Tuesday, October 21, 2008
UPDATE, 10/23, 4:17 CT: Here's the podcast. Enjoy!
I just got back from a wonderful talk given by Professor Joseph Margulies of Northwestern Law in the first of the ABA's public program series at ABA HQ here in Chicago. Margulies, lead counsel for the petitioner in Rasul v. Bush and author of the outstanding book Guantanamo and the Abuse of Presidential Power, discussed constitutional law, detainee policy, and the human side of detainee representation in this informative and moving event. The ABA story is here. But you'll really want to check out the podcast; I'll post it when it becomes available. This will complement your classes on the Guantanamo cases very nicely.
Adam Liptak (NYT) reported today that Judge J. Harvie Wilkinson III (4th Circuit) and Judge Richard Posner (7th Circuit) criticized D.C. v. Heller, last term's gun-rights case, for its methodology. Particularly, Judge Wilkinson wrote in a Virginia Law Review article, and Judge Posner wrote in The New Republic, that the Court's methodology had some of the same problems as the Court's methodology in Roe v. Wade.
The articles aren't new, and I suspect many of us have been using them and Heller to illustrate and discuss originalism in our classes. (Heller, of course, is a wonderful case study, because both majority and dissent claim to adopt a form of originalism, but they come out very differently.) But Liptak's article, which clearly and concisely sets out the arguments and explores (even if only briefly) the politics of aligning Heller with Roe, gives us yet another way to share these issues with our students.
Here are some highlights from Liptak's article:
"The Roe and Heller courts are guilty of the same sin," one of the two appeals court judges, J. Harvey Wilkinson III, wrote in an article to be published in the spring in The Virginia Law Review.
Similarly, Judge Richard A. Posner, in an article in The New Republic in August, wrote that Heller's failure to allow the political process to work out varying approaches to gun control that were suited to local conditions "was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade." . . .
In Judge Wilkinson's view, the upshot of the court's extensive historical analysis was that "both sides fought into overtime to a draw."
Others said the quality of the combat was low. "Neither of the two main opinions in Heller would pass muster as serious historical writing," Jack Rakove, a historian at Stanford, wrote on the blog Balkinization soon after the decision was issued. . . .
Judge Wilkinson's basic critique is that the majority, like that in Roe, used an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process. He assumed, as most experts do, that the decision would apply to the states.
"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."
The Heller decision, Judge Posner wrote in The New Republic, "is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology." . . .
Mr. Levy, who helped win Heller, said some conservatives wanted almost all decisions to be made by the political branches rather than teh courts.
"But these are constitutional rights," Mr. Levy, now chariman of the Cato Institute, a libertarian research group, said of the rights protected by the Second Amendment. "They are not rights consigned to the legislature."
The analogy to Roe, he went on, is misguided. There is no reference to abortion in the Constitution. . . .
In his article, Judge Wilkinson wrote that he "readily agreed" that Roe "involved the more brazen assertion of judicial authority." But he added that the Roe and Heller cases shared a number of common flaws, including "a failure to respect legislative judgments," "a rejection of the principles of federalism" and "a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation."
Judge Wilkinson saved particular scorn for a brief passage in Justice Scalia's opinion that seemed to endorse a variety of restrictions on gun ownership. "Nothing in our opinion," Justice Scalia wrote, "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Whatever else may be said about the Second Amendment, Judge Wilkinson wrote, those presumptions have no basis in the Constitution. "The Constitution's text," he wrote, "has little to say about restrictions on firearm ownership by felons as it does about the trimesters of pregnancy."
Monday, October 20, 2008
The Wall Street Journal printed excerpts from Justice Thomas's Wriston Lecture to the Manhattan Institute last Thursday. Here's the last paragraph:
Let me put it this way: there are really only two ways to interpret the Constitution--try to discern as best we can what the framers intended, or make it up. No matter how ingenious, imaginative, or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.
As I pointed out last week, John McCain stated in the debate that he would like to have a line item veto. As luck would have it, the debate aired the evening before my class and the day after our discussion of Clinton v. New York. As my students and I talked about it, I said, "Well, let's give McCain the benefit of the doubt. Perhaps he meant some revamped version of the line item veto that would be constitutional." However, I then admitted that I was hard pressed to think of such an example.
