NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Friday, September 27, 2002 ::
11th Amendment again
After teaching Seminole Tribe to my students, I resolved to try to figure out why The Man adheres to an 11th Am. jurisprudence that seems at odds with some of his interpretive principles. Here's what I come up with.
Turns out the fons et origo for Justice Scalia's views on how to interpret the 11th Am. is his dissent in Pennsylvania v. Union Gas, 491 U.S. 1 (1989), the decision that was overruled in Seminole Tribe.
There, he weighed in on issue that the plurality opinion of the Court left unresolved: whether or not to overrule Hans v. Louisiana, 134 U.S. 1 (1890), the case that held that the 11th Am. bars suits against non-consenting by in-staters, even though the text of the 11th speaks only of out-of-staters.
It's an audacious dissent, because it starts of disagreeing with Justice White on a statutory issue, rejecting White's reliance on legislative history. It then goes on to defend adherence to Hans -- based largely on the legislative history of the 11th Amendment!!
Well, with Justice Scalia, you know this is not just sloppy drafting. You know that this juxtaposition is designed to force us to ask: what's the difference in these two instances of legislative history?
One is that the legislative history of the 11th Amendment is not "canned," the way leg.hist. in Congress usually is (committee reports drafted by staffers under pressure from lobbyists, scripted floor exchanges, etc.) By contrast, the remarkable national outrage at the Supreme Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), is clear evidence of a national legislative intent in the drafting and ratification of the 11th Amendment, the overarching purpose of which was to overrule Chisholm.
Now, granted, the 11th speaks only of state immunity against suit by out-of-staters. But the argument (as I understand it) is this: the Constitution, including the 11th Amendment, was drafted and ratified against a background of Common Law principles, including Common Law notions of sovereign immunity.
Of course, the people as sovereign legislator, in drafting the Constitution, are free to derogate from the Common Law. In Chisholm, the Court said the people had done so, big time, on the question of state sovereign immunity. Therefore, by enacting an amendment designed to make Chisholm go poof, the people, by clear implication, restored the previous doctrine of Common Law sovereign immunity that Chisholm had momentarily obscured.
Scalia's argument in Union Gas doesn't end there. So far, he has (I think) been trying more to explicate Hans than to state how Hans should have been decided as an original matter. He establishes that Hans is intelligible and defensible, not necessarily that it was correct.
Stare decisis and reliance interests take Scalia the rest of the way to his conclusion that Hans should not be overruled. He goes through the standard indicia of overrulability and finds that Hans does not qualify for the block: it is not obviously wrong, and it has generated considerable legal reliance interests (as distinct from personal lifestyle reliance interests, such as the Court referred to in Casey). So, we keep it.
I don't know if that's completely convincing, but there it is.
:: David M. Wagner 9:07 PM [+] ::
...
Estrada
I'm not going to orate as I did on Owen: just consider everything I said there as incorporated by reference here, mutatis mutandis. (And BTW, one of the things to mutatis is the spelling of "Owen": I corrected it, but my archives have inexplicably reinserted the erroneous "s" at the end of her name.)
Then go read Stuart Buck and Byron York.
:: David M. Wagner 6:54 PM [+] ::
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Plagiarism
Go here for an update on the student plagiarism problem. (Scroll down to post that begins "Eve Tushnet made her observations....") The Old Oligarch's observations deal with undergrads, but law students in courses requiring term papers should read them too. Especially the part about how the plagiarism-detection websites now available to professors.
:: David M. Wagner 1:48 PM [+] ::
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:: Wednesday, September 25, 2002 ::
Good post here by U. of Chicago's Prof. Jacob Levy contrasting the McConnell and Owen nominations; and here, on the pestiferous 17th Amendment, by Prof. Todd Zywicki, chez Volokh.
:: David M. Wagner 11:57 AM [+] ::
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:: Friday, September 20, 2002 ::
The Justice is an opera fan, right? So am I, and so is my father, and my father has just published an article in Opera News (registration required) about buying opera recordings on-line. It details the many ways in which one can order records from the comfort of one's chambers.
