Saturday, July 02, 2005

More de la conversation, le good and le bad

About the court. Some of it rather one-sided, however. Alas. The moral morlocks of our dystopia are starting to come out from underneath their moss. The crazies are coming out of the closet (no, not that closet; certainly not; perish the thought -- and then the homosexual, likely).

I reserve this flippant disapprobation for the guests at our common political party, who mistreat the host and spill drinks on the carpet. I have great respect, as I hope to have demonstrated, for the moral and ideological commitments of serious and thoughtful people, whether or not their commitments or the conclusions derived therefrom chime with my own. I have written as much about both gay marriage, abortion, and (I think) affirmative action. But there is a minimum standard for my respect. I expect to be treated with respect, as well, and I expect my fellow citizens to be shown the same courtesy. It is a procedural question, this respect, and a democracy needs it to work; it is the invitation you need to have to attend the party.

Let's look at some of the crashers, then.

This guy would definitely make your other guests uneasy. Too comfortable by far with the rhetoric of warfare. It comes too trippingly to his tongue. (Light of my life, fire of my loins. My sin, my soul. The tip of the tongue taking a trip of three steps down the palate to tap, at three, on the teeth. Screw. The. Court. [The other problem is that it is just too goshdurn easy to bait these fellows. Didn't everyone who passed through junior high school learn not to open yourself to being teased so readily?]) Of course, he does us the inadvertent service of speaking honestly about the consequences of the nuclear option. Half the Senate lying in smoldering ruins, their children weeping, their women sold into slavery. Senator Frist as not only Emperor Palpatine, but also Agamemnon.

Another thing about serious respectful conversation. One is obliged to consider sincerely the motives of those who disagree. Janice Rogers Brown should be nominated to replace O'Connor, argue some. Fair enough, though I disagree and want the Senate to have a conversation about that. This, however, is below-the-belt: her nomination to the DC circuit court was contentious only "because Democrats blocked her and other conservative nominees because they did not think the way people in their class (women, race, etc.) are supposed to think." Is that really the case? Here are some good reasons, mind-control notwithstanding, for worrying about a lifetime appointment for Brown to the highest court in the land. I hope you find the rhetoric of respectful and reasonable disagreement refreshing. Contrast it, if you will, with this continued dismissiveness:
To know why Judge Brown should be elevated to the Supreme Court one need only look to those groups that opposed her confirmation to the D.C. Court of Appeals: the AFL-CIO (labor unions hate people who believe people should work for a living and not have two hour lunches), Americans for Democratic Action, Americans United for Separation of Church and State (have to remove all the crosses on all the seals and before long in military cemeteries), the Congressional Black Caucus (they only like liberal blacks), Endangered Species Coalition (did Judge Brown want any species to become endangered? I don’t remember), the Feminist Majority, NAACP (see Congressional Black Caucus), National Urban League (see NAACP), Planned Parenthood Federation of America (yes to killing babies, no to black women on courts), Union for Reform Judaism (why confirm a black when you can eat all the pork you want?), and Amigos Bravos (any group that calls themselves friends of rivers should be ruled out as a serious opponents to a judicial nominee) – just to name a few.
Okay, some of that is pretty funny stuff; but, still, wrongheaded in its approach to conversation. And then: "Knowing who opposes a person is likely to give an idea about the reasons they do." That is actually backwards from what's correct. Fair evaluation of reasons comes from, well, evaluation of the reasons, not a pre-conceived notion of the person offering them. The writer here suggests we use prejudice as a tactic for understanding our interlocutors. That is a novel idea, certainly, but it doesn't seem to have worked very well in the past. The real shame is that, when the writer discusses the virtues of Janice Rogers Brown, he does so reasonably and responsibly. You might disagree but, when you read his evaluation of her, you think, well, this is a person I can talk to! It is when he talks about those who disagrees with that he becomes unreasonable. You want to talk -- you do -- until you realize that he is not interested in talking to you, you river-loving reprobate with your mud-bank muskrat motives.

Who do we want to invite to the party? There are some attractive guests out there, as well. Seem like they'd be good pictionary players.

mine this press release from the (liberal-seeming) Congressional Hispanic Council and this from the (conservative-seeming) Project 21. It may very well be that you disagree with either of their standards for evaluating a potential justice. It may very well be that you mistrust their likely application of these standards. But do you also see how the way they expressed their views allows those who disagree with them to engage them, and even (theoretically, not necessarily actually) convince them that their views are wrong? Even if there is no convincing, if people talk to one another in the manner used by the CHCouncil or Project 21, there will be a chance to try again at the next disagreement. This also is a great piece, with methodological detail and historical perspective. I disagree with its conception of originalism, its thoughts on the place of originalism in constitutional interpretation, and the conclusions it draws from these starting points. But my reaction? I am excited to engage the argument -- there's some real substance to it -- and I plan to in the next couple of days. It makes me want to listen, to learn. I would buy the writer a beer in a second, if he had some time to chat. There can be no such engagement with the stridency shown by the pieces in the above paragraphs.