I've continued to think about this since Thursday morning, and I still can't think of an example. In an especially clear opinion, the Clinton v. New York Court explained why the line item veto violated the cherished principles of separation of powers. So, the options would be to: 1) wait for a majority of the Court to follow Justice Breyer's view and overturn the opinion; or 2) find a way to achieve a similar goal in a constitutional fashion.
That latter point is the focus of Professor Aaron-Andrew Bruhl's recent piece, Return of the Line Item Veto? Legalities, Practicalies, and Some Puzzles. The article explains that the more recent attempts to provide the president with a "line item veto" are not really giving the president any veto power at all. Rather, they would allow the president to make a list of allegedly wasteful spending programs and then return the bill to Congress for a quick "up-or-down" vote on the challenged provisions. Because both the executive and legislative branches are involved, the problem presented by the 1996 Act seems to be avoided. Since the proposal isn't a true line item veto - like the ones held by the governors of forty-three states - it is unlikely that we will ever see the issue presented in Clinton v. New York again.
Why does each president pine for this power? Is it more trouble than it's worth? As Professor Bruhl acknowledges, even the modified proposal might raise legal issues concerning the propriety of essentially forcing Congress to act within a time certain, along with justiciability issues. Moreover, from a policy perspective, it's unclear that giving the president some type of cancellation power will help our budgetary problems. In fact, it might even exacerbate them.
The justices have often said that many problems are not addressed in the Constitution because the Framers trusted that the political winds would guard against the most severe abuses of the discretion granted to the various political branches of government. This issue is a prime example of that truism. Perhaps some sort of "sunshine" law or other type of public awareness campaign could be undertaken to curb the most excessive practioners of pork barrel spending. If John McCain should lose in November, this might be a good place for him to focus his efforts, given his interest in the topic.
The Wall Street Journal reported last week that Bush administration officials "are pushing to rewrite a wide array of federal rules with changes or additions that could block product-safety lawsuits by consumers and states."
At issue is the practice of administrative agencies writing preemption clauses into proposed regulations, sometimes at OMB's behest, even though authorizing legislation does not contain a preemption provision. According to the WSJ, former administration domestic policy adviser Jay Lefkowitz said that the administration decided not to press its preemption agenda in Congress, because it might lose. It apparently has decided to take matters into its own hands.
The administration has argued that the clauses are evidence of federal preemption of plaintiffs' state tort claims, as long as defendants comply with federal law, thus undermining plaintiffs' claims--and protecting corporate defendants--in areas where the federal government regulates.
The Trial Lawyers Association (now the American Association for Justice) was quite critical in its report, after undercovering evidence of the practice through FOIA requests. The Chamber of Commerce's Institute for Legal Reform has been supportive of administration preemption efforts.
The Court may weigh in next month in Wyeth v. Levine, a case involving the federal preemptive effects of the Federal Food, Drug, and Cosmetic Act's labelling requirements. The FDA's preemption clause plays a bit role in briefing on the larger conflict preemption issue, but the administration's amicus brief addresses it squarely in Argument C.2., running from page 26 to page 27 (of the brief, not of the pdf file). The administration writes:
In the preamble to a January 2006 rule concerning the labeling of drugs, FDA explained that the government's "long-standing view" is that "FDA approval of labeling under the [FDCA] * * * preempts conflicting or contrary State law," especially considering that "FDA interprets the [FDCA] to establish both a 'floor' and a 'ceiling'" for labeling. 71 Fed. Reg. at 3934, 3935.
The Defense Department released documents in the government's motion for reconsideration of Hamdan's (of Hamdan v. Rumsfeld) sentence in response to requests by the Wall Street Journal. (WSJ story here; blog here.)
After Hamdan's military commission sentenced him earlier this fall to 66 months, but creditied him for 61 months, the government moved for reconsideration based on the commission's lack of authority to grant credit for time served. The government's motion is here; the defense's response is here; the government's reply is here. (Many thanks to the WSJ and reporter Jess Bravin for obtaining and releasing these.)
The arguments mostly center around the commission's authority (or not) to grant credit for time served under the Military Commissions Act and the Rules for Military Commissions. But pages 4 through 6 of the government's motion discuss wartime authority of the president, particularly authority to detain Hamdan as an enemy combatant (which the government argues is independent of any sentence meted out by the commission).