The cite is Alan Wagner, "Windows Shopping," OPERA NEWS, October 2002, 38.
(I'm writing at home just now, away from my Blue Book, so someone correct me if I have not used the proper form for non-sequentially-numbered journals. And if there's a way to do large-and-small-caps in Blogger, please let me know.)
:: David M. Wagner 8:59 PM [+] ::
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:: Thursday, September 19, 2002 ::
There's a USA TODAY profile of Our Hero, by Joan Biskupic, here.
It's generally a good piece, but I must reply to a few things that it is (as The Man once said in a much more important context) "beyond human nature to leave unanswered."
(USA TODAY in bold, me in plain type.)
He is especially critical of the middle-of-the-road reasoning of Justices Sandra Day O'Connor and Stephen Breyer. O'Connor, and to a lesser extent Breyer, have guided the court toward incremental changes in the law on issues ranging from abortion to crime and punishment. To them the law is fluid, the product of the specific facts of a case and evolving times.
Who elected "evolving times" to govern us, or the Justices of the Supreme Court to interpret "evolving times"? Article V is for "evolving times." The Court is for reading and applying the Constitution. Gaa, it's like talking to a brick wall.
Off the bench, the Catholic justice declared that any Catholic judge who wants to follow the church's stance against the death penalty, rather than legal precedent favoring it, should resign.
If the Church had a "stance against the death penalty," analogous to its teaching on abortion, as the article seems to imply, this hypothetical Catholic judge would be in a real bind. Read Evangelium Vitae -- not the whole thing, if you don't want to, but at least the capital punishment part. CP is specifically acknowledged to be potentially licit, though strongly discouraged. The Church's teaching on abortion is very different (something to do with the innocence of the killee).
Even so, Scalia is relatively young for a Supreme Court justice, and his influence could increase. With Republican George W. Bush in the White House and three justices (O'Connor, 72, Chief Justice William Rehnquist, 77, and John Paul Stevens, 82) possibly nearing the end of their tenures, Scalia eventually could be joined by other conservative appointees.
...Scalia's lack of influence on the court has led some analysts to speculate that his pointed opinions could be aimed as much at young lawyers who will be tomorrow's judges and attorneys general as they are at his colleagues.
All this grinning is giving me a headache.
Love him or hate him, students and scholars follow Scalia. That's partly because he's a wordsmith: He avoids legal jargon, and alternately quotes Shakespeare's Henry IV and the juvenile delinquents of West Side Story.
"People can actually understand his opinions," says Neal Devins, a law professor at the College of William and Mary in Williamsburg, Va. "Students remember Scalia opinions more than anyone else's."
Actually, he does use legal jargon, but in a way that shows sensitivity to English as well. The technical terms are all there, as many as necessary and no more, but with a flow that allows both lawyers and non-lawyers to follow his argument. Prof. Devins is exactly right.
But Georgetown University law professor Peter Rubin, president of the American Constitution Society, a nationwide group whose views are counter to Scalia's, says that "for all of his glibness, many students see that his vision is not faithful to the American tradition of respect for human rights and dignity."
One might expect to see "modern notions of" rather than "the American tradition of" in the above line. The claim as it stands is audacious.
Scalia has a reputation as the life of the party. He plays poker (sometimes with Rehnquist), sings and is a duck hunter. Scalia basks in his Italian heritage. He frequents the A.V. Ristorante Italiano in Washington, D.C.,
Darn tootin'. Best pasta in Our Nation's Capital!
taking anchovies on his pizza,
No joke? I started doing that too a little while back....
and once wrote to a reporter with whom he had sparred, "Nursing grudges is a very Sicilian vice, but ... not one of mine."
Oh, come, where's that old Rigoletto spirit? "Si vendetta, tremenda vendetta....!" (Just kidding, everyone.)
Before his appointment in 1986, Scalia had worked in the Nixon and Reagan administrations.
Nixon, not Reagan. He was Nixon's last AAG for OLC, holding that job during the impoundment controversy of 1974. And then in his dissent in Clinton v. NY he called Nixon "the Mahatma Gandhi of all impounders." Tee hee!
