Saturday, June 25, 2005


If you have been reading this blog, you understand the high value we put on political conversation. In that spirit, I want to urge readers to comment on the posts. It would be fun and interesting, don't you think? I have a hard time imagining that our posts leave nothing to be said on the chosen subject. I know you have to register with Blogger to comment, which stinks. But just make up a name and the other information. I like to use Frank Hardy, of the Hardy Boys. We really are interested in hearing what you think.

I also wanted to thank SCOTUSblog for linking to us. It is no coincidence that there is some conversation going on under the post they linked to.

Judicial wedge issues, or the autonomy of the American conscience

When the President addressed the Southern Baptist Convention and its 16 million members the other day, he promised them he would work to ban gay marriage and abortion. This is how the Economist starts its piece on "America's Religious Right". It then proceeds, without blinking, to discussion of the filibuster controversy and the expected battle over the Supreme Court nomination.

Why should we accept the assumption that the abortion and gay marriage are linked to judicial nominations? Why should we think that American evangelicals would prefer a extreme right-wing nominee to a more moderate choice? Indeed, why should we accept the over-used and under-theorized phrase "the religious right"? Why should we think that evangelicals, Catholics, or Orthodox Jews should necessarily be affiliated with one party? It does a disservice to these religious communities to pigeonhole them in this way and, as such, it is another signal of the disrespect with which many religious Americans feel treated by pundits and politicians alike.

Of course, the Economist is a smart rag. It is worth heeding the assumptions it makes. The majority of each of the religious communities I named did vote for Bush over Kerry. But so did a lot of other Americans, of all sorts of communities. The question for us here is, why would the religious communities in question support an extreme right-wing nominee of the President's? As the Economist points out: abortion and gay marriage. (Let me refer only to evangelicals and Catholics now, as those are the communities I know more about, being myself a member of one of them.) These are contentious and complicated issues, and proponents and opponents tend to reduce their complexities to single talking points. Gay marriage, for instance, is either about showing respect and humanity to admirable and loving homosexuals or it is about showing respect and reverence for traditional and proven conceptions of family and marriage. Both are laudable in themselves, but the opposing positions tend to pass one another like two ships in the night. The contradiction is more implied than argued for. But this is inevitable when people with very differently articulated (though, again, not necessarily contradictory) fundamental commitments attempt to have a conversation. I personally support the principle of gay marriage -- strongly -- but I also think that the country needs time to sort through its varied and complex feelings on the matter. It needs to discover the coherent and mutual assumptions on both sides and get used to the way they are expressed by the other side. In other words, it is not time for a court ruling on gay marriage. If the court were to strike down as unconstitutional one of the state bans recently passed (as I think it would have to, given the 14th amendment), that would serve only to drive both sides farther from mutual comprehension. It would be a shallow salve to a deepening wound and encourage the festering, not the forgiveness, of past offenses. Abortion is yet more intractable an issue and there is even more urgency for a committed conversation there.

I dispute the Economist's description of the political and cultural issues pressuring the judiciary not with a counter-description, but with a prescription. Let's not turn the judiciary into a gladitorial arena for combat to the political death. Let's talk some more before going to war; let's arrest the issues of contention. If we can do that, we can also set free individuals, whose religious commitments on abortion and marriage now compel them to make hard choices about whom to support. The Economist, deeper thinking than most of its peer publications, underscores the contradictory political commitments that can stem from coherent religious commitments.
This drive towards co-ordination [by the "religious right"] is complicated by an attempt to broaden the message to issues such as the environment (“creation care”) and poverty, both traditionally associated with the left. Many leaders are suspicious about cosying up to leftish types; others see it as a way of strengthening the coalition. So far, the main alliances with the left have been in the relatively safe field of foreign policy. Rick Warren, a preacher whose “Purpose Driven Life” has sold 20m copies, recently wrote to Mr Bush urging him to cancel the debts of poorer countries, and the religious right joined up with black Democrats to pass the Sudan Peace Act in 2002.
In fact, an evangelical is just as hard to define as any other thinking, conscience-driven individual. Let's structure political debate in such a way that members of religious communities are allowed to define themselves, in their own terms. There is a lot of room for thinking and conscience-driven people of all religious inclinations to find a judiciary that they can trust and respect.

For your pleasure and edification

Interesting book review by Anthony Lewis in NYRB -- Speaking Freely: Trials of the First Amendment. It starts with a nice reminder about the living character of the constitution (cf. "judicial activism") and, along the way, gives just due to the potential importance of dissenting opinions on the Supreme Court (cf. O'Connor on Kelo?).

Friday, June 24, 2005

Students for the Judiciary

Hurtling Towards 'Victory'

Opening salvos, war chests, savage battles, and total warfare. The nuclear option, Armageddon, armistice, cease fires, truces, and treaties. In the current Americanist political temper, the politics of democracy have devolved to zero sum political warfare, and military metaphors such as the above litter the print world and unfortunately accurately encapsulate the current terms of the Supreme Court nomination debate. Both sides have ratcheted up strategies, funding, and organizing efforts, and are poised for the day when President Bush submits a Supreme Court nominee to the Senate. Such activism and resolve are to be commended, and indeed are essential to the sound maintenance of a democracy. More disconcerting and more detestable, however, are the means by which certain groups are pursuing their goals, means that are hurtling them beyond the pale of our democracy and democratic principles as they pursue their 'victories.' And such means to a 'victory' should be abhorred by all, irregardless of political stripe for they represent an affront to the principles our society is based upon.