Sunday, October 19, 2008
Professor Heidi Kitrosser, University of Minnesota, posted two articles last week on ssrn taking on the accountability justification for the unitary executive theory. The theory, of course, has been subject to quite a bit of academic examination. But Kitrosser's critique--especially and uniquely focusing on the slice of the theory related to political accountability--are well worth a read. I highly recommend this pair of articles.
Kitrosser begins her project with The Accountable Executive. Here she argues that "there is a profound bond between the unitary executive theory and executive branch secrecy," and that secrecy, in turn, undermines accountability. And she goes further: the accountability justification for the unitary executive is undermined if this link is even merely arguable, because "then the argument from accountability simply is not so ironclad as to support a categorical unity directive."
The Bush administration gives us plenty of examples, but Kitrosser focuses on these two: the administration's influence upon EPA's decision to deny California's request for a waiver to exceed federal emissions standards; and the White House efforts to block and manipulate NASA's research on climate change. She persuasively argues that these examples illustrate "the negative correlation between a unitary executive and free information flow, and thus between a unitary executive and accountability." At least, she writes, supporters and opponents of the unitary executive theory "should be able to agree on the importance of clarifying the theory's parameters" in the interest of promoting transparency and accountability.
Kitrosser's second paper, Accountability and Administrative Structure, carries the argument forward in three ways. First, she expands her discussion of executive secrecy and lack of accountability to agency structure and argues that "[s]ome separation of [agency] functions and [agency] zones of independence from politics thus are called for so that the relevant actors (be they courts, Congress, the people, the press, or others) may ascertain what is [agency created] law, what is [agency] expertise, and what is politics . . . ."
Second, she adds critiques of formalist justifications for the unitary executive by arguing original intent: "[The] unitarians' core formalist point--that the Constitution's founders clearly understood the vesting of executive power in the President to entail exclusive power to implement legislative directives and to control others who engage in such tasks--not only is wrong, but is wrong partly because the founders were wary of the accountability risks posed by centralized presidential control."
Finally, she offers two additional and persuasive examples: the administration's rejection of EPA's reaction to Massachusetts v. EPA (and the White House's infamous refusal to open the e-mail) and the centralized OMB coordination of agency rule-making; and the politicization of the DOJ.
These articles are crisp and well argued; Kitrosser's examples are instructive and persuasive. Of course, one has to wonder whether the apparent correlation between the unitary executive and secrecy is necessary, or if it's merely a feature of this administration in the examples she offers. Kitrosser would say that it doesn't matter: That the unitary executive theory can correlate with secrecy is enough to show that accountability is no categorical justification for a unitary executive. She makes a good case. I highly recommend these.
Saturday, October 18, 2008
This week's installment of the "Saturday Evening Review" feature of the blog highlights an article I return to year after year. For an excellent schemata of the continuing debates of equal protection doctrine and theory, it's difficult to find a better article than Julie Nice's, Equal Protection's Antimonies and the Promise of a Co-Constitutive Approach, 85 Cornell Law Review 1392 (2000).
I've been using it as a basis for my introductory lecture on equal protection in Constitutional Law classes since I first read it. I also come back to the scheme throughout the semester.
Nice argues that equal protection jurisprudence has evolved around ten principle "antimonies," defined as "binary discourses" rather than "dichotomies" because they "typically present choices between two plausible albeit conflicting principles." Id. at 1394. Generally, I don't adopt Nice's precise use of language in class, but try to present her "binary discourses" merely as conflicting value judgments and principles. Her goal is to demonstrate how these conflicts might be transcended by what she calls a co-constitutive approach.
Here are her ten antimonies:
assimilation or antisubordination
sameness or difference
backward-looking or forward-looking
blindness or consciousness
classification or classes
intent or effects
public or private
process or substance
singular or multiple [identities]
fixed or fluid [identities]
She illustrates her discussion of each of these conflicting notions with a brief discussion of doctrine and theory. Post-2000 cases and theories update but do not alter the usefulness of her scheme. For those familiar with equal protection doctrine and theory, Nice's scheme does not readjust one's insights. But as a methodology for presenting the often unwieldy world of equal protection jurisprudence, it is a true classic - useful, enduring, and adaptable.