After he joined the high court, Scalia's aggressiveness irked some colleagues. He proved to be the opposite of Brennan: Rather than brokering compromises, Scalia fought over minutiae. It isn't unusual for him to join another justice's opinion, but to note that he doesn't agree with one paragraph.
Oh, sort of like footnote 6 in Michael H.?
Perhaps Scalia's most famous condemnation of O'Connor came in a 1989 abortion case, when he said her views "cannot be taken seriously."
And the way he cited Marbury there -- priceless! But "condemnation"? Come now. How about "critique of" or "dispute with"?
In 2000, when the court struck down Nebraska's ban on a midterm procedure it called "partial birth" abortion, Scalia's dissent again targeted O'Connor.
Kennedy, actually. That's because the dissent was aimed at those who thought the Casey compromise would allow for regulations such as the one struck down in Stenberg. That describes Justice Kennedy, not Justice O'Connor.
The pragmatic Breyer also is a regular foil of Scalia.
Except when they're together in an isolated dissent, as in Clinton v. New York.
During a forum at the University of Chicago last winter, he said that "the constitutionality of the death penalty is not a difficult, soul-wrenching question...."
Of course it isn't. The morality of the death penalty is a difficult, soul-wrenching question (to me, though not to Justice Scalia). The constitutionality of the death penalty is a real easy question. Or is everything that's immoral unconstitutional? Aren't you glad Justice Scalia doesn't think so?
The Rev. Robert Drinan, a Georgetown University law professor, says Scalia seems to adhere only to Catholic Church positions that match his conservative philosophy. Drinan calls Scalia's stance on executions "disappointing."
See reference to Evangelium Vitae, supra. I call the the Rev. Robert Drinan's casuistry disappointing.
(Yo, Father, hello! I used to attend your noon Mass at St. Joe's on the Hill from time to time!)
U.S. Appeals Court Judge Alex Kozinski is among the court observers who say Scalia is trying to influence the next generation while putting pressure on his colleagues. "The sheer power of his criticism forces legal thinkers to deal with his arguments," says Kozinski....
And deal they will.
:: David M. Wagner 4:40 PM [+] ::
...
I've added a few more "blawgs" to my right margin. More to come. Also, I'm planning another post on the 11th Amendment, and one on Chadha and Bowsher as nondelegation cases.
And by the way, if law students stop blogging, it's because of us law professors. Bwa-ha-ha-ha-ha-ha-hah!!
:: David M. Wagner 2:58 PM [+] ::
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:: Saturday, September 14, 2002 ::
Jonathan Riley-Smith, Crusade historian
This post is first and foremost for the edification of my Regent Law colleagues, who asked me to post it. For other readers, please excuse the momentary divergence from constitutional law. If you like medieval history too, read on.
Cambridge historian/theologian Jonathan Riley-Smith (hereinafter JRS) is the world's leading authority on the Crusades. Besides The Oxford Illustrated History of the Crusades and A Short History of the Crusades, he has written particular studies of the demographics of the First Crusade, the idea of crusading, and the military orders.
Last week he was in our area as the Presidential Lecturer in History at Old Dominion University, Norfolk, Virginia. I had the honor of being asked to help host him thanks to Prof. Robert Holden, professor of history at ODU, and founder of the Tidewater Forum, an association of Hampton Roads-area Christian scholars.
In his public lecture on Sept. 12, JRS focused on the historiography of the Crusades in the past two centuries, and the impact of this historiography on mass movements. Among the things I learned (and any errors herein are mine alone):
* Saladin: This mediocre Crusade-era Muslim warrior was turned into a model of chivalry by Sir Walter Scott in his novel The Talisman. Scott, as both a medieval-nostalgist and a "lowlands Calvinist" (JRS's term), wanted to valorize the Crusades without also valorizing the Catholic Church. This agenda was eventually reflected in academic historiography in classic 4-volume History of the Crusades by Sir Steven Runciman -- another "lowlands Calvinist." The Talisman was widely translated and read, but not into Arabic. The transmission of the Saladin myth to the Muslim world was unwittingly carried out by Kaiser Wilhelm I when he made an ostentatious pilgrimage to the Levant, and build a monument to Saladin at his dilapidated tomb in Damascus. Today, Saladin is seen by radical Islamists as the very model of a Muslim major-general; Islamist pamphleteers commonly sign their works "Saladin." For centuries before the Kaiser's journey, JRS specifically noted, there is zero evidence of Muslims even knowing about Saladin, much less revering him. For that matter, he also insisted, there is no evidence that they had any consciousness of the Crusades at all until the late 19th century, despite their current claim to be heirs of nine hundred years of humiliation.