Both sides to date have continued to express an unwillingness to compromise on nominees. Although developments between Senate Democrats and the Bush White House Press Secretary Scott McClellan, yesterday suggest at least an acknowledgement of the need for consultation, President Bush has still left unanswered the letter drafted by 43 Democrats and one independent, James Jeffords. Regardless of this public avowal, which one certainly hopes will reflect the ensuing debate so a consensual conservative can be appointed, the rhetoric of aides, lawyers, and lobbyist involved in behind the scenes maneuvering and planning suggest that patent and uncompromising partisans, limited debate, and democratic malfeasance, all of which eclipse our democractic principles, are more likely to set the tenor for the nominations to come. In the vein of such acrimonious and uncompromising sentiments, M. Edward Whelan III, President of a highly influential public policy organization and former clerk for current Supreme Court Justice Antonin Scalia, remarked to an AP writer, "If you're ready to compromise, you're probably going to end up with someone pretty bad." Good for democracy, bad for partisan interests advocated by Whelan and those of a similar ilk.

As Bush is strategically moving forward in naming a judicial nominee, White House officials have publicly stated that they are pondering two tactics for naming a nominee, neither moving significantly the terms of debate beyond the sentiments voiced by Whelan. One White House strategy seems dangerously subversive to democracy and a blatant affront to such principles, while the other seeks to frame democrats as obstructionist, both tactics illustrating the apparent unwillingness of the Administration to engage in a principled debate over potential jurists; but the former seems most reprehensible. This tactic, according to Jesse J. Holland, AP writer, "favors a quick pick," and then "Senate Rupublicans push for a quick vote." Such a maneuver seeks to subvert democracy by limiting debate and baldly outstripping the minority party's ability to vet any potential nominee. And moreover, suggests that any advise and consent on the part of the senate minority party, is nothing but mere platitudinal rhetoric.

Critical thought, thoroughness, and vigorous debate seem in today's political climate limited, lest such proceedings foil a potential nomination. This seemingly is at least something that hinders the case of J. Michael Luttig, a jurist on the fourth Circuit court based out of Richmond. Luttig has an extensive record compiled over his fourteen year service. And rather than suggesting that such extensive experience prove as a worthy characteristic of a Supreme Court nominee, it has proven to be a fundamental drawback. Such experience according to Peter Baker, another AP writer provides not potential merit as a jurist to serve on the Supreme Court, but rather "ammunition." Fodder for the war.

When facts prove nothing but 'ammunition,' for debate, it seems only a small degree of ideological slippage to when we begin to disavow the necessity of debate. If debate is viewed as patently partisan, acrimonious, and nothing but petty squabbling, it calls into question the merits of debate itself. What is the point of debate some might begin to ask if merit and non-partisanry are cast aside and all rhetoric and arguments of the debate are viewed as tendentious, purely subjective? There is no exchange of ideas taking place. I've gotten a bit sidetracked, but debate and critical analysis should never be viewed as inimical to a democratic society. And one is not being a hack to assert that such sentiments are at least being undermined in the current political climate, a fact which should unnerve us all as Americans. When the importance of debate is waning, then the same can be said of democratic institutions.

What extensive debate, critical analysis, and thorough vetting of nominations at the present moment do seem to prove inimical towards is the pursuit of partisan populist interests at the expense of democractic interests. We as a democratic society should embrace debate, not seek to subvert and limit it. We should acknowledge and incorporate the voices of the minority party and the constituents that they represent for America is a democratic society, not populist one. We, as Americans, who embrace democracy should then hope that the President as well as Senators on both sides of the aisle, maintain a transcedent vision of democracy, placing the ideals of America beyond the reach of immediate partisan ones, and conduct the nomination and debate, with prudence, integrity, and forthrightness, for we deserve nothing less. And 'victories' that can be attained with out these qualities, are truly pyrrhic ones and victories which no American should what to claim.

Thursday, June 23, 2005

Shrinking Political Capital

Steve Clemons of the Washington Note has been doing a bang-up job following the Bolton nomination. His post this morning details the increasingly bi-partisan feeling in the Senate that the Bush administration should make available the documents, which Sens. Biden, Boxer, and Dodd have requested from the White House. All this implies something bigger -- and something interesting for anyone following the fortunes of the judiciary.

On the one hand, the inflexibility of the administration bodes poorly for any debate over the suitability of a judicial nominee. If the President likes the nominee -- as his supporters are proud to point out -- he will stick with the nominee. By the same token, the stubborness suggests that President Bush is unlikely to take into account the explicit instructions in the Memorandum of Understanding, which resulted from the filibuster compromise: that he choose nominees in full consultation with the Senate, rather than picking them on his own and simply presenting them to the deliberative house for approval (a problem Chris treats below).

On the other hand, the Bolton nomination troubles indicate that the President may have more difficulty "going it alone" with his judicial nominees than he might anticipate. First, because of the filibuster controversy, the Bolton controversy, and the very controversial character of Supreme Court appointments, whatever nominee the President selects will not only be subject to a high degree of Senatorial scrutiny but will also be the object of great attention from the public at large. Second, many Republican Senators are simply tired of the President's mode of operation. The Republican half of gang of 14, which forged the filibuster compromise, those Senators who now call upon the President to let the Senate perform its constitutional duties -- these officials are adamant about doing what they were elected to do. They are also sick of the divisiveness of this administration. It is impossible to predict, of course, but the signs point to a strong centrist body in the Senate, who will find it unreasonable if the President nominates an extreme or unqualified person for the Supreme Court.