Friday, July 01, 2005

True Colors Showing with O'Connor Retirement

While President Bush is saying he wants a dignified approach in the Senate to his upcoming judicial appointment, his closest allies are celebrating the retirement of a dignified Supreme Court Justice. Justice O'Connor, it seems, offended the conservative base by serving as a voice of reason. Notch this one up to the continual campaign to politicize everything. The role for swing votes on the Supreme Court is apparently gone. Non-wingers need not apply.

Replacing O'Connor

People are speculating that the President will announce his nominee to fill O'Connor's seat on the Supreme Court within 2-3 days. Political calculus cuts both ways. On the one hand, a quick announcement would give the President and his allies the jump on the contest to frame the nominee (you can be sure that the White House will let at least some political action groups know who the candidate is before publicly announcing the name, and that none of those PACs will be progressive). On the other hand, announcing it too soon could give his political opponents the chance to really fill up the airwaves before any actual nomination hearing, making it more difficult for the President to push through a controversial nomination.

So. Will the nomination be controversial? The big difference between the Rehnquist retirement and the O'Connor retirement is that Rehnquist is a conservative and O'Connor is a moderate. In replacing Rehnquist with an extremist nominee, the President could do some damage, but he wouldn't really be changing the balance of the Court. O'Connor, however, has been the very definition of the swing vote. Replacing her with a right-wing extremist would substantially change the way the Court is likely to decide on several issues. (see Marty Lederman's list of precedents that would be jeopardized by such an appointment). Janice Rogers Brown is one such appalling possibility. Tom Goldstein thinks the President will go nuclear: nominate and force through as right-wing a nominee as possible.

There has been some substantial talk about Gonzales as a replacement, specifically, for O'Connor. He is viewed as a general moderate, likely to play a similar role on the Court to that which O'Connor has played. Here is the Supreme Court Nomination Blog's overview of Gonzales. We have also published a couple of posts on Gonzales as a nominee. The view from this blog is generally favorable, though in the first of the posts mentioned, I did express some real reservations about Gonzales' record on Executive privilege and civil rights in the context of the war on terror.

As always, SCOTUSblog and its talented sister, the Supreme Court Nomination blog are where you should go first to look for links and analysis.

Sandra Day O'Connor will resign

Read the New York Times article here.

Our fight begins now, ladies and gentlemen. I'm going to begin preparing posts on each of the potential nominees from the possible shortlist.

I recommend that my fellow bloggers here do the same. Leave your thoughts on who you think the nominee should be and why.

I just hope and pray that the nominee is someone like Judge O'Connor--a moderate, pragmatic swing-voter. Somehow I have a bad feeling it will be a very conservative judge though.

Expect an announcement of a new nominee by next Tuesday or Wednesday.

Anthony Kennedy, "The Most Dangerous Man in America?" WWOWHS (What would Oliver Wendell Holmes Say"

The impending Supreme Court nomination continues to be a partisan tinderbox. This past week, the Times offered an article here outlining many a conservative Republican’s qualms, if not outright enmity toward Supreme Court Justice Anthony Kennedy and the prospect of appointing another “Kennedyesque” jurist. I thought I would see if Oliver Wendell Holmes through his writing may have weighed in on the issue of Justice Kennedy, partisan politics in jurisprudence, democracy, and the Constitution. And he has, but first to the details.

The replacement nominee for Robert Bork, Kennedy was presumed by many on the right during his early years on the bench as an ideal replacement. However, when deciding controversial cases in the early nineties he disentangled his personal and political views from his jurisprudence, much to the dismay of many religious conservatives. In the words of Focus on the Family Founder, James Dobson, Kennedy is the “most here dangerous man in America,” Dobson’s remarks relatively innocuous in comparison to the disastrous calls for the impeachment of judges as well as the vile remark here made by a trustee on the Conservative here Caucus Foundation while attending a conference in D.C. when he parroted a thinly veiled deathhere threat, first uttered by Joseph Stalin, toward Justice Kennedy.