* Politically loaded uses of the term "Crusade": In France, the romantic royalism of the Restoration Era (1815-30) brought forth a school of Crusade historiography that aggressively valorized the Crusaders, the Church, and the French nobility. The historian Michaud is one of these writers. Several decades later, France and other European nations were using the Michaud view to justify imperialism. Today's Islamists -- who see all resistance to Islam, whether coming from Christians, capitalists, Israelis, or even Communists as "crusading" (yes, the Soviets in Afghanistan in the '80s were "Crusaders," you see, because they were fighting against Muslims) -- got this idea from the Michaud-influenced imperialists. They ought to stop, JRS says: "Crusading" is an identifiable movement -- a papally endorsed military pilgrimage -- and the term loses meaning when applied to virtually anything disliked by Islamists.
* The First Crusaders: From such of JRS's published work as I was able to peruse before meeting him, I learned that his computerized tab-keeping on individual Crusaders (enabling him and his graduate students to keep track of individual Crusaders who turn up at random intervals in the fragrementary sources) has shown that the First Crusaders were not, as commonly thought, ne'er-do-wells and useless third sons: they were often heads of families, people with something to lose. Their religious fervor may be totally alien to today's zeitgeist, but the notion that they didn't have any -- that it was only a cover for greed, etc. -- is, JRS believes, overthrown by the evidence.
* Women in the Crusades: In response to a question, JRS noted after his lecture that women played two roles in the Crusades. One was as actual Crusaders, much to the surprise of the Muslims. The other -- "infinitely" more significant, JRS says -- was as transmitters of Crusading culture within families. His tracking studies show that an individual male was much more likely to go on Crusade if his mother or wife came from a family with a Crusading tradition.
:: David M. Wagner 9:54 PM [+] ::
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:: Wednesday, September 11, 2002 ::
And the result of the Florida gubernatorial primary is...
...unknown, due to voting irregularities, and the apparent loser, Janet Reno, is planning a challenge! (Click here.)
Back to the salt-mines, Florida election officials -- and this time, make sure everyone's Equally Protected! (Sigh....)
:: David M. Wagner 10:51 AM [+] ::
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:: Tuesday, September 10, 2002 ::
National Review Online on Christian universities
Interesting NRO piece here on Christian higher education, in which my law school is mentioned.
Just one quibble: author Naomi Schaefer appears to agree with the view that "many Christian scholars have grown 'weary' of the 'culture-wars mentality, led by spokesmen such as Jerry Falwell and Pat Robertson,' which pits the religious against the intellectuals."
Not sure just what that means, but, as the rest of the article makes pretty clear, the idea at Regent and elsewhere is to reclaim and deploy a rich Christian intellectual tradition. Any "pitting of the religious against the intellectuals" (I assume we're using "religious" here to mean "people of religious conviction and motivation") is being done by our critics, not by us. We believe there is "no dichotomy" here, and we're trying to prove it.
If the cited remark means that more Christian leaders are moving from an activist paradigm to an intellectual and academic one, well, it's good that that's happening, and it's good that NRO has reported it.
:: David M. Wagner 1:54 PM [+] ::
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:: Monday, September 09, 2002 ::
Owen mailbag
First come, first served.
Jim Nickens writes:
Oh come on.........
1. She got a hearing and a vote in the committee, more than many Clinton nominees
got.
2. ABA ratings are routinely derided by GOP hacks when they don't suit their purposes, and embraced
when they are favorable.