Things tend to work in cycles or, if you prefer, on the motion of a pendulum. The President has pushed the public confidence he won in the aftermath of 9/11 too far; he has absorbed too much power into the White House. The Senate is asserting itself and the pendulum is swinging back to the center.

New Chief Justice speculation and a strategy for confronting a nomination

Today's Christian Science Monitor has a great article on the readying battle over Chief Justice William Rehnquist's seat on the United States' highest court.

According to CSM, the announcement that he is resigning could come as early as next week. Others speculate that it won't happen this term, he'll do it next term. Essentially, no one knows what Rehnquist's plans are--not even President Bush.

Instead of speculating on possible nominees, I think it is worthwhile to look at the PR battle that will emerge when a potential nominee is being considered, when he or she actually becomes a nominee, and how Democrats should fight this battle.

Here is how the CSM defines the structure of the PR battle:
"The public can expect a two-phase PR blitz, first when a justice announces retirement, then when the White House nominates a replacement. The gap may be a matter of minutes, a few days, or even a few months, depending on White House strategy."
Now, I know there are hundreds of files floating around liberal and conservative groups on the pros and cons of each potential candidate, so the minute after the announcement is made, we'll be seeing massive emails sent out from activist groups to members and the pundits from every imaginable perspective will be on TV.

How should be approach a candidate that doesn't really appreciate his or her place in the judiciary? Well, first of all, President Bush, at least in this second term, has been especially inept at defining an adequate frame for his nominees--judicial or otherwise (such as the Bolton nomination). What we should do is quickly obliterate any framing the White House may try and create. Unleashing our strong opposition at full force is a critical step--at least for a Supreme Court nomination.

Second, if the candidate is chosen without bipartisan consultation, we need to stress that for as much as President Bush spews the rhetoric of compromise and bipartisanship, his negotiation and communication skills with the opposition are non-existent.

Finally, for any Washington insider who thinks the Democrats should offer an alternative nominee, that is just ridiculous. We should have a list for the consultation--should it happen--but if we don't like a nominee, we shouldn't have to give other names we'd find more acceptable. Why? Because at that point we start giving up positional footing to the Washington Republicans.

Nevertheless, we shouldn't be caught up entirely in strategic details. This is most likely going to be a challenging and tough battle, but one I believe we can win.

One important consideration is Sen. Majority Leader Bill Frist and his ability to bring back the Nuclear Option. I'll talk more about how to confront that in a post later today.

Wednesday, June 22, 2005

The Growing Imbalance between Freedom and Security

In my last post, I wondered whether Alberto Gonzales' poor, poor record on safeguarding American liberties and freedom would make him a worse Supreme Court Justice than some of the other possible nominees of President Bush. I wasn't able to answer that question for myself.

I might have seemed to be begging another question, however. Isn't it necessary to compromise freedom for the sake of security? No. Absolutely not. This is a false tradeoff, and the assumption that security and freedom are mutually exclusive is a dangerous one. Indeed, our goal in defending ourselves against terrorists is precisely to ensure our way of life, our liberty, and our pursuit of happiness.

Make no mistake: the security debate itself, such as it is, does much harm and little good. A very important piece in the Washington Post demonstrates this beyond any reasonable doubt. (It is the first in a series you can reach through links alongside the article.) It concludes that for all the damage done to American freedoms, the administration has made very little progress in protecting us against terrorism.

The numbers are revealing.

President Bush, with Alberto Gonzales by his side, claimed that "federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted."

The Post demonstrates that this claim is not only misleading, but flat-out untrue. Of the 400 claimed by the President:
* 39 people were convicted of crimes related to terrorism or national security
* Only 14 people convicted of terrorism-related crimes have links to Al Qaeda.
* The rest of the purported "200" were convicted of relatively minor crimes, which had nothing to do with terrorism, such as making false statements and violating immigration law
* Among all the people charged as a result of terrorism probes in the three years since Sept. 11, 180 showed no connection whatsoever to terrorism or terrorist groups.
* For the entire list of convictions, the median sentence was just 11 months.
* 10% of the list of convictions claimed by the administration is made up by 20 Iraqi truck drivers who were publically absolved of any connection to terrorism in 2001, four years ago.
These numbers do not include the people held at Guantanamo Bay or at secret locations around the world. Nor do they include many of the approximately 50 people the Justice Department has acknowledged detaining as "material witnesses." It is clear that the great majority of these people, detained and many of them tortured, have as little connection to terrorism as the President's 400.

Here are two examples of convictions the President includes as part of his claims that his administration is effectively stopping terrorists:

* Hassan Nasrallah, from Dearborn, Mich., was arrested because of a false tip and because he has the same name as the leader of Hezbollah. He was convicted of minor credit-card fraud.
* Francois Guagni, a French national, was arrested because he illegally crossed the Canadian border with box cutters in his possession. He uses the tools in his job as a drywall installer. He pleaded guilty to unlawfully entering the country.