However it seems that the reason why many partisans on the right are savaging him, is precisely the reason why a jurist cut out from a similar fabric should be appointed for the looming vacancy. And I assert that from a purely non-partisan angle, shorn of any disagreement for their views. I am sympathetic to the importance so many bestow upon religion; but I robustly disagree because democratic aims should and must trump any partisan populist aims, as well as the need for limitation on role of religious influences in our statehood, which as my friend Peter, highlighted here is under a flagrant assault.

Oliver Wendell Holmes, the iconic Supreme Court jurist and eloquent writer, mused about the Constitution and our democracy, and would be appalled at the attempts to politicize the bench with nominees beyond the pale of consensus politics. He would laud Kennedy’s integrity and prudence rather than demonize and threaten. “But a constitution is not intended to embody a particular theory,” Holmes wrote, “It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question of whether statutes embodying them conflict with the Constitution of the United States.”*

In another opinion, Holmes was even more grandiloquent in writing about the essential nature of compromise in fostering democracy and the sobriety with which judges must approach the bench. “Considerable latitude must be allowed for differences of view as well as for possible peculiar conditions which this court can know but imperfectly, if at all. Otherwise a constitution, instead of embodying only relatively fundamental rules of rights, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.”* For in a democracy, particularly today, everywhere always and by all, does not exist.

Holmes would abhor the baldly partisan attacks on not only the Supreme Court nomination but also would be adamantly opposed to any fringe jurist that could not be appointed by a consensus. He would applaud Justice Kennedy. And most importantly if Holmes were alive today, he would urge President Bush to appoint a consensual conservative to the bench, an appointment agreed upon by both sides of the aisle. Of course Holmes has since passed, but he lives on through his writing. Here’s to hoping that Bush listens.

*Excerpts taken from Law and Politics : Occassional Papers of Felix Frankfurter, 1913-1938, ed. Archibald MacLeish and E.F.Prichard Jr. (New York: Harcourt, Brace, and Co, 1939), 72, 75.

Thursday, June 30, 2005

Gay marriage passing the ultimate test

The Canadian House of Commons' vote to allow gay marriage deserves praise. Canada is a different country from the United States, of course, and in such a way that made this decision easy for them. I have argued before that the United States should withhold legal decisions on gay marriage until the cultural conflict has been better resolved. That it will be is suggested by what I have come to think of as the "Will and Grace syndrome." Homosexuality is rapidly being normalized. The most vocal opponents of gay marriage are often members of conservative religious communities, but even the children of such families, now reaching adulthood, find the prejudice troubling. According to the Economist,
The Catholic Church, which is still recovering from its paedophile scandal, is much less trenchant on gay marriage than it is about abortion. So are young evangelicals, who dislike any appearance of intolerance. The religious right is targeting them through groups like Teen Mania Ministries, but, as Mr Eskridge points out, even the students at his own Christian university “have grown up watching ‘The Simpsons'.”
Indeed, on this question, the Canadian public has undergone "a relatively swift turnabout of opinion over a period of several years." Readers should make sure to look at the very smart essay by Kenjo Yoshino of Yale Law School -- his observations about the 'banal register' speak very much to the Will and Grace Syndrome.

In this spirit, let me suggest that the most important stride forward for gays who want to be able to marry is the demonstration that gay marriage can be just as awfully tacky as straight marriage:
American couples have been wed [in Canada] since lower courts began to legalize same-sex marriages in some provinces in 2003. The marriage in Ottawa this month of a gay American couple from the popular television show "Amazing Race" is the latest high-profile example.
Ah, publicity; ah, Entertainment Weekly. Tom Cruise and Katie Holmes have nothing on this. All we need now is Elton John ranting at Matt Lauer,
No, you see. Here's the problem. You don't know the history of the legal grounds for gay marriage. I do. And Rehnquist doesn't understand the history of these legal grounds. He-- He doesn't understand in the same way that you don't understand it, Matt. Oh, Matt, Matt, Matt, if only you had my wisdom and professional expertise. I've done the research, gosh darn it, I've done the research. I'm passionate about learning. I'm passionate about life, Matt.
God bless America and its institutions -- marriage and reality TV, both -- and God bless its conviction that there is no such thing as bad publicity. May the pursuit of one's 15 minutes always be equal opportunity.*

On a related subject, you know -- do you not -- the intent behind the erection of the 1o Commandments monument in front of the Texas state capital, which SCOTUS just found to be constitutional? It was one of several monuments donated to cities and towns across the country in the 50s in order to promote Cecil DeMille's epic movie "The Ten Commandments." This promotion was not only constitutional, it speaks from the very heart of our great country. Surely no claim can be more persuasive than one based on "The Greatest Event in Motion Picture History" (tagline used then).