3. The GOP called the game and set the stakes on judicial nominations. Now they want to complain when they lose.
4. She was nominated for her ideological purity. There is no compelling reason she shouldn't be rejected on that basis.
Numbers 1 and 4 rather bounce off each other, don't they? If there's no compelling reason why Democrats (or rather, the Democratic leadership and those on the Judiciary Committee) shouldn't reject Owen for ideological impurity, surely there's no reason to complain of similar treatment of (a few) Clinton nominees. (BTW, did Clinton ever, as a courtesy either to his predecessor or to an adverse Senate majority, re-nominate a judicial candidate who had been nominated by his predecessor but not confirmed? I'm thinking of the esteemed Judge Gregory of the 4th Circuit, who, I'm proud to add, will be helping to judge a national moot court competition here at Regent next February.) On the ABA etc., more below.
T. Karney writes:
Mr. Wagner,
I see a couple of problems with your arguements (I can't address the
question of whether or not a single one of the judges nominated in the 16
years of the three presidents you mentioned were held from the floor, I
have not the data, so I shall take it as read, but the claim is sweeping).
The first is that, while not a judge, an ambassador was refused hearing
on te floor (and IIRC refused a hearing in committee) because Sen. Helms
was offended, personally, by the man's admitted homosexuality.
So that knife cuts both ways.
I can't speak for Sen. Helms himself, but -- assuming the reference is to the case of Mr. James Hormel -- the gentleman in question provoked entirely unnecessary opposition to his candidacy, not by his homosexuality per se, nor by being "out," but by his close association with a group in San Francisco whose stock in trade was scabrous, blasphemous, in-your-face mockery of the Catholic Church and its belief system, which is (as anyone with manners knows) also mockery of those who belong to that church and adhere to that belief system. Mr. Hormel refused to disassociate himself from that group in any way, despite repeated invitations.
Perhaps Sen. Helms would have maintained his opposition to Mr. Hormel even if the latter had issued a televised apology on prime time to all who had been offended (including Masons such as Sen. Helms, as well as Catholics). But as this was very far from what happened, the Hormel case remains a problematic one by which to assess any Senator's confirmation habits.
As this may apply to Justice Owen -- if she were a dues-paying member of Operation Rescue, at the Patron level, we would have a remote analogy to l'affaire Hormel.
Second is the bruitingof the ABA evaluation of the Judge in question.
If the Office of the President need not consider the rating when
nominating, why need the Senate consider it when deciding.
Sauce for the goose is sauce for the gander.
Very true, and this is the reason why I avoided exclusive reliance on Justice Owen's ABA rating. But surely Justice Owen's opponents are out there balancing the other end of the see-sawing skewer on which I am impaled: if high ABA ratings are effective to give a pass to ideologically charged Clinton nominees, and if low or mixed ones give effective cover to opponents of ideologically charged GOP nominees, then we have the same inconsistency in reverse. What's sauce for the gander is sauce for the goose.
Mitchell J. Freedman writes:
Wasn't the seat that Owens was going to fill the subject of two previous
Clinton nominees who didn't even get a hearing by Republican Senators?
I don't know. It seems unlikely that Senate Republicans could have gotten up the gumption to block (by whatever means) not one but two nominees for the same vacancy. But it is possible. (See Joseph A. Miller infra for more about GOP treatment of Clinton nominees, etc.)
If one takes a look at the records of Clinton nominees, one sees very few
"ideologues," unlike Bush nominees from what I've seen. One would think by
Bush's nominees that he won in a landslide and thinks he had a "mandate."
How to escape -- and whether escape is possible -- from ideologically driven use of terms such as "ideological" is a wonderful subject for academic research. In Blogistan, I don't believe it can be done. The second point here is more easily addressed. Is there any clause in the Constitution that conditions the President's powers on the margin of his election (either electoral or popular)? If so, why was it not discovered following the 1980 election?
Unlike Daschle's rather silly comment, Leahy's comments were more honest and
ultimately more sensible. And I would add that since Bush lost the popular
vote to a candidate who had his most disagreement with Bush over judicial
philosophies, why should Bush get any different treatment than Clinton
received at the hands of Republican Senators? Painting Daschle as, say,
Trent Lott...I wish. He's usually Tom Docile from where I see things.