These numbers mean one of two things.
1. The Administration's attempt to locate sleeper terrorists is fundamentally flawed; it has failed to uncover the threats that exist on U.S. soil
2. There is very little threat to the United States from sleeper terrorists in the first place.
The second is far more likely.

The consequences, however, of the over-eagerness to investigate, arrest, and detain people with no connections whatsoever to terrorism are frightening. Detentions, interrogations, infringements on civil liberties, substantial damage to the lives of innocent people rise much much faster than any progress towards greater security.

The conclusion: there is no balance. Faux security is destroying true freedom.

Gonzales as a Justice

Alberto Gonzales does not appear one of the two or three most likely candidates to become the next Supreme Court nominee, but he is creeping up there pretty quick. He features prominently in the most recent analysis of nomination scenarios, from Jan Crawford Greenburg of the Chicago Tribune (hat tip: SCOTUS nomination blog).

Gonzales raises a hard question. One the one hand, he is likely to be the most acceptable of the potential candidates to Democrats, because of his liberal to moderate stances on abortion and affirmative action. It would be a relief to see an easy confirmation, on which Republicans and Democrats were able to find consensus. Moreover, for the same reasons he would be confirmed with relative ease, we can be confident that his legal views respect mainstream American opinion. On the other hand, Gonzales infamously wrote the memo justifying torture of (innocent) detainees. He has also acted to shield the executive branch from scrutiny in general. Both of these stances represent a real danger to our democracy.

There would be a symbolic problem, of course, with putting a man with that record on the Supreme Court. But the real problem is very much a substantial one. It strikes me that the most important future cases on both the questions of rights and the question of the prerogatives of the government will arise from security concerns. We will not eliminate international terrorism during the course of his tenure, and we will never be able to be 100% sure that there is not a potential bomber hiding somewhere in, say, Missouri. That means there will always be pressure to restrict liberties and to expand the government's reach into the lives of its citizens; there will always be those who want to abandon the US Constitution. Gonzales should be expected in general to side with government power over individual rights and democratic transparency/accountability in this legal arena as well as others.

How should we respond, if he is nominated? It seems to me to be a question of weighing his generally reasonable approach to the law -- how much good would this do, relative to another potential judge who would take much more extreme and harmful positions? -- against the harm he would do if given the chance to infringe upon constitutional liberties in the context of the security debate. I do not know enough about Gonzales' positions on other isses to answer this question.

(I personally do not find abortion and affirmative action to be nearly as clear-cut as many progressives do. I do find his attitude towards mandatory sentencing disturbing and counter-productive in exactly that way that people who put rhetorical morality over practical solutions to real problems can be.)

Tuesday, June 21, 2005

What would an "imperial presidency" be without patronage?

I've been hearing this phrase "imperial presidency" bandied about with respect to the current administration to evoke its non-democratic behavior. Some might take offense at this label, but I thought I'd consider whether this is anything but the kind of everyday backbiting that goes on in heated partisan debate. A free and independent judiciary is a necessary part of a healthy democracy because it is the branch that arbitrates disputes between all parties, from the individual to branches of government themselves.

One feature of non-democratic societies is that those who are not already in the inner circle of power (the aristocracy or oligarchy) must rely upon the beneficence of an insider to advance in his or her career. Nepotism is a similar circumstance: one candidate receives unfair advantage because of private ties, potentially leap-frogging over more qualified people--and the concern is that as a result, those private arrangements result in a loyalty that puts the good of the patron above the institution--in this case, the citizens and government of the United States of America. Nepotism is generally considered an unethical practice--see the current brouhaha at the UN--and patronage falls in the same boat, especially when it occurs in the public sector. This is troublesome because, ostensibly, we DO live in a democratic society, one of equal opportunity, where merit should outstrip inside connections and "I'll scratch your back if you scratch mine" behavior. If regular citizens like you or I are forced to function in a society in which your rights are guaranteed not by the sovereignty of the law but rather by whom you know, that's not a constitutional democracy.

Looking at the roster of Bush's second-round judicial nominees, there are definitely grounds for suspecting patronage. A number of them have served the Republican Party with either financial aid or services, and the question of whether improper 'payback' is being given them in the form of career advancement and the guarantee of lifetime employment must at least be asked. I am not suggesting that this info alone constitutes final damning proof--it would have to be cross-referenced with other data, concerning positive professional qualifications (e.g. rate of reversal by higher courts, compared to the national average and to other judges who sit on the circuit courts, i.e. who were successfully confirmed).

William Myers: He has never been a judge. He is a lawyer who has never even participated in a jury trial. The only opinions he issued as Solicitor of the Interior (a political appointment by W) were in favor of transferring land from the public to ranching and mining--two industries for which he used to be a lobbyist.

David McKeague: From 1985 to 1992, he was a member of and general counsel to the State Central Committee of the Michigan Republican Party. His further state-level partisan activity includes membership or leadership in:
--Ingham County Republican Committee (1979-1989)
--Sixth District Republican Committee (1981-1987)
--In 1988, he worked on Bush the Elder's campaign, including fending off legal challenges by primary competitors Pat Robertson and Jack Kemp
--Michigan Republican State Committee (1985-Present)
--Sixth District Chairman for the Reagan-Bush Victory 1984 Committee
--State Co-Chairman for the Bush-Quayle Victory 1988 Committee
--the National Steeering Committee for Lawyers for Bush
--Member of the Engler Exploratory Committee and Chairman of Lawyers for Engler (former governor of MI)
--Sixth District Chairman for the Jim Dunn for Congress Committee in 1986.

