although they may, of course, regulate the jurisdiction. (We’ll leave aside Article I vs. Article III differences for now.) So if the judicial power of the United States includes the exercise of discretion, then the legislature has no power to deprive courts of that discretion, and the cases upholding the mandatory sentencing guidelines were wrongly decided, so judges ought to refuse to follow those decisions, too.

In an impressive argument that deserves to be read in its entirety, Sandefur then bolsters the foregoing with extensive discussion of Federalist No. 78. Previously, I had argued that it would be perverse to maintain that federal judges qua federal judges may be guided by their consciences rather than binding precedent on the very basis of the unique status that they enjoy under Article III. But Sandefur cleverly clarifies that this is the issue under consideration: the constitutional status of conscience. Although my analogies may be salient regarding the requisites of hierarchical institutions, they fail to directly confront the constitutional issue raised by Sandefur.

At bottom Sandefur’s argument comes down to the nature and meaning of “[t]he judicial Power,” which the Constitution vests in the federal courts. U.S. Const. art. III, sec. 1. Sandefur, in his capacity as Devil’s Advocate, argues that “conscience” is constitutionally ensconced in this provision.

I find this argument to be highly problematic. For starters, I am reluctant to freight these three nondescript words of Article III with so much constitutional meaning. But I must acknowledge that the phrase “[t]he judicial Power” is not mere surplusage. The Supreme Court has determined otherwise:

I agree with the Court that Article III courts, as an independent and coequal Branch of Government, derive from the Constitution itself, once they have been created and their jurisdiction established, the authority to do what courts have traditionally done in order to accomplish their assigned tasks. Some elements of that inherent authority are so essential to "[t]he judicial Power," U.S. Const., Art. III, § 1, that they are indefeasible, among which is a court's ability to enter orders protecting the integrity of its proceedings.

“Certain implied powers must necessarily result to our Courts of justice from the nature of their institution . . . . To fine for contempt—imprison for contumacy—inforce the observance of order, & c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . . .” United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812).

Chambers v. NASCO, Inc., 501 U.S. 32, 58 (1991) (Scalia, J., dissenting).

But conceding that the phrase “[t]he judicial Power” imbues the judiciary with certain inherent powers without which they could not function merely raises the question of whether “conscience” as Judge Pregerson conceives of it is essential to the functioning of the judiciary.

First, for the reasons that I have previously articulated, it seems to me that the exercise of Pregerson’s conscience would in fact deprive the judiciary of its ability to fulfill its assigned tasks. As Sandefur notes, “[t]he judicial Power” is “vested in one supreme Court” and in whatever “inferior Courts” that Congress might establish. Presumably, the words “supreme” and “inferior” also have some significance. Indeed, the meaning of these terms, unlike “[t]he judicial Power,” is rather straightforward. Article III and the statutes enacted in furtherance thereof contemplate a hierarchical judiciary. Judge Pregerson’s precedent-defying “conscience” would turn this structure on its head. It stands to reason then that such “conscience” is not entailed by “[t]he judicial Power.”

Second, this is not the only time in recent memory that someone has argued that “[t]he judicial Power” is pregnant with significance. In Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc), Judge Richard S. Arnold declared his Circuit’s unpublished opinions rule unconstitutional on the basis that it conferred upon the Court of Appeals a power that goes beyond “[t]he judicial Power” vested in the judiciary by Article III. Whatever one thinks of the unpublished opinions debate in general, Judge Arnold’s analysis has been subjected to substantial, well-reasoned criticism. See, e.g., Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Christian F. Southwick, Note, Unprecedented: The Eighth Circuit Repaves Antiquas Vias with a New Constitutional Doctrine, 21 Rev. Litig. 191 (2002).

For present purposes, a couple of brief observations will suffice. It is not a minor undertaking to demonstrate that an attribute is so essential to the exercise of judicial power that the Founders must have grafted it into Article III. We are talking about engaging in an historical inquiry of great magnitude regarding a portion of the Constitution for which the historical record is incomplete. This is no small point. As with Judge Arnold, it is all too easy to succumb to the temptation of believing that one’s particular conception of the judiciary must be constitutionally required by Article III. Serious research is the only effective safeguard against such projection.

Sandefur cannot be faulted for failing to engage in such research. He advanced his intriguing argument by way of thumbnail sketch, not via a law review article. But those who would do more than play Devil’s Advocate on behalf of Judge Pregerson have their work cut out for them. The contention that “[t]he judicial Power” is imbued with an attribute that empowers inferior courts to disobey the “one supreme Court” is counterintuitive to say the least.

posted by Curmudgeonly Clerk at 11:04 PM

 

Conscience Versus Discretion:

Ironically enough, Timothy Sandefur dissents, in part, from my analysis of Judge Pregerson’s recent dissents. Mr. Sandefur writes:

I am not willing to entirely endorse the view that “[a] judge’s conscience does not enjoy constitutional status.” Judges are chosen for their conscience as well as for their other qualities, and a judge’s conscience has as much constitutional status as his knowledge of the law, or his research skills. Also, I find the clerk analogy weak, since a clerk is not supposed to exercise judgment; his is a ministerial task, as it were, so it really begs the question, since what we’re asking is whether the role of judgment in the constitutional scheme includes the judge’s application of conscience. But I do agree that in every case that I can think of, the better, as well as more effective, solution to the problem is for the judge to explain why he thinks that the precedent is wrong, but follow it nevertheless. It helps to solve the problem, rather than just pouting.

First, I am not certain that I understand what Sandefur intends when he argues that a judge may properly exercise his conscience, but my surmise is that he is not using “conscience” in the same sense that Judge Pregerson would. I would be interested to see an example, but in the absence of one, what I think Sandefur has in mind is the exercise of discretion, which is entirely proper in many circumstances. The actual legal standard of review of a district judge’s decision is often what is termed “abuse of discretion” (i.e., so long as the district judge exercised his or her discretion and was not capricious or arbitrary, the judge’s ruling will be affirmed). Rulings regarding venue-related motions to transfer are generally within the sound discretion of the district court, for example.

Discretion also plays a role in sentencing as well. Under the United States Sentencing Guidelines, that discretion has been greatly restrained, but it still exists. For example, federal district judges must often choose a point along a defined sentencing continuum; such decisions are discretionary in nature. Likewise, federal judges must often weigh the propriety of requests to upwardly or downwardly depart from a fixed sentencing range. Judges might be characterized as exercising their conscience under such circumstances. But such a characterization is colloquial. What is actually going on here is the exercise of discretion. In the foregoing examples, judges do not exercise their conscience in the same manner that Judge Pregerson advocates.

Indeed, in the cases in which Judge Pregerson exercised his conscience, he did so because the law allowed him no discretion in sentencing. The three-strikes law eliminates any discretion; a certain result is mandated. The Supreme Court has upheld this legislative mandate. Pregerson disagrees both with Congress and the Court, insisting that he ought to be able to exercise discretion even where the law disallows it. This is, I think the distinction between Pregerson’s conscience and the legally valid exercise of judicial discretion. The former is entirely extra-legal and extra-constitutional in nature (i.e., outside of the existing legal and constitutional order).

Second, I understand Sandefur’s reticence to embrace the clerk analogy. It may be perceived as overly self-important inasmuch as it might equate the constitutional duties of law clerks and their employers. This is not my intent. The former research and recommend while the latter announce and order. Judges are vastly more experienced and knowledgeable than their hired subordinates and the judges alone possess the discretion discussed above. At most, clerks merely assist their judges in the sound exercise of that discretion.

Nonetheless, I do not believe that the foregoing renders the clerk analogy as weak as Sandefur suggests. Both clerks and judges swear oaths to uphold the Constitution. It would be highly odd to suggest that the very fact of a federal judge's unique Article III status permits him to disregard Article III's requirments whenever his conscience intercedes. Moreover, the administration of an oath for purely ministerial acts strikes me as being somewhat curious. However, short in the tooth the average law clerk may be, clerks are selected in part for their judgment as well. They are not mere secretaries who apply self-evident precedents. Indeed, some have argued that the influence of clerks is to be distrusted and feared. See, e.g., William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. News & World Report, Dec. 13, 1957, at 74-75.

Whatever the merits of the clerk analogy, however, it is not hard to imagine others. Take for example the chain of command established in the Commander in Chief Clause. U.S. Consti. art. II, sec. 2, cl. 1. All military leaders are thereby subordinated to civilian leadership. As the President does, so military officers also take an oath to support and defend the Constitution. But officers’ conscience’s are constrained by the lawful orders of the President and officers may not follow their own inclinations when their consciences lead them to contrary constitutional conclusions. Nonetheless, the consciences of military officers have occasionally induced insubordination (e.g., Gen. George Patton, Gen. Douglas MacArthur). When officers are insubordinate, they are cashiered.

This comparison is not precisely analogous. Analogies are seldom exact. The Commander in Chief comparison does, however, capture important aspects of the constitutional crisis that Judge Pregerson’s insubordination presages if allowed to proceed unchecked. Both feature constitutionally imposed horizontal structures (i.e., civilian leaders over military ones, superior courts over inferior ones), and both would cease to function as contemplated if subordinates failed to heed the lawful decisions of their superiors.