Since Daschle's remarks were a major focus of my post, Mr. Freedman and I have a zone of agreement on this. I didn't catch Sen. Leahy's remarks. If they were along the lines of "Hey, this is culture-war politics, and we have the votes -- deal with it," then he would have earned much grudging respect from me.
I agree, however, with your point that this battle between Reeps and Dems
over judicial nominations is one important consequence of politicizing
issues within the judiciary. But I agree with that point less than I would
have thought. In terms of judicial activism, Baker v. Carr has nothing on
the mystical 11th Amendment/States' rights jurisprudence of the Rehnquist 5.
We may be closer here than Mr. Freedman thinks. As I have already blogged here, the Court's recent 11th Amendment jurisprudence hangs on a thin thread, and requires preferring precedent over text in a most un-Scalian fashion. As this line of cases develops, along with criticisms of it, I predict it will be a recurring feature of this blog.
And if I recall constitutional history, in terms of political activism, the
late 19th Century Supreme Courts beat Warren and his buddies by a mile. The
late 19th Century courts grafted corporate capitalism into our Constitution,
ignored the import of the 14th Amendment, overturned laws left and sometimes
right, etc. Rehnquist's pals are getting close to the late 19th Century
guys, though, I must admit, at least in terms of overturning laws by
judicial decision/fiat.
Are things at the point where defenders of (some of) the work of the Rehnquist Court are assumed to be defenders of Lochner as well? This ignores a verifiable fact -- that since the 1960s, under the intellectual leadership of Judge Bork and Justice Scalia, conservative constitutionalists have nailed to their mast the declaration that judicial activism is wrong in all its forms, and that the pro-business judicial activism of the Gilded Age was just as bad -- and bad for the same reason -- as the forms of judicial activism that emerged in the '60s.
Chuck Cooper, AAG for OLC under Reagan, used anti-judicial-activism quotes from Justice Robert Jackson to express the Reagan Administration's judicial philosophy -- and Rehnquist, let us not forget, clerked for Jackson. Mr. Freedman is preaching to the choir, if not to the curia.
And last but by no means least, Joseph A. Miller writes:
Dr. Wagner:
Re your blog article on the Owens nomination and the supposed obstructionism of the Democrats: Is your article supposed to be a joke, especially in its references to the "fair procedure" and upright behavior of the Republicans when Clinton was President? Why don't you tell us how many of Clinton's nominations were deliberately stalled by the Republican majority, especially at the behest of Jesse Helms, rightfully called by David Broder "the last outright white racist in the Senate"? But I shouldn't be surprised--I've come to understand that "conservative activists" like you will continually lie through their teeth and distort the record to win--at any cost.
Actually, any good game of "He Started It: Judicial Nominations Version" would have to include the potential Reagan candidates who never even made it to the nomination stage, because as soon as the administration sent the names to the ABA for its confidential evaluation, the names also ended up on the desks of the liberal interest groups, who then -- out of urgent moral necessity, of course -- shared their concerns, and the names, with equally concerned members of the media. The would-be-nominees thereby became "controversial," or even "embattled," which are Washington media-speak for "dying" and "dead," respectively.
How the groups got the names remains a mystery. Personally, I'd say Colonel Mustard, with the candlestick.
By the way, tell your friend Scalia that constitutional government finds its ultimate support in popular sovereignty, not God. If there were no God whatsoever, a powerful and convincing case could still be made for democratic-republican government. People like you and Scalia are a true threat to our country's Constitutional system, and are willing to bend the law out of all recognition in order to impose their "moral" vision on all of us.
Actually, Justice Scalia has defended almost the exact view of the sources of legal legitimacy that you espouse -- and has taken heat for it from religious conservatives. What I think the latter fail to understand is that the Justice does not read God out of the process altogether, but holds rather that in a regime committed to representative democracy, such as ours, the democratically accountable lawmaking process is the ordinary means by which the natural law (whether conceived in divine or secular terms) is to be implemented. So the natural law will be implemented if -- but only if -- the people want it.
This rules out (at least for purposes of the American regime) two alternative means of applying natural law: (1) unmediated recourse to revelation (not a popular choice, even among the "religious right," if Mr. Miller will credit me as a makeshift spokesman for this diverse and amorphous movement); and (2) discernment and enforcement of natural law by judges (all too frequent, Justice Scalia would say).
Mr. Miller should learn to recognize his allies on the Court.
:: David M. Wagner 9:59 AM [+] ::
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:: Friday, September 06, 2002 ::
Priscilla Owen
It's hard to add anything to the Wall Street Journal's editorial yesterday. The reduction of judicial confirmation to brass-knuckles ideological combat is perhaps best illustrated by the fact that the leaders of the current Democratic Senate -- unlike those of the Democratic Senate faced by Reagan in his last two years and by Bush the First in all four years, and the Republican Senate faced by Clinton in all but his first two years -- hasn't even allowed the controversial nominees to get to the floor.
They can't afford to: said nominees would be confirmed (Senator Miller of Georgia would vote with the Republicans), and Democratic Senate leaders can't afford that. They can alienate their liberal base on some issues, but not on judges. Because, regrettably, this is where the nation's real political issues -- unlike the ones we pretend to be interested in during presidential elections -- get fought out.
It's an unavoidable feature of the Warren legacy: no issue is too political to be outside the scope of judicial resolution under the 14th Amendment (see Baker v. Carr); indeed, perhaps the more politically charged it is, the more it needs judicial resolution (see Casey). So we have presidential and congressional elections over pot-hole issues, the great questions get judicialized, and the only politics that matters -- the only politics that deals with what human nature is and what the best regime is -- is fought out behind the scenes in the judicial appointment/confirmation process.
And since this is the only politics in which ultimate issues are implicated, it cannot suffer compromises. If "we" have the votes to kill "their" nominees on the floor, we'll send them to the floor. If not, we'll kill them in committee, even though this was not done even in the '80s or '90s, which were not exactly eras of peace and good will on the judicial appointment front. Whatever it takes.
The Washington Post's reporting was actually fair on this one, noting that Justice Owen received the highest possible rating from the ABA (though bracketing this information as a Republican talking point). Then comes Daschle: "I should say the message is this: We will confirm qualified judges. We've already confirmed 73 circuit and district court judges. Don't send us unqualified people."
It is to laugh.
Republicans, and others still caught up in antiquated notions of fair procedure that date from before scorched-earth politics came to the judicial nomination arena, stand aghast at someone entrusted with high political office labelling as "unqualified" a jurist of Justice Owen's standing, as measured in part, but by no means exclusively, by her triple-A ABA rating.
Indeed, who can tell whether there's still a human Thomas Daschle under there, who has difficulty looking at himself in the mirror. It doesn't matter. His party, sitting atop a rafer-thin Senate majority, has lost the confidence of many of its formerly reliable coalition members. He cannot afford to alienate coalition members who are still solidly in the party's camp. That includes the organized cultural Left, whose number one concern is the courts.
:: David M. Wagner 6:41 PM [+] ::
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:: Thursday, September 05, 2002 ::
APSA
That is, the American Political Science Association, and its annual conference, recently completed, in Boston.
First, I was very pleased at how my own paper "Civil Blood: the Political Science of Romeo and Juliet" was received. It was part of a panel called "Shakespearean Warriors," sponsored by the Claremont Institute.
For those of you who haven't made its acquaintance, Clarement is a wonderful think-tank out in California, centered around the "West Coast Straussianism" of Prof. Harry Jaffa. It is primarily interested in the American founding, seen as embodying certain permanent principles. In what I may call the Claremont view, the American founding borrowed judiciously both from the Enlightenment and from the Christian and classical traditions, and came up with a synthesis that was eventually undermined by the Progressive movement of the late 19th century.