According to the Alliance for Justice (see page 2, and fn 5), McKeague's 1992 appointment to the federal bench by out-going Pres. George HW Bush was considered by some to be a parting gift.

McKeague himself has donated to the Michigan Republican State Cmte - $1000 (1990), and his wife Nancy, who is also a public figure, has contributed to George W. Bush - $1000 (1999)

William Haynes: In his Senate Questionnaire under the "conflict of interest" section, Haynes write that in 2000, "I volunteered to make phone calls on behalf of now President Bush." Since 2001 he has served as General Counsel at the Department of Defense, the Pentagon's top lawyer. He has contributed a significant amount of money to George W. Bush - $1500 (2000-2003).

Thomas Griffith: He was Senate Legal Counsel from 1995 to 1999, including during the Whitewater II investigation. More importantly, he has personal connections with former Senate Judiciary Committee Chairman Orrin Hatch (R-UT). According to The Hill, "Some conservatives have focused their criticism on what they allege is Hatch’s favoritism toward Thomas Griffith, a longtime acquaintance and fellow Utah Mormon whom President Bush has nominated to the U.S. Court of Appeals for the District of Columbia. " Those critics included Richard Lessner, the executive director of the American Conservative Union (ACU) and Kay Daly, head of Coalition for a Fair Judiciary.

Brett Kavanaugh: From 1994-1997, he was Associate Counsel under Kenneth Starr during the Whitewater investigation; he then went on to become a partner in Starr's private firm, Kirkland and Ellis until 2001. From 2001 to the present, he has served George W Bush in the Office of the Counsel President. In 2000, he served as the Lawyers for Bush Cheney Regional Coordinator for Pennsylvania, Maryland, Delaware, and the District of Columbia. He traveled to Daland, Florida in November 2000 to "participate in legal activities related to the recount." He served recently as an attorney in the Office of the White House Counsel. He has contributed substantial amounts of money to a number of Republican campaigns, including to the Republican National Committee- $500 (2000), George W Bush - $1000 (1999) and former Senate Judiciary Chairman Orrin G Hatch (R-UT) - $1000 (1999) .

Terence Boyle: An active Republican booster at the federal, state, and local level, with respect to both eletion campaigns and party conventions. In 1973, he served as Legislative Assistant to Sen. Jesse Helms (R-NC). In 1976 and 1980 he was an alternate delegate to the Republican National Convention. From 1977-1984, he was the elected chairman to the Chowan County North Carolina, Republican Party. Boyle was previously nominated to the Fourth Circuit by Bush the Elder.

Now, should any nominee to the federal bench have never, ever participated in American politics? Of course not. But there are degrees of connection that should be considered when seeking out an arbitrator, as opposed to a legislator. And given the number of lawyers and judges in the United States, I find myself continually asking, "Why THESE people?"

Abortion, Politics, and the Law

I expressed my hope the other day that pro-choice Democrats -- Senators, lobbyists, activists -- take a broader view on any potential Supreme Court nominee than the abortion debate suggests they would. Already press releases are being disseminated and new task forces are being formed by pro-life groups for the nomination. This is not to say that pro-life groups will defeat pro-choice groups; rather, if this battle continues, everyone will lose. It is especially in the interests of progressives with wide-ranging concerns -- secular, evangelical, Catholic -- not to let the question of reproductive rights prevent them from making genuine progress on other fronts of equal or greater moral urgency.

In fact, it seems that there is a public agreement on most issues that the Democratic normally champions over and against the priorities of the Bush administration and the Republican Congressional Leadership. (I put it this way because the Republican party is fractured between at least two camps, and it would be unfair to say that the people now leading the party represent the Republican viewpoint as a whole. Look under "Responsibility, Fiscal" for a case in point.) A strongly religious Democrat friend of mine just wrote me this email, which I think is spot-on:
The polling data I've seen suggest that there's a broad consensus on environmental protection, corporate accountability, and civil rights except for affirmative action. The consensus includes gay rights -- except marriage; there the national consensus is against. That gives a lot of common ground, from which many of the Bush nominees are excluded. Just as aspects of fundamentalism scare me, so does secularism scare evangelicals. There are some "religious Republicans" we can't welcome: the ones who want to ban Darwin & demonize gays -- the ones Bill Frist is now courting for 2008. But look at the national reaction to Frist's sucking up to the religious right in the Schiavo case. Visibly including people motivated by religion (not just Republicans) can go a long way to easing the anxieties of folks with whom you and I would agree on most issues that come before SCOTUS (see first sentence). And anyone who genuinely wants to build some degree of consensus -- and thus keep off the bench the worst kind of Bush appointees -- has to accept that the Republicans have won most of the elections for the last 20 years and look likely to keep winning. [slight changes made; point preserved in its entirety]
The fact that the Republicans have won more elections doesn't translate at all into the fact that right-wing policy positions actually enact the desires of their constituencies much less their moral instincts. But, on the whole, I think the email is right and reasonable. Factionalism isn't just a problem on the right, and the left-wing extremists have just as hard a time sympathizing with real moral concerns that they don't happen to share. The solution to the problem is as simple as the problem may be, nevertheless, intractable. Recognize (a) that we live in an ethically pluralistic society and (b) that some issues, like abortion, have to be decided in ways that, no matter what, will make a large section of that society unhappy. If you are on the losing side, accept it, and keep firmly in view that our best good depends on maintaining a system that can fairly balance these disagreements, now and in the future.

Having said that, however, it is important that pro-life constituencies, who are advocating for a Justice, also make broader judicial virtues a priority before rigid ideological stances. This is the only proper 'litmus test.' American Life League President, Judy Brown, fails the test when she says,
"Abortion is not 'settled law'; it is the unconscionable taking of an innocent human person's life. We're not talking about nuances and intricacies of law here. We're talking about flesh and blood -- and murder. Any nominee, or potential nominee, who holds such a 'settled law' position is inherently unfit to serve."
The law is the way democracies enforce moral necessities. I am uneasy with the assumption -- not that there are distinct and even higher sources of moral judgments than the law; that I think myself -- but that the law is an insignificant consideration. People (a) find higher moral sources in different places (Koran, New Testament, Old Testament, as well as non-religious, like family/community moral traditions or ethical philosophy) and (b), even when they look to the same source, their moral conclusions can be radically different (James Dobson [mean, spiteful], Jim Wallis [kind, generous]). This is not only inevitable; in my book, it's wonderful. I wouldn't want to live in a world where this didn't happen. But, as a society, we need to find a way to balance these different sources and different interpretations, so that we can go along together. That's what the law does. It is written by people popularly elected to make it; it is interpreted by people either elected or selected by those who have been elected. The writers are closer to the electorate; the interpreters are more distant, because the winning side in an election only represents slightly more than half the people, and the interpreters must be responsible to the whole people. That is also why the Constitution is so difficult to amend. It needs a super-super majority to be changed -- 2/3 of both houses of the US Congress and then 3/4 of the state legislatures. The final say must be that of the whole people.

So let's return to the question of abortion and the law. This is something I wrote on an old blog, in a post about abortion:
We endorse killing all the time in our society, for the greater good of that society. War and the death penalty are the most obvious examples. But there are innumerable others: the refusal to regulate certain sectors of industry or to amend policies on social problems lead to many deaths – from traffic accidents, from pollution, from drug-related killings, etc. I can’t give numbers, but I am certain that these deaths occur in much greater numbers than abortions. The point is not that we should regulate the industries in question more (though perhaps we should); it is that we make choices all the time to balance the preservation of life against other social goods. Indeed, these choices are inescapable. One may oppose a certain war, but very few oppose the principle that the state must, at times, send its youth to die to defend its (often, very abstract) interests. None of these instances raises exactly the same questions as abortion, of course. The death penalty is used against people who have committed great wrongs (excepting the several documented cases of wrongful conviction), while the potential/unborn child is innocent of wrongdoing. The soldier makes the choice to enlist (although the socio-economic profile of the US army demonstrates that his choice is determined in large part by conditions over which he has no choice), while the potential/unborn child has no agency. But neither do any of these instances raise the same questions, exactly, as any other one of them. We make choices about death all the time, and my point is precisely that they are always very, very complicated ones.
What I didn't write then, but which is true, is that we make these choices through the writing and interpretation of laws. Some choices are good, some choices are bad; some necessary, others tragically unnecessary. But the law is the only way we have to make them, and the worst choice possible would be to stop using the law or to subordinate the law to narrower moral programs, to which only a faction of the American people subscribe. Right and left both can be guilty of this anti-democratic instinct. By all means, advocate for your positions. But don't presume that yours is the only possible course of action. We already have an excellent process for deciding what to do. You have a place in it, but you do not control it alone.

Monday, June 20, 2005

Experience a Must

I would like to take some time to discuss William Myers, the nominee for the Ninth Circuit Court of Appeals. When I think of judges that are being appointed to life long positions, I think of experience. Recently appointed Janice Rogers Brown had experience as a California Supreme Court Associate Justice, Priscilla Owen was on the Supreme Court of Texas, and William Pryor had at least filled an openng by recess appointment before being appointed officially.

William Pryor has no experience as a judge. He has worked as US Department of the Interior Solicitor under the current administration and has worked as a lobbyist for a livestock trade association, but he has never worked as a judge.

The senate should not allow appointments to go through for inexperienced nominees.

The Damage the Media does to the Judiciary

The good stuff that came out today or yesterday in the last post. Elisabeth Bumiller, on the other hand, published a useless article in the NYT about the upcoming partisan battle for the court seat. Its substance consists merely in stating over and over again how ready each side is to go to war with the other -- how much money will be spent, what war rooms have been prepared, what preparation the administration will give its nominee. I'd like to point out that this is the only discussion in today's Times about the Supreme Court. (Contrast this to the two substantial articles about Supreme Court decisions the Post put on its website.) The LA Times published a similar article, which isn't much help either, but at least managed to provide some historical and political context for how political debate is changing with changing media technology and political tactics.

These pieces are worse than useless, however. This is the sort of article -- more and more common -- that treats partisanship per se as news. What does the LA Times think is the real excitement?
The vacancy could spark a political drama the equivalent of an extended championship bout.
So what? First, this focus deprives us of the chance to learn about important aspects of the process -- who are the nominees? what can we predict from them? Even: what are the reasons Republicans and Democrats are likely to oppose each other so fiercely? what is the political and cultural context for these reasons? Is this really the whole picture (the fact of the Gang of 14 suggests not)? Second, and yet more damaging, it inures us to partisan rancor. It creates the idea not only that such ill-behavior is normal, but even that it -- as news, as the way things are done -- is admirable. Readers of the newspapers are encouraged to think that their best and only choice is to pick sides; and that picking one side entails wholesale dismissal and flat-out destruction of the other side. Not nice, not true, not necessary. Not responsible.