The South Africa Constitution is deemed by many to be one of the most progressive - - - if not the most progressive - - - in the world. However, recent developments threaten the independence of the judiciary and its power.
Judge Carole Lewis, one of South Africa's most respected jurists, discusses the threats to the judiciary by proposed legislation, concluding that:
The threats embodied in the Bills are now given crass voice by politicians who believe they are entitled to tell the courts how to behave and what to decide. Of course considered criticism of decisions is justifiable and indeed often welcome. Legal academics and commentators play a valuable role in constructive criticism of judgments after their delivery. But ill-informed and strident complaints serve no one well. The combination of the incursions into judicial independence by the proposed legislation, and the attacks on members of the judiciary of late threatens our democracy itself.
In addition to discussing these proposals in the context of specific Constitutional provisions, Lewis also discusses the proposal to expand the powers of the South African Constitutional Court beyond constitutional matters, making it a single "apex" court for the nation. Also helpful for those less familiar with South African constitutional law and courts, the first portion of her piece outlines the history and composition of the post-apartheid judiciary.
Originally delivered as a speech in Johannesburg on 14 October, the text is available here.
Raising separation of powers, nondelegation, and due process claims, the Electronic Frontier Foundation as lead counsel for the "AT&T class plaintiffs" filed its opposition to the motion to dismiss the consolidated complaints in the continuing FISA litigation in Northern District of California. As the EFF press release expresses it, the FISA Amendments Act allow the dismissal of the lawsuits about "the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month."
The hearing is set for December 2 - - - just in time for a final examination hypothetical.
The NYT reported yesterday that about 6,400 new Colorado voters may barred from voting, because they failed to check a box on the Colorado voter registration form. (The Denver Post article is here; the Colorado Independent reports here.)
The Colorado registration form requires new applicants to provide a driver's license number or Department of Revenue ID number, or the last four digits of their Social Security Number, pursuant to the federal Help America Vote Act. But the Secretary of State is rejecting applicants who provide their SSN, but fail to check a box that states that they do not have a driver's license number or Department of Revenue ID number. Take a look at the Colorado voter registration form here.
A group of advocacy organizations wrote the secretary or state, outlining the problems and alleging violations of federal law.
But is there also a federal constitutional violation here? The Court last term in Crawford v. Marion County Election Board, the Indiana voter i.d. case, seemed to set the bar higher for facial challenges under the Fourteenth Amendment Equal Protection Clause (fundamental rights, and Harper v. Virginia Board of Elections) based on generally applicable and rational restrictions on the right to vote. The Crawford Court ruled that Indiana's interest in preventing voter fraud was good reason enough to justify the hassle factor in the i.d. law.
Here, in contrast, there seems to be no good reason to reject applicants because they failed to check a box. The box isn't required by federal law, and it seems to do nothing to protect against voter fraud. Moreover, a reasonable reading of an application that includes only the SSN (and not the driver's license number or the Revenue ID, and fails to check the box) is that the applicant doesn't have a drivers license of Revenue ID. In other words: The box appears to serve no purpose. If this is right, and notwithstanding any violation of federal law, does this also violate the constitution, even under Crawford?
Friday, October 17, 2008
President Bush this week issued statements in conjunction with his signature on two bills, claiming that aspects of those bills infringe upon the president's Article II powers. The Washington Post reported here.
Section 6 of the Inspector General Reform Act of 2008 establishes independent legal counsel for agency inspectors general, while Section 8 directs the manner in which inspectors general submit budget requests. As to Section 6, Bush declared that "within each agency, the determinations of the law remain ultimately the responsibility of the chief legal officer and the head of the agency," thus subjecting independent legal counsel for IGs to legal interpretations of politically appointed attorneys and agency heads. As to Section 8, Bush claimed that the budget process infringes upon the president's authority to decide what to recommend to Congress: "The executive branch shall construe section 8 of the bill in a manner consistent with the President's constitutional authority to recommend for congressional consideration such measures as the President shall judge necessary and expedient."