Although the President may accord military leaders a great deal of discretion in a particular operation (e.g., the recent war in Iraq, in which the President is said to have vested operational decision-making authority in his military commanders), they are not free to disregard the direct orders of the President when their consciences cry out. Nor can military leaders simply choose to not participate in campaigns that do not offend their sensibilities. They must prosecute World War II and Vietnam alike, a defensive struggle against Japan and a preemptive attack on Iraq. If they cannot bring themselves to do so, then they must resign. That is the order that our Constitution ordains. If they will not resign, then they must be cashiered; they must give way rather than the Constitution. So it is with judges as well.

posted by Curmudgeonly Clerk at 11:40 PM

 

Federalism and the Federal Drug War:

I have evinced skepticism about so-called federalist critiques of the federal government’s conduct in the drug war. My doubts notwithstanding, this is clearly an idea that is widely held among libertarian thinkers. Consider, for example, this excerpt from an article by Radley Balko:

The problem with Attorney General Ashcroft—and the reason I write about him today—is that his record as Attorney General thus far has shown him to be a man completely unsympathetic to the tenets of federalism when they happen conflict with his own, personal values.

* * *

Ashcroft’s questionable allegiance to federalism has become glaring when it comes to the drug war. Despite the clear intent of voters in several states to allow the use of marijuana for medicinal purposes, the Attorney General has asserted the transcendence of federal law time and again, going so far as to send federal agents into convalescent centers with assault weapons and, in some cases, handcuff terminally ill patients to their beds.

In another particularly galling example, Ashcroft’s Justice Department convicted marijuana activist Ed Rosenthal in federal court for growing large stashes of marijuana. Problem is, Rosenthal wasn’t just growing the plants for medicinal use (legal under California state law), he was growing them for the city of Oakland. DOJ prosecutors persisted, and not only was Rosenthal convicted under federal law, the jury that convicted him was never told that he was actually working for the city. When told after the trial, the jurors who convicted Rosenthal called a press conference to express their outrage at having been misled.

Ashcroft’s supporters counter that as Attorney General, his job is to uphold and enforce the federal code—whether or not he agrees with a particular law isn’t important. But that’s a bit naïve. Like any other cabinet head, the Attorney General works with a budget, with limited resources. He hasn’t nearly enough capital or prosecutors to go after every infraction of the federal criminal code (which, thanks in no small part to allegedly federalist-minded Republicans, is expanding exponentially). Consequently, Attorney General Ashcroft actually makes policy when he chooses which federal laws he’s going to actively enforce, and to what extent.

(Link via Instapundit.)

Once again though, the article simply assumes that federal refusal to allow states to contravene federal drug laws violates the tenets of federalism. It is as if any federal resistance to state-made policies is considered beyond the pale not just on account of the supposed wrongheadedness of the federal government’s position but also because it somehow violates the proper division of authority amongst the states and the national government.

It is difficult to take issue with such unstated assumptions precisely because they remain unarticulated. Does Balko employ the term “federalism” in a purely political sense? Or does he intend his invocation of “federalism” as a serious constitutional argument?

I assume that, like Professor Jonathan H. Adler, Balko must intend the latter usage. If so, I would like to see proponents of this position make the constitutional argument in detail. Until proponents do so, the so-called federalist case against the federal drug war seems more like libertarian disappointment with the drug war on the merits.

Perhaps, this federalist argument has been made and I am simply ignorant of its existence. If so, I heartily encourage readers to e-mail me.

In this vein, a reader has written to suggest that the very existence of the Eighteenth Amendment is evidence that federalism concerns are implicated by the federal drug war. This is an intriguing line of argument. The Eighteenth Amendment (1919), of course, ushered in Prohibition.

At the outset, I must confess that, like most things I discuss on this site, I am far from being an expert on this subject. I suspect that this now-defunct amendment probably has few experts. What little I do know indicates that the Eighteenth Amendment cannot support the so-called federalist case.

The only thing that I have read on this topic is a single, rather brief book review. See W.J. Rorabaugh, Reexamining the Prohibition Amendment, 8 Yale J.L. & Human. 285 (1996) (reviewing Richard F. Hamm, Shaping the Eighteenth Amendment: Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Univ. of N.C. Press 1995)). Rorabaugh’s review makes it clear that federalism acted as a break on the ambitions of the teetotalers. Indeed, the Amendment’s dispensation of concurrent enforcement power to both the states and the federal government seems to have been designed to allay federalist concerns.

But the review also notes that the Commerce Clause began to come into its own during the Progressive Era that led up to Prohibition. Likewise, even in the absence of the concurrent enforcement power provision, it is not clear that the Amendment represented a federal takeover, as eighteen states already had stricter “bone-dry” prohibition laws prior to the enactment of the Eighteenth Amendment. Moreover, in the period before Prohibition, the federal government had effectively thwarted enforcement of state prohibition laws in order to facilitate federal taxation of alcohol. So it is not clear that the national government had an interest in exerting power over the states in this matter, so much as national politicians succumbed to a populist campaign that favored Prohibition.

In the run up to the enactment and ratification of the Eighteenth Amendment, Supreme Court decisions were issued that denied the states the right to regulate or forbid alcohol in interstate commerce, presumably on the basis of the so-called Dormant Commerce Clause. See, e.g., Rhodes v. Iowa, 170 U.S. 412 (1898); Vance v. W.A. Vandercook Co., 170 U.S. 438 (1898); Am. Express v. Iowa, 196 U.S. 133 (1905). Conversely, the passage of the Webb-Kenyon Act in 1913, which disallowed interstate shipment of alcohol into dry areas that forbade even personal use of alcohol (i..e., “bone-dry” areas), clearly evinced Congress’s judgment that it had the power to regulate alcohol sales via the Commerce Clause in the absence of a constitutional amendment.

Thus the Eighteenth Amendment was apparently not considered necessary in order for the federal government to regulate alcohol sales. Proponents of prohibition presumably sought a constitutional amendment in order to achieve what the federal government could not via the Commerce Clause: a blanket prohibition of “the manufacture, sale, or transportation of intoxicating liquors within . . . the United States” even in the absence of a nexus with interstate commerce. Accordingly, it does not seem, on an admittedly brief analysis, that the Eighteenth Amendment’s existence evidences a federalism issue in the current federal drug war.

What then is the basis for this claim that the federal drug war runs counter to the tenets of federalism?

posted by Curmudgeonly Clerk at 9:06 PM

 

Disagreeable Precedents & The Rule of Law:

There has been some interesting discussion by Timothy Sandefur and Howard Bashman about some recent decisions handed down by the Ninth Circuit Court of Appeals. See the original posts here, here, here, and here.

Rico v. Terhune, No. 01-56692, 2003 WL 21186323 (9th Cir. May 19, 2003) (unpublished opinion) is typical of the opinions under discussion. The complete text of the Rico opinion reads as follows:

MEMORANDUM[FN*]

FN* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

California state prisoner Jeffrey Rico appeals the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition challenging his sentence under California's three-strikes law for petty theft with a prior in violation of California Penal Code § 666. Rico's contention that his 25- years-to-life sentence is grossly disproportionate in violation of the Eighth Amendment is foreclosed by Lockyer v. Andrade, 123 S.Ct. 1166, 1172-75 (2003) (holding that state court's affirmance of two consecutive 25-years-to- life sentences for petty theft was not contrary to or an unreasonable application of federal law), and Ewing v. California, 123 S.Ct. 1179, 1185- 90 (2003) (holding that 25-years-to-life sentence under the California three- strikes law did not violate the Eighth Amendment's prohibition on cruel and unusual punishment). The district court therefore properly denied Rico's petition. Andrade, 123 S.Ct. at 1175.
AFFIRMED.

REINHARDT, Circuit Judge, specially concurring.

REINHARDT, Circuit Judge.
I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.

PREGERSON, Circuit Judge, writing separately, dissenting in part.

PREGERSON, Circuit Judge.
In good conscience, I can't vote to go along with the sentence imposed in this case.

See also Wallace v. Castro, No. 00-16993, 2003 WL 21186336 (9th Cir. May 19, 2003) (unpublished opinion); Turner v. Candelaria, No. 00-15606, 2003 WL 21186338 (9th Cir. May 19, 2003) (unpublished opinion). Note: Bashman advises that many other memorandum decisions of this nature have been issued by the same panel.

The panel in each case was made up of Judges Pregerson, Reinhardt, and Graber. The first two were appointed by President Carter and the last was appointed by President Clinton.

It is clear that Judge Reinhardt is following precedent, albeit stating his discontent with the state of the precedent in question. It is not clear exactly what Judge Pregerson is doing. Pregerson purports to be dissenting in part, but as Sandefur observes, “[i]t’s unclear . . . which part he isn’t dissenting in.” Hence, it would seem that Pregerson is simply dissenting altogether, notwithstanding his dissents’ “in part” qualifier.

Such an interpretation is certainly in keeping with Pregerson’s biography. Sandefur provides the following background:

. . . . When President Carter appointed Judge Pregerson to the bench, [he] was asked whether he would follow his conscience or the law, if the two came into conflict. He replied, “I would follow my conscience.” (See John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, Los Angeles Times, May 3, 1992 at B5.) Sure enough, in 1992, when California tried to execute Robert Alton Harris, Pregerson issued a stay of execution—the fourth such stay entered that night. The Supreme Court finally had enough of Pregerson, and specifically ordered that “no further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this Court.” Vasquez v. Harris, 503 U.S. 1000 (1992). This was quite unprecedented. (See further Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155, 188-92).

This raises the question of whether a judge on an inferior court can ever decide a case on the basis of his conscience in direct variance with precedent from a higher court. Sandefur seems conflicted regarding the propriety of Judge Pregerson’s refusing to apply binding precedent on the basis of one’s conscience. Bashman raised the issue but has refrained from announcing an opinion on the matter.