More SCOTUS speculation

The QuandO Blog has some comments on the WaPo article I discussed Saturday. While McQ appears not necessarily to endorse this position, s/he generally concentrates on abortion as the important issue for Democrats in evaluating a candidate's fitness. I hope the Democrats don't apply a litmus-test philosophy in their evaluations, especially if it is abortion. There needs to be a post about this. Give me time.

Tom Goldstein discusses the same article. Read his thoughts. He's a very smart person. Anyone interested in the Supreme Court should read regularly the SCOTUS blog and its sister blog on Supreme Court nominations.

John McCain discussed the filibuster compromise and the likely upcoming Supreme Court opening on Meet the Press yesterday -- it's about halfway down the transcript.

Boyle, Pryor, Toil, and Trouble/Fire Burn and Cauldron Bubble: Civil Rights on the Bench

One of the gentlemen President Bush may nominate for the Supreme Court is James Harvie Wilkinson III. Many consider him to a judicial activist, "using the courts to rewrite laws to his liking rather than simply interpreting them." Wilkinson defended his judicial temperment in addressing the Duke Law school last month. He advocated for some judicial activism by citing the "judicial intervention" of Brown v. Board of Education, which famously outlawed racial segregation in public schools.

This tactic echoes the rhetoric of a number of right-wing statements on the judiciary; the similarities indicate that the rhetoric is centrally coordinated by Republican strategists. For example, in the their fight against the filibuster, many Republican senators continuously employed the talking point that the filibuster had been used to obstruct civil rights legislation. Yes, it had been, thanks to Strom Thurmond, who remained a prominent Republican Senator up until three and a half years ago. (Strom's hatred of African Americans gave him superhuman strength and endurance: he set the record for filibustering by one person, going a whole twenty-four hours. Talk about the power of the Dark Side of the Force. "Feel your anger, Luke.") That's exactly what's so despicable about this argument. The rhetoric attacks procedural principles -- strict interpretation of the law, the mechanism of the filibuster -- by arguing that they do substantive harm. But the party that is attacking the procedures is the very party that caused the harm in the first place!

So let's look at the judicial records of some of the judges nominated by the President and pushed by the Republican leadership in the Senate. Are these politicians sincere in their concern for civil rights?

Terence Boyle was just sent out of committee to the Senate floor for confirmation to the 4th Circuit Court of Appeals. Keep in mind that the rulings of this particular court have a profound influence on the African-American community. The vote to send him out of committee was entirely on party lines. The Republicans, party of Lincoln, defender of civil rights, all want him as a federal judge.

So what do others say about Judge Boyle? Well, his nomination has been decried by black congressional leaders, civil rights groups, police, and advocates for the disabled.
Bobby C. Riddle, president of the Professional Fire Fighters & Paramedics of North Carolina, wrote:
“Judge Boyle has not shown the sensitivity and respect for the fundamental rights guaranteed by our Constitution, such as the right to free speech, the right to free association, and the right to due process, that are the primary bulwark protecting public employees here in North Carolina from arbitrary, unfair and retaliatory actions.”
Marc H. Morial, the President of the National Urban League, a group that works to establish rights and opportunity for black Americans, wrote:
"Judge Boyle's decisions during his years on the district court display an astonishing disregard for civil and individual rights and lack of respect for judicial precedent. His repeated failure to follow the law and his history of curtailing civil rights protections show that he is significantly out of step with mainstream American jurisprudence and makes him the wrong nominee at the wrong time for a lifetime appointment to the Fourth Circuit Court of Appeals."
Indeed, Boyle has been reversed more often than any other federal judge nominated by the President. Specifically, he has been repeatedly reversed on civil rights rulings in the 4th Circuit, which is regarded by many as the most conservative federal appeals court in the country. In other words, his position is beyond extreme in its disregard for civil rights.

So, no, Judge Boyle is not a friend of civil rights for the black community, no matter what the Right-Wing Center for Talking Points would have you believe. What about the civil rights of other groups? Margaret Moore, director of the National Center for Women & Policing, asked senators to reject Boyle for refusing to address gender discrimination. Michael Adams, a gay rights advocate, said that, when ruling on civil rights, Boyle has undermined the fairness and integrity of judicial proceedings.
“The bottom line is that Terrence Boyle has a history of unremitting hostility to the Americans with Disabilities Act, which is the most import federal law that protects people with HIV. When Boyle rules, as he has done, that an employer’s irrational fears about a disability is a sufficient defense, we can imagine what this would mean for people with HIV.”
Judge Boyle has consistently demonstrated his hostility to the civil rights of African-Americans, women, and homosexuals.

William Pryor, Jr. was just confirmed to the 11th Circuit Court of Appeals. His attitude to homosexuals makes Boyle look like a model of compassion and tolerance. When he was the Attorney General for Alabama, Pryor was the only Attorney General outside of Texas to file an amicus brief endorsing Texas' sodomy statute. In this brief, he advocated punitively singling out same-sex relations, despite the fact that the statutes in his own state regarded heterosexual and homosexual relations as equal under law. He explained his participation with one of the most hateful sentences I have read in a long time. He equated homosexual love with “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia.” Necrophilia? Bestiality? A gay person is neither a corpse nor an animal. Anyone who thinks so has no business distributing justice; justice is impossible with such a cruel prejudice. But there he is, on the bench for life.

Tell me honestly, now, do you believe Judge Wilkinson when he equates himself with the heroes of the civil rights movement?

Sunday, June 19, 2005

Bill Frist, young man and old

David Brooks give an interesting perspective on the character of Bill Frist and the way it has changed since he became a Senator. It doesn't justify his decision to threaten the nuclear option in order to put unqualified and extreme judges on the bench. In fact, it bolsters what everyone knows -- that Senator Frist is using the U.S. judiciary for personal political gain. He is hoping to make himself a hero to the voting bloc of extreme social conservatives often misrepresented as evangelicals. But it does put the Senator's political calculus in a larger context that allows us to feel sympathy for his having become something he likely never wanted to be.

God bless America, land that I love

In the middle of the desert, there is a flower blooming. I have had a lot to complain about, watching the lifeless Washington landscape, seared by partisan conflict. I may sound grumpy but, you know what?, I'm right. You need to be grumpy when your elected officials have abdicated their responsibility to the common good. But there is also a time for joy and due praise. Senators Bob Nelson and Mel Martinez of Florida, a Democrat and Republican, are reestablishing a joint judicial nominating commission to review federal judiciary appointments coming from Florida. They will find candidates who can appeal to both of them, in terms of ideology and professional qualification. It is an excellent answer to the sort of question asked of them by Circuit Judge Terry Lewis of Tallahassee:
why a party would select judges who appear to have extremist views when those people would probably take extremist positions on the bench instead of assuring an independent judiciary.
The spirit of compromise and consensus, embodied in this decision, echoes the procedure laid down by the Memorandum of Understanding that the President must consult the Senate in the act of choosing his judicial nominees. This is the full and proper affirmation of the advise-and-consent clause of the US Constitution. Americans should urge their Senators to adopt a similar democratic and moderate practice in selecting nominees from their state. I hope the White House is paying attention too.

Bob Graham, the former Senator from Florida, a man I admire, gave this the proper emphasis. He was asked to answer a question about the fact that Senator Martinez's office called the Terry Schiavo tragedy 'a great political issue.' He refused and said that he preferred to concentrate on the two Florida senators working together.
"There are some important issues that are coming and one of them is the question of how do we go about selecting our federal judges in Florida. Really going back to the time when Lawton Chiles was relatively new in the Senate, our two senators have seen this as a joint responsibility. We've done this when there was a Republican president and a Democratic president and when there was a Republican Senate and a Democratic Senate. That's been the tradition that's served the state well, and I am going to try to maintain a position to allow me to be constructive in encouraging that."
The high road gets you where you want to go a lot faster than the low.

The facts are the first casualty; the world is the next

I wrote a post a little bit ago, in which I expressed concern about the White House's decision-making.
I support many things President Bush has said and I believe that he is a good man at the bottom; I think I would like him, were we to meet. But there can be no question that his administration has a record of putting personal ideology ahead of important facts about the public good. This may explain why he sees no problem with judges who do the same.
One of the reasons I had to doubt the President's commitment to serious evaluation of facts over his political agenda was his having hired an oil-industry lobbyist to rewrite government reports on the science of global warming. Once the New York Times broke the story I linked to, the administration was forced to let the lobbyist go. But today the Guardian reveals that the administration's commitment to ideology over truth on the science of global warming is deep and pervasive. The President's men are using the same tactics to undermine Britain's efforts to slow global warming. Is this the scientific version of the Bush doctrine of pre-emption -- take anyone out, who might acknowledge the reality of climate change, before they get a chance to do so? There is a fundamental procedural connection between the White House's science policy and its foreign policy, as suggested by the Downing St. memo: secretly fixing the evidence in order to present its desires as truth.

The biggest problem for me, strangely enough, is not that the Bush administration is encouraging the single greatest threat to worldwide human happiness and prosperity -- i.e., climate change -- nor is it that he might have made the deliberate decision to send young Americans to pointless slaughter in Iraq. I feel callous just writing this -- these are horrible things to have done, beyond my capacity to describe -- but my deepest unhappiness is the way the President is compromising our democracy. Democracy needs decision-making to be public; it needs open debate on important questions. Our system of governance was designed to work through the cooperation of its distinct parts, no one office overriding the others. Democracies can be fickle in the short term, but ultimately there is wisdom in their consensus. Democracies will make the right decision, given time to balance the different views of their constituent parts. Open discussion, honest debate, and uncompromised decision-making must come first. This is a more important consideration than the needless American deaths in Iraq precisely because, if we had been allowed to make this decision as a democracy, we would not have sent soldiers to the desert in the first place. Tocqueville famously wrote that democracies are slow to go to war, because of the debate required, but once committed to war, they are dogged in their determination to see it through. Right now, only 37% of Americans support the Iraq war. If the President had had the patience and wisdom to present the truthful case for the war, either we would not have gone at all, or we would have gone (a) with a plan more likely to succeed and (b) with the moral courage and conviction to see that plan through to its fulfillment. But the President did not trust his democracy and now the democracy does not trust him.