Section 851 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 grants new personnel authority to a co-chair of the Commission on Wartime Contracting in Iraq and Afghanistan, while Section 902 provides for the appointment of a Director of Operational Energy Plans and Programs. Perhaps most interestingly, Section 1211(2) prohibits the use of appropriated funds "[t]o exercise United States control of the oil resources of Iraq," and Section 1508(b) requires the administration to negotiate with Iraq on cost-sharing for support of the "combined operations of the Government of Iraq and the Multi-National Forces Iraq undertaken as part of Operation Iraqi Freedom."
Bush wrote that these four provisions
purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to conduct diplomatic negotiations, to supervise the executive branch, to appoint officers of the United States, and to execute his authority as Commander in Chief.
And: "The executive branch shall continue to construe such provisions in a manner consistent with the constitutional authority and obligations of the President."
There's plenty here to supplement your lessons on executive authority, appointment power, foreign affairs, and separation-of-powers. And Sections 1211(2) and 1508(b) of the 2009 Defense Authorization Act offer the added bonus of being in the political spotlight.
Ilya Somin of the Volokh Conspiracy has an interesting reaction to the case of Chambers v. God, the now infamous case where former Nebraska state legislator attempted to sue the Lord. The court dismissed the case for lack of service. But according to Professor Somin, Con Law provides an even better basis for dismissal:
A better technical legal ground for dismissing lawsuits against God might be lack of redressability, which is a requirement of standing under federal law and (I presume) Nebraska law as well. If the plaintiff's injury can't be redressed by a judicial ruling, he doesn't have standing to file a suit. Since God is omnipotent, the judicial injunction Chambers seeks can't possibly force him to do anything he doesn't want to do anyway. Thus, no redessability and no standing.
Enjoy the laugh!
Hello professors! Here's this week's installment of The Teaching Assistant. This week will cover a number of topics.
The presidential debate offered some interesting Constitutional Law news. First, John McCain stated that he would seek a line item veto. Deja vu, anyone? At any rate, this will provide a great way to make your discussion of Clinton v. New York much more lively. (I'll have more to say about this in a subsequent post.) Second, McCain also indicated that he was opposed to abortion laws including requirements to protect the health (excuse me, "health") of the mother, though this is arguably the least controversial part of the Roe legacy. Sarah Kliff at Newsweek has a great piece explaining exactly what the health of the mother means. Even more helpfully for teaching purposes, she describes how some states deal with the issue.
In War Powers news, today, a deal was reached that appears to signal the beginning of the end of the American involvement in Iraq. One question for students might be: Why is it that under the War powers Resolution, the President can seemingly withdraw the troops without seeking Congressional approval? Is this truly the case? Should it be? Interesting stuff!
As my wonderful co-blogger has pointed out, the fate of the Article III courts could change drastically with the selection of a new president. Tony Mauro of The Legal Times has a wonderful piece asking preeminent legal scholars their opinions on how an Obama or McCain win could impact the Court's stance on abortion, affirmative action, and church/state issues. Your students will definitely be interested in this piece in an election year.
Over at the ACLU blog, they mention something that, as they note, has gone unnoticed: A ballot initiative in the state of Arkansas proposes a ban on any and all adoptions (or foster care placements) by persons who are unmarried. If you are discussing equal protection or fundamental rights, this is interesting on so many levels. While allegedly neutral to all persons who are unwed, it appears clear that the law has an animus toward same-sex families. Moreover, since same-gender marriage is not permitted in Arkansas, there is an additional discrimination. Finally, while I am aware that there is no real fundamentmental right to adopt a child, this hypothetical could be a helpful teaching tool.
Finally, Eugene Volokh's Conspiracy reports that the California Court of Appeal decided that providing funding for women-only domestic violence programs violated the California Constitution. Your students may be interested to know that under the California constitution, gender merits higher scrutiny than under the federal constitution. This may be an interesting point of departure.
That's all for this Friday. See you next week!
Amendments to state constitutions by voter initiative are a prominent feature of recent elections.
In Utah, the legislature sought to curb this practice. And the Utah Supreme Court unanimously ruled today that the law is unconstitutional.
Here's what The Salt Lake Tribune says:
The Utah Supreme Court on Friday struck down a new law limiting citizen-initiative powers.
"This direct prohibition of the subject of an initiative brought otherwise within the conditions, manner and time restrictions imposed by law is beyond the power of the Legislature to enact," wrote Justice Michael Wilkins in voiding SB53.