As a preliminary matter, it is interesting that this act of insubordination is being conveyed in opinions that are non-precedential and non-citable in general. It is almost as if the panel is saying that it will not uphold the frowned-upon precedent on the record. The panel is generally depriving future litigants and future panels from recognizing the judicial act that Judge Reinhardt finds unconstitutional and that Judge Pregerson finds unconscionable. Of course, this may be reading too much into the matter, as the determination to render these decisions via “unpublished” opinions was unanimous in each of the cases. Rico, Wallace, and Turner are routine applications of precedent, and any future panel that considers the issue is duty bound to reach the same result—unless it follows in Judge Pregerson’s footsteps. Nonetheless, these cases do not feature the application of precedent in a routine fashion, and there is something discomfiting about such decisions being rendered “unpublished.” (And I am a proponent of the unpublished opinion regime overall.)

Setting the foregoing issue aside, I do not believe that there is any ambiguity about what is required of judges when their conscience counsels other than adherence to obviously binding precedent: they must disregard their personal preferences or contrary interpretations and hew to precedent. If we are a nation of laws and not of men, then inferior tribunals must obey superior ones. Contrary practices are foreign to the rule of law. This is not to say that judges must do so with a glad heart. Judge Reinhardt’s special concurrences are hardly unique. Many judges have enforced precedent all the while noting that they might decide otherwise if writing on a blank slate. Indeed, there are opinions by lower courts that openly call upon superior ones to overrule precedent but abiding by the precedent in question nonetheless. In such ways, inferior courts may call upon higher ones to abrogate unjust and ill-conceived decisions.

But Judge Pregerson’s dissents are beyond the bounds of acceptable judicial conduct. A judge’s conscience does not enjoy constitutional status. Instead, judges take an oath to uphold the Constitution of the United States. This oath entails adherence to the decisions of our Supreme Court. A judiciary in which individual judges are free to do otherwise is not an organized, multi-tiered institution so much as a conglomerate of co-equal jurists who may do as they please whenever they are of a mind to do so. Taken to its logical end, horizontal precedent would cease to have meaning.

I also take it as a given that the exercise of judicial conscience would always conveniently coincide with one’s own policy preferences. That is, I doubt very much that a judge who was not personally opposed to the precedent that Judge Pregerson refuses to adhere to would find it unconscionable to do so. If there is a test that can be devised that distinguishes the exercise of judicial conscience, as Judge Pregerson conceives of it, from the naked refusal to apply precedents at odds with one’s preferred policies, then I do not readily grasp it.

Moreover, I do not believe that selective recusal is an option for the judge of “conscience,” because the unwillingness to enforce and uphold disagreeable precedents is indicative of a temperament unfit to hold judicial office. That is, if a judge cannot be trusted to apply any one precedent dispassionately, then how can that same judge be relied upon to do so in other cases, or to even recognize when his own predilections are subverting his willingness to abide by binding precedent?

Hypothetical: A Clerk of Conscience
Consider the following example of what I have in mind. As a federal law clerk, I was required at the beginning of my term of service to take an oath to uphold the Constitution of the United States. (I was also specifically asked during one or more of my interviews with federal judges what course I would advise in the face of a binding precedent that I personally found repugnant.)

Now let us say that I am assigned to research issues in a complex case for the District Court. Assume also that the case could theoretically go any number of ways, and that the parties’ submissions to the Court fail to resolve the issue. Further suppose that after a great deal of research I correctly determine that the case has but one resolution based on binding precedent, the application of which is indisputable on reflection yet less than obvious without a great deal of analysis and research. However, said resolution turns out to be at odds with what I consider to be right on a personal level. That is, my conscience bridles at the result that binding precedent requires. Faced with this situation, what may I do? What are my options?

I believe that there is only one option. Whatever one’s personal inclinations, is there any doubt that a clerk in this situation must honestly advise the judge of the law and analysis that is contrary to the former’s desires? Moreover, would any judge hire a clerk who was incapable of doing so, who had to beg off of any case that promises to involve personally disagreeable precedents? I take it as a given that no inferior federal court judge expects or wants a clerk who will routinely advise the latter to disregard binding precedent as well. A clerk who cannot honestly confront disagreeable precedents is acting as an advocate rather than a researcher and advisor. There may be many roles for which such a person is suited, but law clerk is not among them. The hypothetical “clerk of conscience” simply lacks the temperament to be a law clerk.

The same is true of judges. The only real distinction between the hypothetical clerk above and a federal judge is that the latter has undergone nomination and confirmation. But it would be perverse to argue that a judge's Article III status imparted the discretion to disregard constitutional decisions that others must obey. The hypothetical clerk and the federal judge swear an oath to uphold the very same Constitution.

We, the people, have a right to expect our judges to enforce obviously binding precedent. Judges who cannot do so—even when they have the option of publicly disagreeing with the very decisions that they enforce—do not belong on the bench. Presidents should not nominate them. The Senate should not confirm them. If this particular dispositional malady develops after nomination and confirmation, the judge in question should resign. Barring resignation, such judges should be impeached.

posted by Curmudgeonly Clerk at 1:39 AM

 

“Ya” Is Not A Backward “R”:

The History Channel is running a show entitled Russia: Land of the Tsars. Despite using the spelling “tsar” in lieu of “czar,” which might suggest a certain knowledge of the original Russian spelling and pronunciation, The History Channel insists on using the Russian letter “Ya” as an English “r.” Although the letter "ya" in Cyrillic resembles a backward capital English "R," the Russian equivalent of “r” actually looks like the English letter "p." It is disappointing to see The History Channel make this kind of amateurish mistake.

Note: I would add the relevant Cyrillic characters and the Russian spelling of "tsar," but I cannot seem to convey non-Latin alphabet script via Blogger.

posted by Curmudgeonly Clerk at 9:51 PM

 

Federalism Is Not Libertarianism:

Jonathan H. Adler, a professor at Case Western Reserve University School of Law who contributes to NRO’s The Corner on a regular basis, posted a brief note on Maryland’s efforts to reduce the criminal penalties for medicinal use of marihuana. As reported in The Washington Post, the new Maryland law, “does not legalize the drug but provides that seriously ill people caught using marijuana for medical purposes cannot be jailed or be fined more than $100.”

The measure in question was signed into law by Republican Governor Robert Ehrlich. Interestingly, Professor Adler comments that, “[p]erhaps now that Republican office holders are supporting such policies the Justice Department will reconsider its ill-fated (and anti-federalist) crusade against state decriminalization efforts” (emphasis added).

As Professor Adler’s brief comment is devoid of context, it is not obvious what he means by “anti-federalist.” But elsewhere he has written that:

Federalism is not about state sovereignty, as such, nor is federalist jurisprudence inherently hostile to the national government. Rather, the Constitution creates a system of "dual sovereignty." The Constitution explicitly enumerates those powers which may be exercised by Congress, such as coining money, declaring war, raising armies, issuing patents, and regulating commerce "among the several States." In each of these areas, the federal government's power is supreme. In virtually all others, however, state authority is plenary, limited only by an obligation to observe constitutionally guaranteed rights. As the Tenth Amendment reminds us, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." There is nothing wrong with a vigorous federal government so long as its efforts are confined to the proper sphere.

Thus, Professor Adler must mean that he believes that the Justice Department’s “crusade” is unconstitutional inasmuch as it exceeds the authority delegated to the federal government under the Constitution.

Regarding the federal government’s “crusade,” Adler no doubt has the fact patterns detailed in cases like United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001) and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) in mind.

In Oakland Cannabis, the Supreme Court held, in an 8-0 decision written by Justice Thomas, that the Controlled Substances Act, 21 U.S.C. 841 et seq., does not have a medical necessity exception and that, notwithstanding a California law decriminalizing medicinal use and distribution of marihuana, said activities remain federal criminal offenses. (For those keeping score, this Supreme Court decision was a unanimous reversal of a Ninth Circuit Court of Appeals opinion. See United States v. Oakland Cannabis Buyers’ Co-op., 190 F.3d 1109 (9th Cir. 1999 (per curiam).) However, the Court did not resolve the federalism question that Professor Adler raises. In fact, the Court explicitly reserved this issue for a future case:

Finally, the Cooperative contends that we should construe the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress' Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.

It does not appear that these issues have yet reached the federal appellate courts. Perhaps, when they do, the courts will vindicate Professor’s Adler’s view. (Or rather what I understand Adler’s view to be based on his cursory and cryptic “anti-federalist” comment.). Shooting from the hip, it seems highly unlikely, however, that the Supreme Court would hold that federal drug laws exceed the national government’s powers under the Constitution. The Constitution does not enact libertarian drug policy anymore than it enacts Herbert Spencer’s Social Statics. The federal government’s refusal to abide by state decisions to decriminalize certain uses of marihuana strikes me as a clear cut case of the Supremacy Clause in action. U.S. Const. art. VI.

However, I am intrigued enough to want to hear more from Professor Adler.

posted by Curmudgeonly Clerk at 7:01 PM

 

!@#$%! Blogspot:

As noted by virtually the entire blogosphere, bloggers and blogphiles alike, Blogspot is on the fritz in a major way and has been for over a week now. One assumes that this is why The Volokh Conspiracy has relocated. I would update my blawgroll accordingly (not that the Volokhs et al. depend on traffic from little ol' me), except that I have been unable to alter my template in any fashion for days now.