(*I have been trying to be funny the last couple of days. Must be coming down with something [Yes, a healthy skepticism for the future of the American judiciary -- ed.]. Just to draw a clear line between humor and reality: I know nothing of the Amazing Relationship and there is no reason the gay couple ought not get married -- unlike the case of Tom and Katie. Nor, certainly, am I suggesting that the arguments in favor of gay marriage have the merits of Dr. Cruise's argument to replace psychiatry with scientology. I am teasing the Amazing Relationship more for appearing on the TV show in the first place. Once you do that, pretty much everything you do afterwards, exactly to the extent that it is publicized, can't help but to be tacky.)

Wednesday, June 29, 2005

The Shrinking Senate

TJ brings up a serious problem with the current confirmation process, that is actually most apparent in the case of John Bolton. The White House, in denying bi-partisan requests for documents related to the nominee, has effectively sent the message that it believes the Senate subordinate to the Executive. This was obscured in the recent filibuster fight by the partisanship of that battle, but was clearly present in the rhetoric of a "fair up or down vote," to which the President was supposedly entitled.

If you'll indulge a little bit of political analysis, I suspect that this behavior will lose its effectiveness as the 2006 elections draw near. The President's low approval ratings as well as his lame duck status should make it easier for Senators to assert their independence. Here's hoping, anyway!

The Question that Troubles by Its Absence

Two of Peter's recent posts, "Judicial Wedge Issues" and "Conversation, from a Different Perspective," touch on an issue which I have found to be under-analyzed in various media outlets: This is the question of party unity in voting for or against judicial nominees. Regardless of whether a given person is for or against a particular nominee, it is striking that no one I ask about this issue takes it as a given that the Republicans will vote one way, and the Democrats another. As a Pennsylvanian, this point is annoyingly close to home: the pacification of Arlen Specter concerning Senatorial independence from the White House demonstrates that party unity is not a given, but the issue is not brought into focus or attention nearly enough. In some ways the more troubling corollary is that it was taken for granted that Specter, had he persisted in asserting independence, would have lost his Senatorial seat. The astonishing aspect of this, of course, is that who holds a Senatorial seat is not supposed to depend upon party decisions handed down from above. It is now taken for granted by many that such is the case.

The question of an independent judiciary therefore immediately collides with the question of an independent legislature. But we have become so used to rhetoric of separation and contrast that people pay no attention to the topic; we have grown used to bloc taxa ("the Religious Right," for instance). We need to figure out why, because otherwise it is precisely the few issues which will continue to decide (or be perceived to decide) votes over judicial nominees, both in Congress and in public opinion. As was the case with Specter, history demonstrates that this state of affairs was the product of deliberate action; this only makes the issue more pressing and worthy of public attention.

Evidence that we all want a fair and balanced judiciary

Thanks to James Dobson, responding to the Supreme Court's decision in McCreary:
People in churches across America had better get busy and demand the right kind of appointments to this court. There is no bigger issue on the Christian agenda.
It would be funny, if it weren't so ... no, wait, it's plenty funny.

Innocence and Death, a Woody Allen absurdist film

The Washington Post cuts to the chase:
The court has never quite said it is unconstitutional to execute an innocent person.
Is it just me, or is this a red flag?

Tuesday, June 28, 2005

The last of McCreary (he says now)

This is my third post on McCreary. I would also like to state here for the record that I find quite weak the notion that the 10 Commandments can be displayed in a courthouse because of its important role in the development of American law. Many of the arguments that would allow such a display depend upon this assumption. (An important earlier decision, Lemon, declared that the government can evoke religion as long as it has a secular purpose in doing so.) Again, I could know my legal history much better, but I really don't think Moses' tablets had much at all to do with the foundation or development of American law. I think that the farthest possible reach into antiquity for such purposes is the Roman code, which I understand to have been the foundation for Western law in general. The 10 Commandments might have been used rhetorically in reflection upon American law; it might have served as a mythic reference, as a kind of a moral charter. But to make that important for the development of American law is precisely to elide the two fields of law and, say, ethics. Ethical thought can, with total legitimacy, be the product of religious traditions. But it is not law, and the relatively vast scope of ethics should caution us against trying to make it like law or law like it. The actual place of the 10 Commandments in American legal tradition depends on it having been filitered through a multitude of different thinkers, places, and times, until it was very much not the 10 Commandments, but rather, e.g., Locke's conception of natural law. Unless I am missing some big facts, any claim about the 10 Commandments being in any way historical precedent for American law reflects nothing more than a basic misunderstanding of how history works.