The unanimous opinion noted that the Utah Constitution gives both the Legislature and the people equivalent power to enact or change legislation.
The rest of the article is available here.
The opinion will be available on the Utah Supreme Court website here.
The American Constitution Society, the Constitutional Accountability Center, and the University of Pennsylvania Journal of Constitutional Law are hosting a conference at Penn Law on November 13 and 14, The Second Founding and the Reconstruction Amendments: Toward a More Perfect Union. On the 13th, the ACS and the National Constitution Center are co-sponsoring an event, The Legacy of 1808: Deconstructing Reconstruction. Both events are over November 13 and 14; both are in Philadelphia. And the line-ups for both are outstanding. More information and registration here.
Thursday, October 16, 2008
UPDATE, 10/17, 2:04 p.m. ET: The Supreme Court today in a short per curiam opinion granted the secretary of state's application for a stay and vacated the district court's TRO. The Court wrote, "Respondents . . . are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the HAVA] in an action brought by a private litigant to justify the issuance of a TRO." The Court expressed no opinion on whether the secretary of state properly implemented the HAVA.
Between the Court's decision last term in Crawford v. Marion County Election Board and the spate of litigation around voter registration and voting practices in the upcoming election, we're seeing the emergence of a new and powerful Right to an Undiluted Vote. This "right" belongs to those who are already properly registered to vote; it protects the strength of their vote against dilution by fraudulent and illegal voters, but also by fully eligible citizens who simply lack the proper i.d. (as in Crawford) or whose voter registration information doesn't match their motor vehicle information (because of changes in names and addresses, clerical errors, and the like). This right is so strong that it apparently hangs on bare and unsubstantiated claims of voter registration fraud (let alone allegations of the more serious voter fraud). Indeed, it is so strong that it may rival or even trump the more conventional Right to Vote. We shall see: The litigation in this election cycle seems primed to pit the Right to an Undiluted Vote directly against the Right to Vote in a way that will test the relative strength of each.
The latest case comes from Ohio, where the en banc Sixth Circuit in Ohio Republican Party v. Brunner just last week reinstated a district court's temporary restraining order requiring the secretary of state to provide all county boards of elections information on voter applicants whose voter registration information does not match their motor vehicle information. The plaintiff-appellee, the ORP, claimed that the secretary of state's procedure for comparing voter information in the state's voter registration database with information in the state's motor vehicle database, and for not reporting specific discrepancies to county election boards, violated the Help America Vote Act. (The ORP also claimed violations of Article II, Section 1, Clause 2 of the U.S. constitution; section 2 of the Voting Rights Act; the National Voter Registration Act; and the Equal Protection and Due Process clauses.) The ORP alleged that the secretary of state's process would lead to voter registration fraud and infringe upon properly registered voters' right to (an undiluted) vote. The case took on greater import when the secretary of state opened a week-long window in which Ohioans could register and vote (absentee) the same day.
But the ORP had no evidence of voter registration fraud resulting from the secretary of state's process. In fact, the district court could only draw on newspaper reports (here and here) of flaws with ACORN's mass registration drives for "specific examples" of irreparable harm to voters' undiluted votes. (The Sixth Circuit majority wrote, "The harm to the plaintiffs is evident from the nature of the claim they assert; they can hardly be required to show actual vote fraud to establish irreparable harm when the county election boards lack the means to detect any fraud that may exist.") But as the dissent pointed out, evidence from other states showed that mismatches resulted mostly from human error, not fraud, and, disturbingly, that mismatches more frequently bar non-white voters than white voters.
In short, ORP claimed a constitutional and statutory Right to an Undiluted Vote based on bare and unsubstantiated evidence of voter registration fraud. And it won (at least for now). But what happens when properly registered voters lose their votes (or get hassled out of their votes) because of a clerical error between the voter registration database and the motor vehicle database? Then we'll see how the Right to an Undiluted Vote fares against the more conventional Right to Vote.
We already have a glimpse of the answer: Crawford pitted those rights against each other in a different way, and the Right to an Undiluted Vote won. And so here's the ironic penultimate chapter in Brunner: the secretary of state's Application for a Stay of a Temporary Restraining Order to the U.S. Supreme Court (and the ORP's Opposition) goes to Justice Stevens (as Sixth Circuit justice), the author of the lead opinion in Crawford.
