The Yin Blog

Sotomayor, Supreme Court nominees, and a suggestion for Obama

If the Senate Judiciary Committee vote is any indication of things to come, it looks like Judge Sotomayor will be confirmed handily, but with nowhere near the commanding votes that Ruth Bader Ginsburg or Stephen Breyer got (well over 90%).  Instead, it'll probably be something like 65-35, with a few Republicans breaking ranks to vote to confirm, but most voting against her.

I think that's too bad, as she's plainly well-qualified to be a Supreme Court justice.  It's especially good that, unlike the rest of the Court, she actually has trial-level experience, not just as a former district court judge, but also a federal prosecutor.  Perhaps someone with trial-level experience will keep the Court from issuing opinions like Clinton v. Jones that exhibit an alarming degree of cluelessness about the way modern litigation works.  However, as many have noted, President Obama can hardly complain if Sotomayor gets a bunch of "no" votes, as he himself voted against John Roberts and Samuel Alito even though both of them were well-qualified as well.

My view is that elections matter, and the President is entitled to a large degree of deference in his selection of Supreme Court nominees.  If the President nominates someone who's simply not up to the job (e.g., Harriet Miers, not because she hadn't been a judge or "only" went to SMU law, but because she couldn't even answer the Senate's questionnaire intelligently), the Senate should feel free to vote down the nominee.  And someone who doesn't have the right judicial temperment could also be voted down.  But pure ideological disagreement shouldn't be a reason to vote against the nominee.

There's a way for Obama to make a grand gesture -- he could publicly say that his votes against Roberts and Alito (especially the former) were mistakes.  He might even apologize to them.  By owning up to a mistake, he could began to break the cycle of increasing partisanship in Supreme Court confirmation votes.

Re-enacting the Pentagon Papers argument

A couple of weeks ago, in connection with the play "The Battle for the Pentagon Papers," which was being performed at Hancher Auditorium, the law school presented a re-enactment of the Supreme Court oral argument in New York Times Co. v. United States.  This was all the brainchild of my colleague Randy Bezanson.  Dean Emeritus Bill Hines played Solicitor General Griswold, former UI General Counsel Mark Schantz played Alexander Bickel, and eight of my colleagues and I played the Supreme Court justices.  I was fortunate enough to play Justice Harlan -- my ideal justice.

What was especially interesting was the presence in the audience of Daniel Ellsberg, the RAND analyst who copied the Pentagon Papers and leaked them to the New York Times and the Washington Post.  Ellsberg was definitely a . . . character, and I was delighted to get to meet someone once accused by Pat Buchanan of having cost the United States the Vietnam War.

Here's a Daily Iowan story about the event, which also contains a Quicktime video.

Oops, a constitutional law error in "Prison Break" season 2

I've been rewatching season 2 of "Prison Break" on DVD while using the treadmill, and I realized that the show contains a serious constitutional error.  (Shocking, I know!)  Specifically, part of the continuing plotline involves then-Vice President Carolyn Reynolds' offering the VP slot on her Presidential ticket to Illinois Governor Tancredi.  In exchange, Tancredi is supposed to offer no resistance to the execution of Lincoln Burrows.  During the second season episode "Sweet Caroline," however, now-President Reynolds gives a speech in Chicago in which she says that she wouldn't be where she is today without the support of her home state of Illinois.

But wait, under the Twelfth Amendment, the President and the Vice-President cannot come from the same state.  Thus, Reynolds and Tancredi couldn't have been on the same ticket . . . .

Jeffrey Rosen's "The Supreme Court"

I just finished reading Jeffrey Rosen's The Supreme Court: The Personalities and Rivalries that Defined America -- in just a couple of days (though the fact that it's spring break helped).  It's a fast and fun read.

Although Rosen is a law prof at George Washington University, this is more of a biography than an legal academic book.  Rosen looks at four pairs of men -- 7 Supreme Court justices and 1 President -- who collectively present evidence for Rosen's thesis, which is that moderate pragmatists end up having more long term influence than ideologically pure warriors.

The pairs he examines are:

1) John Marshall (M/P) and Thomas Jefferson (IPW)

2) John Marshall Harlan (M/P) and Oliver Wendell Holmes (IPW)

3) Hugo Black (M/P) and Melvin William Douglas (IPW)

4) William Rehnquist (M/P) and Antonin Scalia (IPW)

Of these, the only ideologically pure warrior to have influenced constitutional law in the long run, according to Rosen, is Holmes, and only because he moderated his judicial philosophy in the 1920s.

As I said, this is a fun book to read.  Rosen does a good job of bringing the figures to life, with a journalist's eye for telling details, such as the skepticism with which the other justices viewed Douglas's first draft of Griswold.  It seems that at the same time that Douglas was waxing about the importance and sanctity of marriage, he was in the process of divorcing his third wife so that he could marry his fourth wife, a twentysomething student.

Interestingly, Rosen paints a pretty sympathetic and flattering picture of Rehnquist.  True, he does note that the Chief Justice "probably lied" at his confirmation hearing when he testified that a memo he wrote as a law clerk to Justice Jackson -- urging adherence to the separate but equal doctrine in Plessy v. Ferguson -- was meant to express the justice's views, not his own.  But overall, Rosen notes how Rehnquist was relatively moderate, especially compared to Scalia, and that Rehnquist's influence has correspondingly been greater.

My take on Hamdan

I've got a new article up on SSRN, titled "Tom and Jerry (and Spike): A Metaphor for Hamdan v. Rumsfeld, the President, the Court, and Congress in the War on Terrorism."  Yes, I do start with a brief discussion of the old "Tom and Jerry" cartoons, which I use as a metaphor for the three branches of government.

The full abstract is:

This article is part of a symposium, guest edited by Mark Tushnet, reviewing key decisions from the Supreme Court's October 2005 term. The landmark decision in Hamdan v. Rumsfeld has been emphasized as one of statutory interpretation, leaving it up to the President to seek from Congress the authority he deems necessary to fight the global war on terrorism. Yet, Hamdan is not merely a decision of statutory interpretation. It furthers a trend begun in the 2004 trio of terrorism cases: Rasul v. Bush, Rumsfeld v. Padilla, and Hamdi v. Rumsfeld. Those cases were also (primarily) statutory interpretation cases, but with a subtle distinction: the two cases brought by citizens resulted in interpretations of statutes favorable to the government; the one case brought by aliens, like Hamdan, resulted in interpretations of statutes favorable to the individuals. In other words, these cases cannot be explained as instances where the Court has consistently construed ambiguous statutes against the Executive Branch. In this article, I consider why the Court has opted to favor aliens but not citizens. A tempting explanation is that the Court is acting in a "representation-reinforcing role," ensuring that politically powerless aliens detained outside the country are not oppressed by the political branches. However, under that analysis, the Court would be expected to make decisions of constitutional law, not statutory interpretation. Instead, I conclude that the Court's decisions can be understood as taking advantage of congressional inertia. Congress remains free to undo the Supreme Court's statutory interpretations, but it must overcome that inertia to act. In effect, this is a "clear statement of intent to discriminate against aliens" requirement.

A new voting heuristic?

I'm thinking of testing a new voting heuristic based on Daryl Levinson & Richard Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311 (2006), which builds on earlier work suggesting that the political parties have essentially obliterated the traditional notion of separation of branches.  We do not have political branches that compete for power, as Madison envisioned, due to party loyalty. Thus, Congress' response to Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), was to pass the Military Commission Act of 2006, which gave the President about 90% (estimate) of what he was asking for.  This occurred because, Levinson & Pildes would suggest, Congress was controlled by the same party as the President.

Thus, my new voting heuristic to be tested is to vote for divided government, not because it leads to gridlock, which is good; but because it functionally replicates the original separation of powers with branches checking one another.

In the off-year elections, this is an easy rule to apply: vote for the congressional candidate (and senate candidate, if a Senate seat is up for grabs) who belongs to the opposite party from the President.

In the Presidential election years, this is more difficult to apply.  Perhaps Congress will be firmly in the hands of one party, in which case the rule dictates which Presidential candidate to vote for. Otherwise, one might have to look to polls and see if there is a clear expected winner of the White House and vote in the congressional races acccordingly.

Of course, this can be disconcerting -- after all, what if the heuristic leads me to vote against a Presidential candidate that I actually like?  Well, I have free will, so I guess I would vote for the candidate I liked (if there is such a person).  But the implications of doing so, assuming that Levinson & Pildes make a persuasive case, are interesting.  After Hamdan, the Court was roundly congratulated for upholding the principles of separation of powers and for ensuring that branches would check one another.  To the extent that one agrees with that view, and to the extent one agrees with Levinson & Pildes, should we be voting for divided government?

It doesn't seem to be an adequate response to say that, "Yes, but I would like to have my party in control of both political branches, because we would do the right thing."  After all, that's just a question of disagreement about results, not structure.  No doubt the Republicans believe that they are doing the "right thing" currently. The separation of powers criticism is structural in that it argues that decisions reached when the branches aren't checking each other are suspect.  That structural defect is present no matter which party is in control of the political branches.

Thoughts?  It seems like a crazy idea, but perhaps it's just one of those Tragedy of the Commons situations where we would all be better off doing this, but can't trust the "other side" to do the same thing, so we end up collectively making things worse.  (Of course, belonging to neither party makes it easier for me to contemplate this heuristic.)

Does writing and reasoning matter if you get the result right?

Peter Friedman, guest-blogging at Is That Legal?, writes (quoting and criticizing me):

I'm sick of reading criticisms of Judge Taylor's decision enjoining the NSA electronic intercept program as poorly written and reasoned: "What we can judge is the end product, and in this case, the end product is not very good." The problem is that the writing and the reasoning is not the end product--the decision (the order itself as a judicial act), as any lawyer understands, is.

I have to confess that I'm a bit puzzled by this.  While it's certainly true that, as a matter of authority -- in the sense of how the litigants have to respond -- the decision is what matters, I think that judging is quite like math.  How you get there is just as, if not more, important than what you come up with.

Suppose that instead of the actual opinion that she produced, Judge Taylor had simply announced her decision as follows:

The plaintiffs have standing to challenge the NSA wiretapping program, the state secrets doctrine does not bar this Court from reaching the merits of the wiretapping program (but it does bar the Court from deciding the data mining program), and the President lacks legal authority to engage in warrantless domestic electronic surveillance.

Would that really be an acceptable opinion because it happened to reach what many people think is the correct result?

I'll grant that at a certain level, academic fascination with the beauty and brilliance of opinions can get carried away.  Herbert Wechsler, one of the greatest con law/fed courts professors of all time, apparently agonized over how Brown v. Board of Education could be defended, not in terms of its result, which he thought obviously correct, but its reasoning.  At some level, I think you have to agree with those who think it doesn't matter (too much) how you justify Brown; it has to be right.

That said, I don't think that Judge Taylor's decision falls into that camp.  How you get there does matter, and it should matter, even if she got to the right place.

UPDATE: Ann Althouse's NYT op-ed provides even more reason to value reasoning, rather than just results:

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

Is Judge Taylor's ruling bound to be reversed by the Sixth Circuit?

It may be a pretty badly written opinion, and I would be surprised if the Sixth Circuit were to affirm Judge Taylor's decision using her, uh, reasoning.  However, if, as many commentators believe, the NSA wiretapping program violates FISA, and it was not authorized by the AUMF, and it cannot be supported in the face of that violation by the President's inherent Commander-in-Chief powers, then the Sixth Circuit could perhaps sustain the injunction on that basis, while disavowing Judge Taylor's reasoning.  For example, in Owens Corning v. Nat'l Union Fire Ins. Co., 257 F.3d 484, 496 (6th Cir. 2001), the court disagreed with the lower court's interpretation of an insurance contract but affirmed on other grounds supported by the record.

Linda Greenhouse's "Becoming Justice Blackmun"

I finished Linda Greenhouse's biography of Justice Harry Blackmun on my flight back from the SEALs conference, and it held up to my early favorable impression.

One of the interesting things about the book, to me, was Greenhouse's decision to eschew reliance on interviews with any of Justice Blackmun's former law clerks.  (Indeed, the only personal interviews were of the justice's daughters, I think.)  Instead, the narrative is drawn from Justice Blackmun's files, which was possible because the justice was a packrat.

There's a lot to be said for reliance on contemporaneous documents, as opposed to personal memories, particularly when one seeks to reconstruct 30 year old events on matters as controversial as Roe v. Wade, among others.  Even assuming good faith on the part of participants, it's easy to see how memories might be influenced by knowledge of the country's culture wars, etc.

On the other hand, reliance on documents can be dangerous, as there is the possibility of reading things devoid of context.  For example, David Garrow's recent critical article on Justice Blackmun was also based only on documentary material.  Garrow's conclusion was that Justice Blackmun essentially abdicated his role as the justice and let his clerks run amok.  I suppose if you looked only at the detailed memos that his clerks produced, and compared those to the opinions that Justice Blackmun authored, you might think that.  But I suspect that Garrow was seduced into this conclusion in part due to a less than accurate understanding of the way that judicial chambers tend to work.  A detailed bench memo can result from length personal interaction, which would not be recorded in writing; thus, what appears to be 100% the clerk's hard work may in reality be filling in the blanks in the path already thought out and charted by the judge.

Greenhouse does a good job of avoiding this trap, as she recounts the events without attempting to draw conclusions about them.

Human Rights First on appellate nominee

Human Rights First has a press release calling on the Senate to question Fourth Circuit nominee William Haynes closely, due to his earlier role in the Bush Administration's Guantanamo detainee strategy.  Here's a taste of the press release:

As General Counsel of the Department of Defense, Mr. Haynes helped to formulate policies governing detainee interrogation and detention that violated U.S. and international law. He recommended that detainees in Guantanamo could be subjected to abusive interrogation techniques, including stripping them naked, depriving them of light, forcing them into stress positions, forcibly shaving them, and using dogs to intimidate them. He also advised that using wet towels and dripping water to make the detainees believe they are suffocating (waterboarding) and threatening them and their families with death might be “legally available” options.

(Speaking of "waterboarding," I've read descriptions of the technique, but it wasn't until the season 3 opener of USA Network's "The 4400" that I had a sense of what it was like.)

Human Rights First asks the following:

In particular, the Senate should ask Mr. Haynes if he believes the United States is bound to observe the Geneva Conventions. Senators also should inquire whether Mr. Haynes would uphold legal restrictions under U.S. and international law prohibiting all forms of torture and other cruel, inhuman and degrading treatment.

I have doubts about the effectiveness of such a line of questioning.  If I were Haynes, I would respond that the Supreme Court has recently ruled on this matter in Hamdan v. Rumsfeld, holding that the U.S. is bound to observe the Geneva Convention, and that as an inferior court judge, I would be obligated to follow Supreme Court precedent.  If that's enough for Human Rights First, then I suppose it will get what it wants.