More on Scalia in McCreary

For you legal eagle blog readers out there, this is old news. Jack Balkin posted his unease with Scalia's dissent in McCreary County v. ACLU on Monday. I would like to emphasive one of Professor Balkin's arguments and question another. Balkin writes that, according to Scalia's explicit logic,
If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us.
In fact, I think that disregard is integral to persecution. It may not itself constitute persecution, but it lays the groundwork; it enables persecution. Punishment of a class of citizens depends on the mental maneuver that separates them from us. Once the separation is made, persecution becomes plausible and, in some cases, because of the maneuver, even desirable. It was my impression that the Justices were supposed to guard against exactly this kind of slip towards such a treacherous slope.

But I disagree with Professor Balkin when he writes, in response to Justice Scalia's argument,
Why can't government support flow only to monotheistic religions? Because that would discriminate among religions, or between religion and non religion? Why then can government engage in such discrimination in its public symbolism? Is it because money is more important than symbols, or because symbols are more important than money?
My understanding of the context makes perfect sense of Scalia's distinction between funding religious groups and putting up the 10 Commandments. The Justice does not articulate a justification per se for his distinction, but his argument allows us to assume that one exists. His point is precisely that constitutional tradition assumes such a distinction. According to tradition and practice, it is in fact unconstitutional to fund religious groups in the way that Balkin alludes to. It is not, apparently, unconstitutional to invoke a Christian god on all sorts of benches in the public square.
Though Justice Scalia's conclusions make me uneasy myself, and though I find some of his reasoning not only wrong but offensive, this is the one very important part of his claims that I don't quite know how to argue against. Justice Scalia notes the preponderance of Christian symbolism . He argues convincingly that the Establishment Clause gives us little guidance beyond vague prescription for religious freedom and that the clause is properly understood as having been defined in practice by various invocations by our government of the Christian diety:
Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto“IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.”
Now, I don't know my history well enough to know whether Scalia is prejudicing the facts in his favor. Other aspects of his dissent lead me to think that entirely possible. Indeed, Souter's opinion states that he has, even as it seems to accept his interpretive methodology.
But let's assume Scalia is in fact correct. What then?

I am hard pressed to find a hard distinction between putting up the 10 Commandments in a courthouse and having that court open each and every session with an evocation of "God." What allows the latter but forbids the former? Justice Souter references the principle of neutrality in his opinion:
the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.
It seems to me that the principle, evenly applied, would also forbid the instances of religious evocation that Justice Scalia uses to make his case. Neither Souter nor Justice O'Connor in her concurrence give reasons to make the distinction.

My instinctive response, therefore, takes me in two opposite directions. Either we eliminate all of the instances of governmental evocation (and, inevitably, therefore, endorsement) of Christianity or we allow the government to take any symbolic stand which it wishes.
I find the first much more palatable than the second, but neither is a good solution.

As in most difficult definitional questions, it is a matter of drawing a line. Scalia has his argument, but it can clearly be taken too far. The thing about Scalia's dissent that makes me uncomfortable is that he doesn't give any indication on where that line would be drawn. To take one example -- his irrelevant (and inaccurate*) claim that 98% of Americans worhip the through the same broad Judeo-Christian-Islamic religion tradition. So when do we reach a number too low to justify displaying the 10 Commandments in a court? Is it 90%? 70%? 51%? Clearly, our courts must draw the line somewhere, and Justice Scalia gives no indication of where even to sketch that line, in any of the several places where it needs drawing. One suspects that he is fatally uninterested in that question.

I think the court was right in drawing the line in such a way as to exclude the Kentucky courthouse display. But, if we had an entirely secular dollar bill, and some mint starting putting "In God We Trust" on it, I would also want the line to exclude that. In other words, I have no principle with which I can determine which non-neutral statement should be allowed and which shouldn't.

In sum, I share Justice Scalia's confusion about how much Christianity in public affairs is too much, but I do not agree with the conclusion he derives from that confusion.

*I have no idea where Justice Scalia gets this number. He doesn't tell us. I know for a fact, however, that well over 5% of Americans do not subscribe to any religious system, in either belief or practice. (I think the number is closer to 20% than 2.) Either Justice Scalia's numbers are flat wrong or he is assuming that a person's heritage -- what their ancestors might have believed or done -- makes them a follower in the faith of their ancestors, which assumption is flat wrong. In either case, the number can't do nearly the work that the Justice wants it to do.