In the past, I have tended not to complain about Blogspot. Being on the free-version, I am getting what I am paying for after all. But the folks at Blogspot are giving me precious little incentive to upgrade to the pay versions. Indeed, I may well be looking for alternative hosting in the near future.

posted by Curmudgeonly Clerk at 2:07 PM

 

Borderline:

The national media has picked up on a human smuggling story that ended in tragedy here in Texas. CNN, for example, has run a series of articles, available here, here, here, here, here, and here. The stories speak for themselves. But they also highlight the porous nature of our Southern border. I would hesitate to characterize the situation as out of control; the Rio Grande Valley is not some lawless frontier. However, it probably is accurate to say that it is uncontrollable in any meaningful sense, at least under present policy and circumstances. It is simply the power of the market at work: the financial rewards are considered worth the physical and legal risks by both the smugglers and their human cargo. Notwithstanding the rhetoric about border control in the wake of 9/11, it is not clear that the American public is willing to devote the magnitude of resources necessary to alter this calculus and exert greater control over the border. Indeed, it is not self-evident that the United States could fully control the Southern border even if it had the desire. This fact has implications far beyond immigration policy.

posted by Curmudgeonly Clerk at 12:08 AM

 
ADDENDUM:

In yesterday’s post, I cited Bakke. Of course, Vanderbilt, as a private institution may not be subject to the dictates of that case in the same way that a public university would be. But this does little to undermine the general argument. Vanderbilt University Law School pledges itself to non-discrimination in its admissions:

In compliance with federal law, including the provisions of Title IX of the Education Amendments of 1972, Sections 503 and 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990, Vanderbilt University does not discriminate on the basis of race, sex, religion, color, national or ethnic origin, age, disability, or military service in its administration of educational policies, programs, or activities; its admissions policies; scholarship and loan programs; athletic or other University-administered programs; or employment.

One would think that this means taking no account of race whatsoever in admissions. But at a minimum it would seem to be a pledge to at least abide by Bakke’s squishy standard. Otherwise what could it possibly mean to “not discriminate on the basis of race”?

One suspects that an open audit of Vanderbilt University Law School’s admissions records might reveal otherwise. As noted here, such is, perhaps, the case at many public universities as well.

posted by Curmudgeonly Clerk at 10:53 PM

 

Race-Conscious Law Review Selection?

John Rosenberg of Discriminations links to this story in the Baltimore Sun that revolves around the racial composition of the Vanderbilt Law Review. The rub is this: the Vanderbilt University Law School apparently aggressively recruits minority students—they make up 13 percent of the student body—but next to none have ever served on the Law Review.

Vanderbilt Law Review specifies the manner in which it selects its staff:

The Law Review selects new members in the spring of their first year. Students interested in Law Review membership are required to compete in a case comment competition following their spring final exams. Members are selected based on a combination of their case comment score and their first year grade point average. The Law Review selects thirty first year students annually.

The Sun story makes clear that, as is traditional with merit-based, student-edited legal journals, the selection process for Vanderbilt Law Review is blind. That is, its members apply anonymously so that their identities do not figure in the selection process at all.

The Law Review’s website also announces a strict policy of non-discrimination:

It is the policy of the Law Review not to discriminate on the basis of race, gender, age, religion, ethnic background, marital status, or sexual orientation.

Amazingly, some seem to think that it is the non-discrimination policy itself that is the problem. The Dean, Kent D. Syverud, a proponent of affirmative action, has indicated that the Law Review needs to do something about its racially homogenous composition. Apparently, an ad hoc committee of Review members analyzed the issue and next year the Review will set aside five of the thirty spots. These five members will be selected solely on the basis of the writing sample, without reference to grades. Administrators are hopeful that this will produce more black members, as black students are thought to fare better on the written sample portion than they do in their first-year grades. (Why the administration suspects this is the case remains unclear, given the fact that the selection process is blind and adminstered by students.)

My alma mater has a similar writing sample set-aside for a certain number of the flagship law review’s membership spots. I am unaware of the rationale or origins of the Texas Law Review’s selection procedure. But it is discomfiting to see another law review alter a purely merit-based selection process simply because it fails to produce the desired racial goals. Membership in a law school’s premier legal publication is a coveted prize. As the Sun article notes, it opens the door to interviews with prestigious firms and judicial clerkships. Speaking from personal experience, it is very difficult to compete for those jobs with students who have that on their resume if you do not. I served on another, less esteemed legal journal at my school and it took a great deal of tenacity (and some good fortune) to land my judicial clerkship. So I can understand the frustration of law students who do not make the law review cut. But to merely recite the arguments of those who propose to scrap Vanderbilt Law Review’s standards in order to achieve the longed-for result is to refute them.

Consider the views of one the Review’s outgoing editors:

The debate over changing the process roiled the review for months. What it came down to, said outgoing review editor Paul Helms, were different views of the publication's mission. Is the review an honor reserved only for those who excel by traditional measures—an honor that could be compromised by considering other factors?

Or is the review a publication that should, as an arm of the school, reflect its makeup? Indeed, might the publication be better for having editors with varied backgrounds—even if they don't, by conventional measures, rank at the top?

"Maybe grades and writing just aren't the only things to determine who should be on the law review," said Helms, 24, from northern Virginia.

Well, if not grades and writing, then what? Personal preference as to the proper results? (Whose preferences?) Social engineering to produce a result consistent with the school’s overall demographics? What measuring stick would Helms have the Review use? And once Helms has articulated an actual standard, how does he propose to implement it?

The Sun story also notes that some law reviews have moved into the realm of taking race explicitly into account:

. . . [O]thers, such as the University of Virginia, have adopted some form of affirmative action—for instance, by having applicants submit a "diversity statement" on how they would add perspective to the review.

I am skeptical of “diversity” as a justification for race-conscious remedies in general. Unless one considers simply being in the presence of others with differing melanin content to be diversity-enhancing, it seems to me that affirmative action has little to offer in the way of diversity. Race, ceteris paribus, is an exceptionally poor proxy for diversity, whatever that term might be understood to mean.

Moreover, the principal job description of law review staffers consists of editing and Bluebooking submissions from professors, practitioners, and judges. It is a time-intensive, highly technical process that largely requires members to apply relatively uniform standards by rote. Assuming arguendo that more minority involvement would somehow enhance diversity, diversity simply does not have much of a place in the life of a staffer qua staffer. Editors typically select the articles that are to be edited for publication and participate in and supervise the editing process. Diversity would also add little here. Selection of articles for publication tends to be merit-based, with journals publishing the most prestigious authors and best scholarship that they can attract.

In short, law reviews as institutions have nothing to gain and, perhaps, a great deal to lose by deemphasizing merit in the membership selection process. Statements to the effect that the quality of journals will be increased by doing so ought to send up a red flag. Proponents of race-conscious remedies ought to be less disingenuous and simply admit that their goals are sociopolitical, rather than attempting to argue that their goal is to improve the law review itself.

As the Sun reports, the racialization of the selection process has naturally led to all the usual recriminations:

At the same time, the outcomes have renewed painful questions about the school's use of affirmative action. To some, the fact that the school's black students don't perform well in a competition based only on grades and writing serves to crystallize the role that race plays in the admissions process.

Few students and faculty want to state this view publicly, but others say it is shared in private talks about the law review. Williams, who is black, said there are those who think the review selection entails "a criteria that separates the students who should be here and those who are here because of affirmative action."

Many angrily dismiss this suggestion, saying there is no direct correlation between students' performance in the review competition and their ability to succeed in law school. They note that almost all the school's African-American students graduate, pass the bar exam and go on to become successful lawyers.

"It's absurd to hint that the law school is admitting people who aren't qualified," said Sisera Dowdy, 24, the outgoing president of the school's Black Law Students Association.

Ms. Dowdy could be right: the fact that Vanderbilt’s black law students cannot compete for positions that only the best students are eligible for says nothing about the former’s qualifications for admission. After all, the majority of white students will never qualify for the Law Review either, and this fact says nothing about the merits of their admission.

But this state of affairs does suggest that the credentials (e.g., LSAT, GPA) of black admittees are probably lesser than those of their white peers. If it were otherwise—if black and white admitees’ credentials were on an even par—one might expect black law students at Vanderbilt to end up on the Law Review in equal proportion to their numbers in the student body as a whole. It would seem that there are only two possibilities: either (1) black admittees are less qualified or (2) admittees with relatively similar qualifications are performing at radically different levels in their first year of law school (i.e., for some reason, black law students are failing to be competitive with whites with similar scores). If the former, then one wonders what the magnitude of the disparity in qualifications is. And what magnitude of disparity would violate governing Supreme Court precedent? That is, at what point would race cease to be merely a plus factor as countenanced by Bakke and become, in effect, the factor.

Vanderbilt could, of course, lay to rest any doubts raised by this situation by simply making its admissions records fully public and by segregating the data according to race. Somehow I doubt that Vanderbilt’s proponents of race-conscious remedies favor the release of such race-conscious statistics. That is one area in which colorblindness is, no doubt, considered a virtue. This alone is suggestive, is it not?

posted by Curmudgeonly Clerk at 10:21 PM

 

Talking To The Mountain:

A reader wrote in to point out that my contention that it would be more productive to stop assessing blame for the origin of the confirmation wars is precisely what my home state Senator, John Cornyn (R.-Tex.), has suggested in a letter to the Senate's leaders that he co-signed with the nine other freshman members of the Senate.

One might view this as a convenient moment for GOP members to suggest that bygones be bygones, as they are presently in power and would benefit from any truce. However, as Cornyn's letter points out, none of these freshman members has participated in the battles of the past—so, at the very least, the signatories cannot be charged with opportunism. Moreover, letting go of the past would also require Republicans to set aside many grievances (e.g., Bork, the Thomas confirmation hearings). Some of those nominated (and confirmed) to the district courts here in Texas, for example, under the present President Bush were originally nominated by the former President Bush, after all.

Both sides can go on in this vein for hours, listing slights imagined and real. But at some point both sides must agree to be reasonable and move beyond these political positions if they truly want to move forward.

Professor G. Richard Shell, the author of Bargaining for Advantage: Negotiation Strategies for Reasonable People (Penguin Books 1999), has a passage early in his book that captures precisely what Cornyn and company have in mind:

Many years earlier and thousands of miles away, in a valley in Tanzania, East Africa, two elders representing separate lineages of the Arusha people were meeting in the late morning under a stand of large, shady trees. Beyond the elders in the distance loomed a 14,000-foot mountain: Mount Meru. Two groups of men flanked the elders, standing on opposite sides of the open area under the trees.

Shade trees are the conference rooms of rural Africa. Like thousands of similar trees near similar villages, these trees near the Arusha village provided a focal point where people could discuss important business at leisure. Today, the trees sheltered a negotiation.

The two elders addressed each other formally, describing a dispute between two negotiating farmers. Each elder described a list of grievances and demanded compensation for various wrongs. Each farmer, echoed by his group, loudly rejected the other's demands and elaborated further on his own elder's arguments.

Each man lay claim to a vacant area of land between their farms that had once been occupied by a family whose lineage had died out. The farmers' dispute had led to a series of incidents: One farmer's son had damaged an irrigation date on the other's land; the owner of the irrigation gate had beaten the farmer's son for trespassing. The father of the beaten boy had gone to the elders, demanding a formal meeting to settle the issues.

The process they were engaged in reflected their African landscape like a mirror. They were, to use the Arusha word for the opening stage of negotiations, "talking to the mountain."

* * *

[T]he two farmers, both of whom were acting competitively in this high-stakes situation, went back and forth all day. The actual bargaining began when the parties started to exchange proposals on how the land might be divided, ending each side's claim to the whole parcel. One of the elders proposed dividing the disputed land along a prominent footpath that formed a natural boundary. Gradually the outlines of a deal emerged, but the two farmers, still angry with each other over real and imagined slights, stubbornly refused to make the concessions necessary for a final agreement. Neither was willing to compromise.

As 5 P.M. approached, the men under the trees began worrying about getting back home to their evening chores. Someone in the crowd called out: "Perhaps someone could find a goat!" There was a murmur of agreement from both groups of supporters. The farmers huddled with their bargaining teams. The social pressure for an agreement was intense.

The farmer who had demanded the meeting in the first place (the one whose son had been beaten) then stepped into the center of the circle. "For the sake of friendship," he said, he would offer the gift of a small goat to his neighbor. He added that he would also help pay for his neighbor's broken irrigation gate and abide by the new boundary.

The owner of the damaged gate then replied that he would make a gift of "some beer" to his neighbor. He, too, would honor the new arrangement. They had a deal. As everyone prepared to leave, the elders set a time to meet later in the week, share the food and drink the two men had pledged, and publicly declare both the boundary and the terms of the agreement. The public declaration and ritual feast served to commit the parties. These ceremonies would ensure that everyone in the community would remember the agreement and help enforce it if necessary.

Cornyn has the right general idea. Elders Daschle and Frist need to cease talking to the mountain and start exchanging serious proposals for the resolution of this thorny, contentious problem.

UPDATE: Of course, dispute resolution is not the forte of all farmers.

posted by Curmudgeonly Clerk at 11:47 PM

 

Yet Another Reason to Fly Southwest via Love Field:

Rod Dreher, Cornerite Emeritus, links to this WFAA News 8 story regarding the security at DFW, the major Dallas-Fort Worth metroplex airport. The details are not pretty:

"There seems to be a complete lack of concern for those things that the traveling public can't see," said Patricia Friend of the Association of Flight Attendants.

She's talking about the International Terminal, the largest construction project in Texas. On any given day, hundreds of workers go in and out of the work site.

Every worker at the airport is supposed to wear a special badge. But in November, 60 maintenance and service workers at the airport were arrested for allegedly forging their ID badges.

And, just a few weeks ago, News 8 saw construction workers boarding buses and being driven into the secure construction site without badges being checked. Sources said that kind of thing happens every day.

Another day, at supply depots where construction trucks load materials, gates stood wide open. One was even locked open.

Additionally, there was no fence behind the site to prevent trespassing onto open land adjacent to the runway.

All of the areas in question are accessible by public roads, which is where News 8 shot video of the site. After shooting for about 15 minutes only a stone's throw away from a runway, no one approached to ask about News 8's presence, much less prohibit the vehicle from driving onto the runway.

The only security guard noticed was posted at an open gate, and was dozing. It took about 10 minutes for him to notice the News 8 crew.

The video was examined by internationally recognized security expert Tony Cooper. Cooper has been hired worldwide by airports and airlines, including American, to identify security lapses.

"(They) wouldn't stop anything," Cooper said.

Cooper was particularly interested in construction vehicles, which by law should be clearly marked with company identification and Department of Transportation numbers. News 8 videotaped several trucks without any ID, including some designed to transport hazardous materials.

One truck also carried a checkered flag, which gave it access to the runway.

The story notes that House member Joe Barton (R.-Tex.) is seeking federal funds to help remedy the security deficiencies at DFW, but is quoted as saying that there is little to worry about:

"There's no strategic value at this airport," Barton said. "I mean, if you were trying to go after strategic assets in this area, it wouldn't be at D/FW."

Maybe, but how much "strategic value" does a target really need when the strategy is simply to terrorize? Apparently, Barton has never heard of the old strategy of "hitting 'em where they ain't."

posted by Curmudgeonly Clerk at 9:28 AM

 

I Have Lusted In My Heart . . .

How Appealing has chronicled the creation of a limited edition Justice Rehnquist bobblehead doll here and here. Howard Bashman is not alone in lusting after the wee bobblehead Justice. I have sorely desired one of these since I first read about them. But for those of us without the foresight to be an early subscriber to Green Bag 2d, we can always go here and enjoy a virtual model.

posted by Curmudgeonly Clerk at 12:39 AM

 

Asymmetrical Perceptions Revisted

In reponse to an item that I posted in reply to an argument advanced by Professor Balkin regarding the purported authoritarianism of the Republican Party, and apropos of a discussion about asymmetrical perceptions by Professor Solum, a Republican attorney working in the U.S. Senate passes along the following:

I thought I'd add another thing that is obvious yet very important in response to Mr. Balkin's argument: Republicans genuinely believe that it is the Democrats who have destroyed our political discourse. Now, we partisans . . . may be wrong about that, but I can tell you that it's a very common belief among Republicans. So any accusation of "they started it" has to take into account how each side feels about their own tactics and about what they're responding to. Partisans like Balkin might feel that it's always Republicans who are trying to shout down Dems, but Republicans feel much the same way in reverse. Is there truth out there? Sure. Is it meaningfully accessible? I don't think so.

Whether partisan or not, there are those who believe the Democrats began the judicial confirmation wars (See, e.g., Juan Non-Volokh's post here on the confirmation wars from the last week of April of 2003). But the greater import of the anonymous Republican e-mailer's remarks is, I take it, that there is really little hope of resolving such a debate. Presumably, it is not a mere coincidence that that those sympathetic to the GOP see the Democrats as being to blame and vice versa. If the parties are serious about negotiating an armistice in the confirmation wars, probably one of the more constructive things that could happen would be to stop having this incessant "'X' started it" discussion.

posted by Curmudgeonly Clerk at 5:48 PM

 

"Blogs Save Lives."

The foregoing quote comes by way of Joey deVilla, a.k.a. AccordionGuy. A friend of mine in the computer technology sector passed along a link to deVilla's site in response to my recent post about the perils of blogging. AccordionGuy runs a personal web log of the sort that has the potential to get one into trouble, but in his case, it seems to have saved him considerable grief. Read about it here.

posted by Curmudgeonly Clerk at 4:36 PM

 

Internet + Indiscretion = Disaster:

The Sunday edition of The New York Times features an article about personal web logs. (Link via Instapundit.) The story details various blog-induced misfortunes. It offers the following vignette as an example:

Heather Armstrong, a 27-year-old Web designer from Utah whose blog is at www.dooce.com, might be the ultimate example of blogging gone awry. Her parents are devout Mormons, she said, but because they are also technophobes, she felt perfectly comfortable publishing an entry on her site in which she harshly criticized her Mormon upbringing.

Unfortunately for Ms. Armstrong, her brother in Seattle stumbled across her Web site that very day and alerted her parents to the entry. After that, Ms. Armstrong said, "all hell broke loose." "Next to my parents getting divorced 20 years ago," Ms. Armstrong said, "it was the worst thing that ever happened to my family. It was shocking for everyone."

Ms. Armstrong's run-in with the perils of self-publishing did not end there. She also wrote about her job and her co-workers in her blog, often hyperbolically.

When her bosses were alerted that Ms. Armstrong was writing about her office life, they fired her, she said. She is now much more careful about what she publishes in her blog, and she had a word of caution for bloggers who write furtively about others. "If you're publishing under your own name, they'll find out," she said. "I was extremely naïve."

Personally, I have never quite understood why people air their personal business in public. You will find precious little in the way of intimate details on this site. Notwithstanding my personal recalcitrance, such personal web logs are not at all uncommon.