I'll post updates on the Con Law Prof Blog in this and related cases.
Wednesday, October 15, 2008
Senators Obama and McCain again tonight addressed judicial nominations, this time in response to a question about overturning Roe v. Wade. There little, if any, new material here--see my previous post on the candidates' positions under Interpretation--but the exchange is nevertheless interesting.
McCain addressed his position on the proper role of the Senate (to vote for nominees based on qualifications, not ideology), his position on Roe (that it was wrong, and that it is an issue for the states), and his ideal justice (the "best [person] in the United States of America who [has] a history of strict adherence to the constitution and not legislating from the bench").
Obama said that the U.S. constitution contains a right to privacy, and that it--no less than the First Amendment--cannot be subject to "state referendum."
Both agreed that a litmus test for candidates to the Supreme Court would be inappropriate.
This latest debate gives us yet another chance to contextualize discussions of federalism, constitutional interpretation, the role of judges in our constitutional system, and, of course, abortion.
The relevant portion of the transcript follows; find the audio and video on c-span (or any other widely available source) at 1:06.25.
MR. SCHIEFFER: All right. Let's stop there and go to another question. And this one goes to Senator McCain. Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't. Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain.
SEN. MCCAIN: I would never and have never, in all the years I've been there, impose a litmus test on any nominee to the court. That's not appropriate to do.
MR. SCHIEFFER: But you do -- you do want Roe v. Wade to be overturned.
SEN. MCCAIN: I think it was a bad decision. I thought it was a-- I thought it was a bad decisions. I think there was a lot of decisions that were bad. I think that the decision should rest in the hands of the states. I'm -- I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test. Now, let me say that there was a time, a few years ago, when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge. And the Democrats were blocking in an unprecedented fashion. We got together, seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative" judges. I voted for Justice Breyer and Justice Ginsburg, not because I agreed with their ideology but because I thought they were qualified and that judge -- and that elections have consequences, when presidents are nominated. This is a very important issue we're talking about. Senator Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so I -- that's what I will do. I will find the best people in the world -- in -- in the United States of America who have a history of strict adherence to the Constitution and --
MR. SCHIEFFER: But even if it was someone --
SEN. MCCAIN: -- not legislating from the bench.
MR. SCHIEFFER: Even someone who had a history of being for abortion rights, you would consider them.
SEN. MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade -- that would be a part of those qualifications. But I certainly would not impose any litmus test.
MR. SCHIEFFER: All right.
SEN. OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to -- to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance. Now, I would not provide a litmus test, but I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue, and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is -- is that women, in consultation with their families, their doctors, their religious advisors -- are in a best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum in the -- any more than, you know, our First Amendment rights are subject to state referendum, any more than, you know, many of the other rights that we have should be subject to, you know, popular vote. So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-word -- -world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit saying, "Equal pay for equal work," the judges said, "Well, you know, it's taken you too long to bring this lawsuit," even though she didn't know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts. John McCain opposed it. I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the -- the court has to stand up if nobody else will, and --
MR. SCHIEFFER: All right.
SEN. OBAMA: -- and that's the kind of judge that I want.
MR. SCHIEFFER: Time's up.
The issue has received some attention in the popular press and on the internet recently. These materials offer a nice introduction to the arguments--and a refreshing break from cases--for our students.
Steve Sanders, an appellate attorney with Mayer Brown in Chicago and a frequent legal commentator, posted an editorial on FindLaw last Friday. The piece, American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?, is a short, accessible review of the arguments on both sides of this issue--a good introduction for students.
For a broader discussion of the Court and foreign policy--including material on the Court's use of foreign sources in its constitutional opinions--see Harvard Law Professor Noah Feldman's piece in the September 28, 2008, NYT Magazine, When Judges Make Foreign Policy.
(And for the apparent trend among foreign courts away from citing U.S. Supreme Court opinions, see this NYT (Adam Liptak) piece, U.S. Court is Now Guiding Fewer Nations.)
For a longer discussion--and to hear it straight from the horses' mouths--check out the 2005 program featuring Justices Breyer and Scalia at the American University, A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication.