The Curmudgeonly Clerk

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Friday, May 30, 2003
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.

Thursday, May 29, 2003
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 ( 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 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.

Wednesday, May 28, 2003
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.

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.

Tuesday, May 27, 2003
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.

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?

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:


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.

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.

Monday, May 26, 2003
“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.

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.

!@#$%! 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.

Friday, May 23, 2003
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.

Thursday, May 22, 2003

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.

Wednesday, May 21, 2003
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?

Tuesday, May 20, 2003
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.

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."

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.

Monday, May 19, 2003
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.

"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.

Sunday, May 18, 2003
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, 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.

Saturday, May 17, 2003
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 . . .


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

Friday, May 16, 2003
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.

Thursday, May 15, 2003
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.

Wednesday, May 14, 2003
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..

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.