Of course, the sorts of mishaps detailed above are not limited to personal blogs. The story in the Times reminds me of an episode related to me back when I worked as a legal assistant for a large metropolitan firm in Texas. One day an associate attorney came racing into a partner’s office, closed the door, and said that he need to show the latter something. The associate proceeded to log-in to a website and, lo and behold, there was the partner’s buxom secretary. She and her boyfriend had started a commercial porn site that featured her with a host of partners, male and female, engaged in a variety of carnal acts. How exactly the associate came across that site . . . well, I am sure that he was not doing legal research.

No kidding, that’s a true story—as related to me by the associate himself. Scout’s honor.

posted by Curmudgeonly Clerk at 7:03 PM

 

Do CNN Staffers Read The News?

CNN is reporting that several explosions rocked Casablanca, Morocco, this evening:

Three booby-trapped cars exploded in front of the Belgian consulate, according to MAP, and another bomb exploded near Casa D'Espangne, a Spanish social club and restaurant. Both Belgium and Spain were allies of the United States and Britain in the war against Iraq.

Didier Seeuws, a spokesman for the Belgian Foreign Affairs Office, said one side of the consulate "was completely demolished." He said no one inside the building was killed, but two Moroccan guards died.

"There have been many deaths in the streets," he said.

Seeuws said it was unclear if the Belgian Consulate was the target or a popular restaurant near it. He said there had been no threats against the consulate.

Did you manage to spot the glaring error the first time through?

Belgium was not, in fact, an ally of the United States or Britain in the recent conflict in Iraq. Belgian society is apparently rife with anti-American sentiment, and the Belgian government belittled Britain for allying with the United States. Prior to the war, Belgium refused to host a conference of Iraqi oppositions leaders. It supported the Franco-German counterproposal to disarm Iraq via inspections. When Turkey sought defensive aid as a member of NATO, Belgium helped foil the request by vetoing NATO involvement. In addition, it threatened to halt all United States military transport through its ports and airspace. In the wake of the conflict, Belgian courts have provided a forum for a human rights lawsuit against General Tommy Franks, and the Belgian government has convened talks with France, Germany, and Luxembourg with an eye to forming a defensive military framework that Belgium would be glad to see rival the U.S.-led NATO.

Now, perhaps, the CNN story’s inaccuracy is nothing more than a garden variety mistake—though it boggles the mind how someone could be in the news business and be unaware of Belgium’s true position on Iraq given the international fireworks over the past several months. But I think that more is at work here.

We do not yet know whether the Belgian consulate was a target, but the facts related in the CNN story give the impression that it was. And the story’s writer seems to have assumed, on some level, that the Belgians were being bombed in consequence of their relationship with the United States. Otherwise, why bother noting the purported alliance with America? This, now doubt, fits comfortably with the view—much heard prior to the Iraq war—that said conflict would only incite further attacks on the United States and its allies.

If it turns out that the Belgian consulate was one of the targets, then it seems to me that this episode will go a long way toward discrediting the notion that removing Saddam Hussein from power invited reprisal. After all, Belgium strenuously resisted war in Iraq and, apparently, found itself in the terrorists’ crosshairs nonetheless.

Nota Bene: Another major news network somehow managed to recall that Belgium opposed the war against Iraq. Is it too much of a stretch to imagine that the differing political outlooks and baseline assumptions of CNN and its competitor explain this result? Probably . . .

UPDATE:

In advance of the Moroccan bombing, The Economist made a similar point here. (Link via Slate.)

posted by Curmudgeonly Clerk at 2:36 AM

 

Connection or Coincidence?

A Chicago-area lawyer (and good friend) at a high-powered firm has e-mailed an interesting rejoinder to my most recent post regarding the Democratic flight from redistricting. In response to my contention that "nothing connects the GOP" to a Texas DPS officer's apparent misuse of Department of Homeland Security resources, he responds that the Dallas Morning News has reported that the officer in question "was working on the hunt for the missing lawmakers, an effort that was run out of a conference room next to Mr. Craddick's office." My correspondent is not the only one who thinks that this is highly suspicious.

This circumstance is indeed curious. And it is certainly worthy of further investigation. Nonetheless, I am not certain that it is a connection in the sense of being a good evidentiary link to the GOP. It may raise certain questions, but it is, at best, weak circumstantial evidence.

Now, I imagine that persons on the left might consider that an awfully charitable interpretation. But consider a similar factual situation: the Republican FBI files collected by Craig Livingston, a Clinton aide, back in 1996. In that case, Livingston was keeping the said files in a vault in his office at the White House. He was alleged to have a shady background, and was rumored to have been hired directly at the behest of Hillary Clinton. Now, the fact that this was occurring in the White House hardly connected the President or First Lady to this scandal in any direct fashion. The actions of subordinates are not always undertaken at the direction of their superiors. And many gave the White House the benefit of doubt.

As it turned out, there was no evidence of senior official involvment in this unsavory episode.

So when I say "no connection," I mean that so far no evidence has been adduced that directly connects the DPS officer's conduct with Craddick or any other official. Just as Livingston's proximity and chain-of-command did not suffice to establish a connection, neither does this officer's proximity and chain-of-command. It is suspicious though, and I am comfortable with further investigation.

posted by Curmudgeonly Clerk at 5:16 PM

 

Pyrrhus (D.-Tex.)?

CNN is reporting that the so-called fugitive Democrats will be back in the statehouse on Friday, having successfully killed the redistricting plan that prompted the walkout. For procedural reasons, that particular piece of legislation had to be voted on by midnight tonight.

It’s not the only proposal that has withered on the vine, however:

[House Speaker] Craddick, R-Midland, said the walkout has killed more than 400 House bills and could cost the state hundreds of millions of dollars, and damaged the state's reputation.

This sort of talk might be expected from Craddick, who Democrats blame for the walkout (when they aren’t blaming Congressman Tom Delay), but other, less expected persons are also disgruntled:

. . . [S]everal black Democrats refused to join the walkout, since the redistricting plan would have created a majority African-American congressional district.

"If they come back and assume that everything's going to be hunky-dory, I think they're mistaken," said Rep. Ron Wilson, D-Houston.

This bit of naked racial politics is quite jarring. It highlights the unsavory nature of redistricting in general. It also suggests that the striking Texas Democrats may have to pay a price for the walkout beyond the ire of their Republican colleagues. The remainder of the legislative session ought to be very interesting.

It is possible that the “Chicken Ds,” as Republicans have christened the fleeing Democrats, may pay some price for the walkout in future elections. Filibusters are one thing, but a procedural maneuver that actually requires one to leave the jurisdiction in order to avoid arrest is quite another. For the apolitically minded Texan, it may be a little difficult to understand, no matter the actual merits of the redistricting plan. Nevertheless, I am not holding my breath. Many state legislative districts are effectively insulated from partisan competition.

Republicans may not come off looking well either. Setting aside any doubts that one might entertain regarding the merits of the redistricting proposal, a Texas Department of Public Safety officer is alleged to have used Department of Homeland Security resources in an effort to track down the fleeing Democrats. Thus far, nothing connects the GOP to this particular decision, but, as this story in the Dallas Morning News (link via Atrios) makes clear, the accusations are already flying:

According to a partial transcript the bureau released late Thursday, the DPS officer told the bureau’s tracking center, “We got a problem and I hope you can help me out. We had a plane that was supposed to be going from Ardmore, Oklahoma, to Georgetown, Texas. It had state representatives in it and we cannot find this plane.”

The urgent phone call set off a scramble Monday night at the customs bureau’s Air & Marine Interdiction Coordination Center near Riverside, Calif. On Thursday, it fueled Democratic complaints at the tactics employed by Texas House Speaker Tom Craddick, who ordered DPS to arrest the state lawmakers who fled Austin to prevent a quorum and block a redistricting vote.

“I don’t begrudge a federal agency for doing its job,” Mr. Laney said. “My concern would be with who caused their activation.”

In Washington, Rep. Jim Turner of Crockett, the ranking Democrat on the House committee that oversees homeland security, denounced the effort to use the nation’s security apparatus in such a manner, which many Democrats blame on U.S. House Majority Leader Tom DeLay, R-Sugar Land, who has pushed for redistricting.

* * *

Mr. Craddick's spokesman reiterated the speaker’s stance that he didn’t involve himself with the nuts and bolts of the manhunt - but said he certainly didn't authorize the phone call.

"Craddick brought the DPS into this, and then it was the DPS’ deal," said spokesman Bob Richter. "Craddick wasn’t saying you gotta do this, gotta do that, telling them what to do and giving them tips."

In the wake of all this, how on earth does the Texas House of Representatives just go back to work tomorrow? Somehow I doubt that many will be looking to let bygones be bygones.

posted by Curmudgeonly Clerk at 11:59 PM

 

Are Republicans Merely Reaping As They Have Sown?

Professor Balkin thinks so. See Balkin's May 13, 2003 "A Bitter Harvest." Using the Democratic walkout from the Texas House of Representatives as a backdrop, he comments on the breakdown in bipartisanship in today’s politics. Unsurprisingly, Balkin sees the lion’s share of blame as belonging to the Republicans, both in the case of the Texas House and the country at large. He links to an editorial roundup of Texas newspapers by “Off the Kuff” that lends credence to the former assessment of blame.

Despite being a Texan, and thus directly affected by it, I remain agnostic on the merits of the walkout. While I have intimated some lukewarm disapproval of the procedural tactics elsewhere, I remain open to persuasion about who is to blame for this state of affairs.

But Balkin squanders his opportunity to do any persuading by setting forth an argument about the deterioration of bipartisanship in general that is so glaringly wrongheaded it poisons the well from which I might have gladly drank. Balkin offers this analysis:

I well understand that it takes two to tango, and that Democrats have contributed to partisan bickering. But I do think the causes of the current breakdown in trust are assymetrical [sic]. They lie in the astounding success of the conservative social movements of the 1980's and 1990's.

The contemporary Republican Party, which is currently dominated by its southern and western wings, has been effectively taken over these conservative social movements, which have brought the Party considerable electoral success in the past twenty years. Many members of these conservative social movements share the zealotry characteristic of true believers, and they are disinclined to compromise their principles. But a more important feature of the conservative social movements that have taken over the Republican Party, and by extention [sic], American politics, is their taste for hardball politics and their fondness for authoritarian rhetoric and tactics. These authoritarian strains are, if anything, more important to understanding our current predicament than the ideological purity of Republican conservatives.

I realize that "authoritarian" is a strong word, but I will use it nevertheless, for it helps us understand the dynamic of American politics in the last two decades. As the Republicans have grown stronger, they have grown bolder, and more determined to have their way regardless of the consequences. Their rhetoric has become more fervent and exclusionary. Their disdain for their political opponents has grown more overt. They have perfected the art of smashmouth politics, believing, often accurately, that the Democrats don't have the guts to stand up to them. The feebleness of liberal responses to conservative attacks has emboldened hard right conservatives even more, and caused them to see liberal Democrats as not only wrong but also as servile, worthless, and unpatriotic. Their rhetoric, and their unwillingness to compromise, have ratched [sic] up accordingly. These trends have helped accelerate the breakdown of trust in Washington, and, if the story I quoted above is accurate, in Texas as well.

My chief objection is Professor Balkin’s deliberate, considered use of the word “authoritarian.” Merriam Webster’s Collegiate Dictionary (10th ed. 1993) defines “authoritarian” as meaning either (1) “of, relating to, or favoring blind submission to authority,” or (2) “of, relating to, or favoring a concentration of power in a leader or an elite not constitutionally responsible to the people.” It’s not clear precisely what sense of the word Balkin has in mind, but it is clear that neither apply to Republicans or conservatives in any diffuse manner. Indeed, Balkin’s arguments in this vein achieve their own refutation.

Let’s get this straight. By Balkin’s own account, the cause of our present discontent stems from “the astounding success of the conservative social movements of the 1980's and 1990's.” And these very same movements “have brought the Party considerable electoral success in the past twenty years.” In other words, conservatives have succeeded in electing likeminded public servants and achieving their aims via the democratic process. A corollary to societal and electoral victories in an open, free nation is popular support.

This is hardly evidence of authoritarianism, so Balkin argues that these Republican successes have resulted in victory disease: GOPers are allegedly so used to winning that they have forgotten how to play well with others and must now win ever greater victories if their increased appetites are to be sated. Balkin does not bother to explain why democratically achieved victories would inspire undemocratic tactics rather than renewed democratic efforts. After all, if one can achieve one’s aims via the democratic process, there is little need to resort to coercion.

And there’s the rub: in both the Texas House and in the United States Senate, Republicans could achieve their aims via the democratic process. Setting aside the merits of any particular measure, having duly elected majorities to both chambers, the GOP has only to bring legislation or a nomination to the floor in order to succeed. The Democrats, having lost at the polls; apparently unable to persuade any Republicans to break ranks, they must resort to counter-majoritarian procedural tactics not to win, but merely to keep from losing in a democratic forum. It turns the facts on their heads to suggest that a party that would win if an up-or-down vote were held is behaving in an authoritarian manner. (Of course, it is likewise not authoritarian to leverage existing procedural mechanisms like quorum and the filibuster to require compromise.)

The use of the word “authoritarian” in this context is positively Orwellian. I realize that “Orwellian” is a strong word, but I use it nevertheless. At best, Professor Balkin’s use of the word “authoritarian” is little different from the ubiquitous and thoughtless manner in which the term “fascist” was once (and occasionally still is) bandied about as a term of denigration for all things Republican. It’s reminiscent of recent protest signs equating Bush with Hitler. But one does not burn down the Reichstag unless one fears it. Right now, Republicans have nothing to fear from the majoritarian legislative assemblies in Texas and Washington, D.C..

posted by Curmudgeonly Clerk at 9:08 PM

 

Speaking of Filibusters . . .

Professor Solum continues his bid to become the undisputed BlogCzar of all things confirmation-related with multiple posts on the topic: here, here, and here. In the first of the preceding links, Solum, in turn links to an editorial by Terry Eastland in The Weekly Standard that I had also noticed. Three points merit attention.

First, Professor Solum pithily explains why calls for the Republican majority to force the Democrats to actually engage in a formal, round-the-clock filibuster is self-defeating:

Eastland writes, "Not incidentally, the Senate Republican leadership could force the Democrats to conduct a real filibuster—marathon, stay-up-all-night sessions like those of yesteryear. That might fix the process real quick." This myth has long been debunked. 24/7 works to the disadvantage of the majority—which must maintain a quorum 24/7 to keep up the pressure. The filibustering minority needs only have one or two members present. No modern filibuster has been broken by the 24/7 technique.

This is a nice point, which is apparently a result of the intersection of Senate Rule 6 and Senate Rule 22.

Second, Professor Solum’s middle post is an attempt to discern a pattern in the recent confirmation wars. It is rather detailed and features multiple charts/graphs. Howard Bashman has exhibited skepticism that parallels my own; as I have previously stated, I’m not sure that the present situation is amenable to rational explanation.

Nonetheless, Professor Solum has drafted a nice conceptual model, one which clearly has some explanatory power. Conceding that fact, what Solum’s model does not seem to explain (and may not be intended to explain) is when and why an opposition minority party would choose to filibuster rather than merely vote against a candidate. One might be inclined to conclude that a minority would filibuster whenever a candidate fell a certain, specified distance outside of its “confirmation zone.” See Solum’s second chart in this post. But, as Professor Solum has previously acknowledged, filibustering judicial nominees violates a longstanding Senate norm. Therefore, it seems that something additional is required to explain what propels a minority from mere disapproval to refusal to even countenance a nominee.

To state the issue in a concrete example, why vote to confirm Clarence Thomas to the Supreme Court (52 to 48), but filibuster less controversial nominees to the lower courts (viz. Estrada, Owen, and potentially Kuhl)? It is this particular phenomenon that makes the matter seem capricious and unprincipled. That is, Solum’s model potentially explains why a prototypical Senate Democrat might vote against the confirmation of Owen. It does not, however, explicate why Senate Democrats are willing to violate Senate norms and dramatically escalate the confirmation wars by refusing to even let her nomination come to the floor, or why they have chosen her as opposed to any one of the President’s equally conservative nominees.

Professor Solum attempts, I think, to answer this question in the following manner:

It is possible that Democrats [and Republicans] are systematically biased. . . .

. . . . asymmetrical perceptions could lead to a situation where Republicans believe that the Democrats are violating a confirmation norm by refusing to confirm, but Democrats believe that Republicans are violating a confirmation norm by nominating Estrada without offering a political deal in return for Democratic cooperation. If you add to this, a history of escalation, you would have a recipe for a battle royale on the Estrada nomination. And that is exactly what we have.. . .

If I understand Solum’s meaning, he appears to be saying that the reason that someone like myself cannot understand the Owen filibuster is because I evaluate her differently than Democrats do due to certain biases and asymetrical perceptions and vice versa. That is, Democrats and Republicans are two ships passing in the night on this issue. Is there no (more) objective measure of judicial qualifications then? Is it all subjective? Does the ABA’s unanimous well-qualified rating of Owen have no meaning beyond being a pro-confirmation talking point? If all there is at the end of the day are the parties’ systematic biases and asymmetrical perceptions, then the process is hopelessly irrational and political.

What I find discomfiting about this potential explanation is that it seems, in effect, to deny any hope of objectivity in the confirmation process (i.e., any assessment of the nominees’ credentials, qualifications, temperament, integrity, etc. via defined criteria). Even if there are objective criteria or facts, the selectors’ ideological leanings seemingly preclude their apprehension under Solum’s theory. How would one go about fixing this situation? What procedural mechanism might be installed to rationalize the confirmation process if it is as Solum suggests?

Notwithstanding my misgivings, Professor Solum’s model has the benefit of at least one recent data point that arguably supports it. Solum intimated that horse-trading might be a suitable mechanism for reigning in what I perceive as the irrational tendencies of the confirmation process. And, lo and behold, what should appear to my wondering eyes? This story in The Hill (via How Appealing). Until the political balance of power has decisively tilted in one direction, such horse-trading may offer the only solution. Unfortunately, it seems to me that the stakes have been ratcheted up so high that no stable political settlement is possible, particularly with reference to the fights over Estrada and Owen.

Third, Another Weekly Standard essay penned by Terry Eastland suggests that the solution to this lies on the campaign trail, in using the present debate to help change the balance of power in 2004. Being that we are still over a year out from elections, nothing is particularly clear. This PDF document identifies all senators that must stand for election in the next cycle. In the Standard editorial first cited above, Eastland writes:

In 2004, 19 of the 34 seats at stake in the Senate are Democratic, and independent observers believe Democrats can be confident of retaining no more than 9 of the 19, while Republicans can count on holding at least 10 of their 15. Can Democrats really relish the prospect of President Bush's campaigning in states like Georgia, South Carolina, North Carolina, Florida, Arkansas, Nevada, North Dakota, and South Dakota, and talking, as he did in Rose Garden remarks last week, about the "crisis in our Senate" and "therefore . . . in our judiciary" produced by Democratic filibusters designed "to prevent an up-or-down vote on an appeals court nominee"?

If the GOP concurs with Eastland’s analysis, there will be no near-term armistice in the confirmation wars, because, it ostensibly will not behoove Republicans to make peace and deprive themselves of the campaign issue. I am skeptical that this particular campaign issue resonates much beyond lawyers and political interest groups. But I could be wrong.

posted by Curmudgeonly Clerk at 1:42 AM

 

The History of the Filibuster

The United States Senate website has an interesting thumbnail sketch of the history of the Filibuster. Although it is doubtless little consolation to the current Republican majority, it has never been easier to break a filibuster. Indeed, historically speaking, the filibuster has been much more powerful than the present version. Apparently, a right to unlimited debate, without any cloture mechanism, existed well into the Twentieth Century.

Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote—a tactic known as "cloture."

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.

I’m not sure that this history lesson offers any insight into the present impasse. It does reveal a somewhat uneven trajectory toward the gradual emasculation of the filibuster. But it is hard to see how the filibuster could be weakened further without simply eliminating it.

posted by Curmudgeonly Clerk at 9:16 PM

 

Have You Seen Me?

Apparently, Texas authorities are going to have to place the faces of Democratic state legislators on the back of milk cartons. As reported in the Dallas Morning News, Democratic representatives fled the Texas House of Representatives, and the state, in order to deprive the body of quorum and thereby derail a redistricting plan that the GOP majority would otherwise enact. Most have apparently fled to Oklahoma, where they are out of reach of Texas authorities, because the rules of the Texas House allow those absent without excuse to be arrested in order to secure their attendance. Rule 5, Section 8. One Representative who absented herself, but didn’t have the sense to abscond the state was indeed arrested:

[Helen] Giddings [D.-De Soto], visibly upset after being escorted back to the House by a DPS trooper, fought back tears as she reiterated her desire to stop redistricting from moving forward in the state.

Oklahoma’s Democratic Governor, Brad Henry, has indicated that he has no intention of assisting Texas’s authorities in apprehending the errant lawmakers:

"Our position is that, without a warrant signed by a judge, we have no authority. Even under those circumstances, we are hesitant to get pulled into a Texas political battle. If we're going to do battle with Texas, we prefer that it be on the football field," Mr. Henry said through his spokesman.

New Mexico’s Democratic Attorney General was less diplomatic in her uncooperativeness:

New Mexico Attorney General Patricia Madrid said it appeared her state had no authority to arrest the lawmakers if they show up there, despite being asked to do so by the Texas governor.

"Nevertheless, I have put out an all-points bulletin for law enforcement to be on the lookout for politicians in favor of health care for the needy and against tax cuts for the wealthy," said Ms. Madrid, a Democrat.

Frustrated Texas GOP House members have been equally tart. Diane Delisi (R.-Temple) generated via computer a deck of playing cards similar to the one used by United States military forces in search of Iraq’s most wanted that features the visages of her missing Democratic colleagues.

The last time that this occurred was apparently in 1979, when twelve Democratic state senators absconded from the Texas Senate over election-related legislation.

As this story relates, the Texas House presently has 150 seats and is in Republican hands for the first time since Reconstruction. Quorum requires the presence of 100 members. Fifty-three of the chamber’s 62 Democrats are apparently in hiding, thus preventing a quorum by the narrowest of margins.

Although I have not undertaken a survey of the rules of the nation’s statehouses, the Texas House’s quorum requirement strikes me as unusual. Robert’s Rules of Order Revised generally requires only a majority of a body’s membership to establish quorum. See id. at Art. XI., § 64. Even the United States Senate, which grants the minority party substantial rights, requires only a simple majority of the membership in order to achieve quorum. It is not immediately clear why the Texas House has such a high quorum requirement. Presumably, Republicans will want to look into modifying this rule.

Hmmm . . . modifying procedural rules in order to halt the obstructionist tactics of a sizeable minority . . . now, why does that sound so familiar?

posted by Curmudgeonly Clerk at 7:19 PM

 

A Good Joke Cannot Be Criticized:

Some time ago, Professor Volokh repeated a common anti-French joke that is making the rounds once again due to France’s recent obstreperousness:

American to Frenchman: “Do you speak German?”

Frenchman: “No.”

American: “You’re welcome.”

Although it is not apparent that Volokh intended his recitation of this joke to be taken seriously, Professor Balkin was none too amused. In particular, Balkin argued that it was French intervention in the Revolutionary War that secured the Colonies’ victory over the Crown.

There has subsequently been some debate as to the accuracy of certain details discussed by Balkin, though no one appears to be arguing with Balkin’s basic point.

Although Professor Balkin’s premise is correct, I believe that he has erred in emphasis by dwelling on France’s role in the colonials’ land victories and underemphasizing, albeit acknowledging, the role that the French navy played in securing the independence of the colonies.

It is important to place the Revolutionary War in its global context. Although the American colonies declared their independence in 1776, Great Britain was soon embroiled in war not only with the colonists, but also with the French, Spanish, and Dutch that stretched from India to the New World. Seeking to overturn the balance of power established by the Seven Years War, France initiated hostilities in 1778. Prior to that, France had clandestinely aided the colonies; after the colonial victory at Saratoga in 1777, France had openly aided the colonists.

Spain entered the fray in 1779 on the side of the French. Together the two nations effectively enjoyed naval parity with the British. In 1780, Britain foolishly declared war on Holland after the latter failed to honor the Anglo-Dutch Treaty of 1678. This tilted the initiative to the anti-British forces for most of the remainder of the war.

This broader war undercut Britain’s efforts in the Western Hemisphere, producing several Spanish victories over the British in Florida and French victories in the Carribbean in 1781. But of the most importance to the American colonists, in September of 1781 French naval forces prevailed at the Battle of the Virginia Capes, which prevented resupply of Cornwallis’s forces at Yorktown. This, in turn, led to Cornwallis’s surrender at Yorktown to a combined French/colonial force in October after weeks of siege and blockade. Yorktown and the anti-British coalition’s continued naval dominance in the Western hemisphere sealed Britain’s fate in North America.

For a thorough account of the naval war and its effects, see generally Jonathon Dull, The French Navy and American Independence (Princeton Univ. Press 1975).

Of course, none of this detracts from Professor Balkin’s overall argument. Indeed, it strengthens it. Reading Dull’s account leaves no room for doubt: without the assistance of France and its allies, the colonies would not have prevailed.

In a commentary on Charles Dickens’s Pickwick Papers, G.K. Chesterton wrote that, “A good joke is the one ultimate and sacred thing which cannot be criticized.” If I understand Chesterton correctly, I conclude from the foregoing recitation of facts that the anti-French jibe in question is not a good joke.

posted by Curmudgeonly Clerk at 8:28 PM

 

A Duty to Allow Facilitation of Illegal Immigration?

Randy Tunac draws attention to an article in the Arizona Republic that discusses a lawsuit brought against the federal government by the relatives of several would-be illegal immigrants who died while crossing the desert between Mexico and Arizona. Overlawyered drew attention to this case back in May of 2002.

The suit sounds in negligence, the theory being that the migrants’ deaths could have been prevented if the government had allowed a humanitarian group to set up way-stations along the route traveled by illegal immigrants. As the story relates:

The lawsuit contends that the immigrants' deaths could have been prevented if a humanitarian group had been allowed to install water stations in the desert. A month before the 14 crossers died, the group Humane Borders requested permission to put water stations in the "exact area" where the men died in the Cabeza Prieta National Wildlife Refuge east of Yuma, according to the lawsuit. That request was denied.

The suit also said that the federal government's crackdown on illegal immigration in urban areas along the U.S.-Mexican border forced immigrants to risk crossing the desert in remote, dangerous areas.

The victims, all Mexicans ages 16 to 40, paid a "coyote," or smuggler, $1,400 each to lead them through the Arizona desert to a highway where they would be picked up and taken to Phoenix. They were told the trip would take two days.

Instead, they were found dead of heat exposure on May 23, 2001, after the smuggler abandoned them in temperatures that peaked at 115 degrees.

"I do think the policy of our government has created a very dangerous situation for migrants," said Andrew Silverman, a University of Arizona law professor. "By concentrating our efforts in more urban areas of the border, we know from prior summers that people are going to die in the deserts."

Silverman said there is "some legitimacy to the suit."

"Just because someone may have violated an immigration law, it doesn't mean that if our government does something wrong it shouldn't be held liable," he added.

However, the story quotes others to the effect that this lawsuit has virtually no chance of success. The “others” seem to have the better argument. Without having done any legal research in the matter, it seems beyond peradventure that would-be lawbreakers cannot premise a negligence action on the government’s failure to facilitate, or failure to allow others to facilitate, illegal conduct. Assuming the facts are exactly as the plaintiffs aver, if Human Borders had set up its way-stations, would it not be guilty of either conspiracy (8 U.S.C. § 371) to bring in or harbor aliens (8 U.S.C. § 1324), or illegal entry (8 U.S.C. § 1325(a)) itself via the aiding and abetting statute (18 U.S.C. § 2(a))? If so, the plaintiffs’ claim rests on the proposition that the government should have granted a non-governmental entity permission to assist others in violating the government’s immigration laws. Surely, the government has no duty to allow such conduct. To accurately state the plaintiffs’ case is to decide it; their cause of action is itself a reductio ad absurdum.

posted by Curmudgeonly Clerk at 2:47 AM