Resignation anxiety

Despite rumors that Chief Justice William Rehnquist would retire at the end of the Supreme Court's session, that date has come and gone without his departure. Now that we have entered yet another eye of the judicial storm, a moment of reflection on the implications of the non-retirement, and also of the rumor that advertised the non-event.

Two reasons for anxiety about any resignation from the Supreme Court are clear.

First, the question of who would be nominated, with the Democratic apprehension that it would be a divisive figure similar to the last ten of Bush's judicial nominees who are trudging through yet another Senate hearing. The Supreme Court is somewhat precariously balanced as it is, but then again, since Rehnquist is no flaming liberal, if he were to be replaced by another conservative, no great change in that balance.

The second reason, in the event that the nominee is not merely conservative (a perfectly valid ideological position to occupy in the absolute sense, if not appealing to me in all of its policy implications) but appears to be a partisan hack, or some kind of political client of the faction of the Republican Party that is holding the reins of power, or a former lobbyist for private industry--concerns I have about a number of the "Filibustered 10"--then we might be going back into the ring for another 10 rounds over the fate of the judicial filibuster. Sens. Reid and Frist have basically promised as much: Reid, asserting that of course the filibuster is fair game as a parliamentary tool in the future, including with respect to judicial nominees; Frist declaring that the speciously-named "constitutional option" (aka the "nuclear option") is still on the table. In all likelihood, this would prove highly unpalatable to the general public, who did not look too favorably on the last filibuster fight.

Another concern is less about the politics outside the court than the workings of the Supreme Court itself. The Chief Justice is not just a ceremonial position; the office also carries administrative responsibilities, and Rehnquist, whatever his ideology, is considered highly competent and even-handed by his colleagues. While the fight in Congress and among special-interest groups revolves mostly around certain hot-button issues that might advance or return to the Supreme Court should its composition change, the ability of the justices to act in a collegial manner and produce decisions efficiently is crucial. So any vacancy caused by Rehnquist raises two questions: one, who would become the ninth justice, and two, who would rise to become Chief Justice? A much more complicated puzzle, indeed.

But lastly, what of these rumors of Rehnquist's imminent retirement? As the court recessed, they seem to have been false. The Financial Times had quoted Sen. Arlen Specter, Chairman of the Judiciary Committee, observing that Rehnquist looked to him "remarkably fit". I ran a quick Google search and found that the source, although officially anonymous, was described as "very close to the Bush administration" on the 6/21/05 post on . CBS News "Judiciary Rumor Mill" also seemed to be following that tip (although every time I try to load the link, my browser quits, so please check it yourselves!). It's clear why the Bush admin would seem a credible source, if the resignation would be submitted to the president. But what does it mean when the source, if indeed close to the admin, had been giving out patently false information? Was it to spur Rehnquist to resign? To create news that did not exist--but to what end?

Monday, June 27, 2005

Scalia's America

Needless to say, it is somewhat ridiculous for me to argue with the logic of a Supreme Court Justice. But, some might claim, these are ridiculous times: I can’t, for the life of me, make sense of some of Justice Scalia’s reasoning in his dissent (pdf) against the Court’s declaration that a Kentucky courthouse’s display of the 10 Commandments was unconstitutional. (I say this as someone who finds the majority ruling in Van Orden reasonable.)

When Scalia opines that “Those who wrote the Constitu­tion believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality,” he does not specify a certain kind of religion. [Clarification: this was part of his argument concerning the distinction b/n religion as religion and non-religion. It is more reasonable to say the government can endorse a worldview informed by the fact of religious faith. But he goes on to define that faith more narrowly, as monotheism.] Yet his opinion would elevate a particular religion, Christianity to the position of moral guide par excellence. He has no such argument pertaining to the social good, when he states that the government be allowed to endorse monotheism. His grounds, rather, are that a large proportion of the American population is monotheistic – 98%.

First, this is a specious argument for the case at hand. In contemporary society, precisely as a function of the cultural debate around religious monuments, erecting the 10 Commandments at a courthouse would be understood to be an endorsement of Christianity. We all know this; Justice Scalia’s willful blindness does not make it any less true. Moreover, the argument would remain specious even in a different political and cultural context. Muslims, as people of the book, accept the importance of Moses and the 10 Commandments, but it does not have the centrality for them that it does for Christians and Jews. Muslims also acknowledge Jesus as an important prophet. Does this mean that to erect a gigantic crucifixion scene in front of the Capital building would not indicate an official preference for Christianity over Islam?

Second, the religious convictions of the population will change. More or less people will practice religion. More or less people will worship the Christian God. Imagine that, in the next 100 years, as India and China grow more wealthy, increasing numbers of Indians and Chinese immigrate to the United States, even as the birth-rate for American Christians shrinks. Imagine that they are almost all Hindu or Buddhist. Both are entirely plausible suppositions. What of Justice Scalia’s 98% then? It seems to me that, the living constitution notwithstanding, Justices should interpret the 1st Amendment in a somewhat less empirical manner with a somewhat less ephemeral result.

Third is most important. Were the government to endorse this view, it would delegitimize other religions as well as secular moralities. Justice Scalia’s 98% tries to cover this but it fails. Given the failing, we are left with the brutal and naked fact of a government invalidating by implication the religious beliefs of millions of its citizens. To my mind, this would clearly violate the intention of the founders that people be free and unobstructed in their practice of the religion that speaks to their convictions. The founders intended the 1st Amendment to protect minority rights against the heavy convictions of the majority. The founders were, in fact, thinking of the minorities, who had come to the new world to escape religious persecution in Europe. Seen from this perspective, Justice Scalia's willingness to let a 98% majority rule over the 2% is not simply insufficient; it is egregiously offensive.

With respect to the third point, I find it troubling that Justice Scalia began his dissent with reference to 9/11. The reference was more or less gratuitous, but it was telling in that it is precisely the type of emotions stirred up by the terrorist attack that can, in unreflective times, lead to unjust oppression of minority populations. It is not inconceivable that Muslims qua Muslims could have become the target of government coercion, and with popular approval. The constitutional violations perpetrated at and by Guantánamo constitute precisely the sort of cruelty that follows on fear and anger. The prominence Justice Scalia assigns to 9/11 – popularly conceived as an attack from the Muslim world – in an opinion where he argues in favor of erecting symbols of Christianity in American courthouses suggests a fundamental insincerity in his use of his 98%.

Sunday, June 26, 2005

The shortlist offers in great detail the judicial histories of eight potential Supreme Court nominees to succeed the resigning (When? Maybe tomorrow or sometime this week?) Chief Justice William Rehnquist.

The 'Elite Eight', as some have begun to call those on the shortlist, are quite the group of judges.

First off, let's list all eight judges. (Current position in parentheses)
  • Michael J. Luttig (US Court of Appeals for the 4th Circuit)
  • John Roberts (US Court of Appeals for the DC Circuit)
  • Emilio Garza (US Court of Appeals for the 5th Circuit)
  • Michael McConnell (US Court of Appeals for the 10th Circuit)
  • Alberto Gonzales (Attorney General of the United States)
  • J. Harvie Wilkinson III (US Court of Appeals for the 4th Circuit)
  • Edith Brown Clement (US Court of Appeals for the 5th Circuit)
  • Samuel Alito (US Court of Appeals for the 3rd Circuit)
Of those on the list, I classify three of the judges as absolute "No" votes for nominees. They are John Roberts, J. Harvie Wilkinson III, and Samuel Alito.

Those classified as questionable or maybes are Michael J. Luttig, Emilio Garza, and Alberto Gonzales. I'm expecting outrage at listing Gonzales on my list of questionable/maybes. While his memos and judicial thinking on the issue of the Guantanamo detainees is quite disheartening, I think that his overall jurisprudence would outweigh the compelling interests he faced as White House counsel and as a member of the Bush Administration. Simply, as a Supreme Court Justice his job isn't on the line. His moderate rulings on abortion and affirmative action make him a qualified candidate simply because the balance of the Court would effectively stay the same.

Finally, only two judges are on my approval list. The first is Michael McConnell, long mentioned as the bipartisan candidate of choice with the support of many in liberal academia. Moreover, his independence has shown through in his jurisprudence possibly moreso than any other name on the shortlist.

The other judge is Edith Clement Wilson, the lone woman on the shortlist. Her rulings seem pragmatic and consistent with the principle of stare decisis. Moreover, the lack of controversial rulings or statements makes her immune to campaigns from interest groups on both sides of the political spectrum. Unfortunately, a conundrum still exists because we don't know the true entirety of her jurisprudence.

Now, this is all just preliminary speculation and reading on my part. This week will undoubtedly include a lot of reading on these potential nominees from sources on both sides of the aisle. Truly though, should Rehnquist resign America is destined for quite the divisive battle.

Nevertheless, a common approach exists and that is bipartisan compromise and shared negotiations. That was the way many Supreme Court nominations have proceeded in the past, and it is one that both People for the American Way and myself subscribe to.

Luttig and Roberts

Here is a profile of two of the leading candidates for an open Supreme Court seat, J. Michael Luttig and John Roberts, Jr. I found this passage about Luttig particularly interesting, and wholly endorse the procedural principles articulated in it:
As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent. He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher - and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.

Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

"At the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders possible, that can restrain a judiciary that serves for life and is at the pleasure of no one," Luttig wrote in a 2001 case.

As a result of that approach, Luttig sometimes reaches decisions that cannot be called conservative. In one recent case, for example, he departed from conservative colleagues to find that some people convicted of serious crimes had a constitutional right to get DNA evidence if it could prove their innocence.

My one question: is it really "conservative" to deny a defendant right to exculpatory evidence?

A picture of the judicial left and of the values endorsed by power

This may be interesting. It is a list of the members of the Coalition for a Fair and Balanced Judiciary. I provide it to show what sort of advocacy groups on the left are weighing in on judicial issues. It is not fully comprehensive, but my sense is, it's not far from comprehensive either. The one advocacy community perhaps under-represented, though certainly present, is the one dedicated to the virtues of judicial and democratic process, over and beyond questions of policy substance (we are one such group). My impression is that right now there tend to be more of these groups on the left than the right. The reason, I think, is that people, whose right-wing sympathies trump procedural concerns, are naturally happy to see the government endorse their perspectives, even when that comes at the cost of balance and the diminishingly fair representation of the full spectrum of political values of the American people.

A particular version of right-wing ideology has indeed come to dominate the government. People who endorse that ideology would be undermining what they hope to acheive, if they advocated in favor of democratic process over anti-democratic domination. When one ideological faction dominates government, it is to be expected that members of that community will support the domination. Certainly, if left wingnuts controlled all the branches of American government, their supporters would be silent on the problems that fact caused for American democracy. Indeed, the Heritage Foundation is quite capable of making principled stands on the importance of democratic process; only, it won't do so until those stands support its home team. This all is well illustrated by the filibuster controversy. This year Republicans have made specious constitutional arguments in favor of abolishing the filibuster. As little as five years ago, the Democrats wanted to abolish the filibuster and Republicans wanted to preserve it. The sole difference being, of course, that Clinton was president then and not Bush.

Conversation, from a different perspective

The real problem with the political culture surrounding the judiciary isn't with the issues of substance or legislative policy, which judges rule on within the framework of constitutionality. Indeed, the real problem isn't with judges at all. The question of which judges and how different people hope they interpret the law is contentious, because the substantive issues provoke fundamental disagreement. But the real problem is the sort of conversation that these fundamental disagreements give rise to -- mean, dismissive, disrespectful, insulting discourse; you can't really call it conversation at all. The inclination to attack and dismiss rather than exchange and converse is the real problem because, as long as political advocates treat each other in such a fashion, the substantive disagreements will never be resolved; they will grow more intractable. Reverend Jerry Fallwell provides us an edifying example of the problem. This is a list of the words he uses in characterizing those he perceives as his enemies:
  • panic-stricken
  • frantically
  • whining
  • typical (i.e., "have, in typical fashion, attempted to rewrite history")
  • MTV generation
  • frenzied assault
  • agressively disrespectful (double-standard alert)
  • bitterly (double-standard alert)
  • angry rhetoric (double-standard alert)
  • empty and hysterical
  • radical
  • I often wonder how their supporters take them seriously
Needless to say, the Reverend made no attempt to find virtue or reasonableness in the positions or motives of those he disagrees with. I thought I would also find similarly unbalanced language -- but positive -- applied to those he perceives as his allies. Interestingly, I did not. This is itself a symptom of the disease: the Reverend Fallwell is much more interested in attacking and blaming the other side than he is in defending and praising his own side.

UPDATE: I forgot to mention this book I have been reading, Democracy and Tradition, by Jeffrey Stout, a professor of Religion. It speaks to precisely this problem of mutually productive conversation between people with different fundamental commitments. Described thus:
Asking how the citizens of modern democracy can reason with one another, this book carves out a controversial [not really] position between those who view religious voices as an anathema to democracy and those who believe democratic society is a moral wasteland because such voices are not heard. Drawing inspiration from Whitman, Dewey, and Ellison, Jeffrey Stout sketches the proper role of religious discourse in a democracy.
I would have said it is an attempt to resolve the contradiction between contractarian instincts (e.g., John Rawls) that we can't talk fairly without common premises and the easily observable fact that, well, tough, people do have different premises, this ain't gonna change, it oughtn't to change, and they still have to talk -- with particular reference to how this contradiction plays out when religious premises are part of a pluralistic, democratic conversation. It is smart, enlightening and, sometimes, inspiring.