Different schools of conservative thought locate the "original sin" of the USA at different points. Some Christian trads, especially Catholics of the Bozell school, see it in the (oft-exaggerated) "deism of the Founders." Southern conservatives see it in the triumph of industrialism and the defeat of localism in the Civil War, or even in the failure of the (mis-named) Anti-Federalists to prevent the adoption of the Constitution. Claremonters see it in the explicit rejection of 1780's constitutionalism by Woodrow Wilson, Frank Goodnow, Herbert Croly, and other theorists of the Progressive movement.
You'll notice I've declined to select a personal favorite among these views. I'll take my stand on this, though: Claremont puts on the best panels at APSA conferences. Besides the one at which I spoke, Claremont held panels on:
Ancient and modern views of property. Here, Prof. Jackson Barlow of Juniata College took issue with those who read Cicero as a proto-Lockean: Cicero defended property not as a natural right of individuals but as part of a Rome's balanced constitution; i.e. emphasizing the public good that comes from the institution of property, rather than the private goods of owners. Prof. Eric Claeys, a former Rehnquist clerk now teaching at St. Louis University Law School, argued that Founding-era concepts of property had environmental concerns (as we would call them today) built into them.
The American version of the "knight": Prof. Thomas Engeman, of Loyola University of Chicago, argued that pioneers, cowboys, "hard-boiled" detectives, and Mad Max are Americanized, democratized versions of the Christian knights of medieval and renaissance literature. Diana Schaub, of Loyola College (the one in L.A.?), the designated respondent, argued that these "knight" characters get less chivalrous and less Christian the more Americanized they become; one sensed she had a beef with Prof. Engeman for having obliged her to watch all three Mad Max movies.
A foreign policy based on Founding principles: In the shadow of a possible war with Iraq, Prof. Thomas West, of the University of Dallas, parsed Locke's Second Treatise closely and found there a duty on the part of the state to protect the life, liberty, and property of its citizens (but not necessarily those of the people of other nations!), and a right in Sovereign Nation A to attack Sovereign Nation B not only when SN A is attacked by SN B, but also when SN B has a "known and settled" plan to violate the lives, liberties, or property of the citizens of SN A.
Congratulations to the Claremont Institute folks, and to the APSA for including them among its "related group" panel organizers.
:: David M. Wagner 11:48 AM [+] ::
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After teaching Seminole Tribe to my students, I resolved to try to figure out why The Man adheres to an 11th Am. jurisprudence that seems at odds with some of his interpretive principles. Here's what I come up with.
Turns out the fons et origo for Justice Scalia's views on how to interpret the 11th Am. is his dissent in Pennsylvania v. Union Gas, 491 U.S. 1 (1989), the decision that was overruled in Seminole Tribe.
There, he weighed in on issue that the plurality opinion of the Court left unresolved: whether or not to overrule Hans v. Louisiana, 134 U.S. 1 (1890), the case that held that the 11th Am. bars suits against non-consenting by in-staters, even though the text of the 11th speaks only of out-of-staters.
It's an audacious dissent, because it starts of disagreeing with Justice White on a statutory issue, rejecting White's reliance on legislative history. It then goes on to defend adherence to Hans -- based largely on the legislative history of the 11th Amendment!!
Well, with Justice Scalia, you know this is not just sloppy drafting. You know that this juxtaposition is designed to force us to ask: what's the difference in these two instances of legislative history?
One is that the legislative history of the 11th Amendment is not "canned," the way leg.hist. in Congress usually is (committee reports drafted by staffers under pressure from lobbyists, scripted floor exchanges, etc.) By contrast, the remarkable national outrage at the Supreme Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793), is clear evidence of a national legislative intent in the drafting and ratification of the 11th Amendment, the overarching purpose of which was to overrule Chisholm.
Now, granted, the 11th speaks only of state immunity against suit by out-of-staters. But the argument (as I understand it) is this: the Constitution, including the 11th Amendment, was drafted and ratified against a background of Common Law principles, including Common Law notions of sovereign immunity.
Of course, the people as sovereign legislator, in drafting the Constitution, are free to derogate from the Common Law. In Chisholm, the Court said the people had done so, big time, on the question of state sovereign immunity. Therefore, by enacting an amendment designed to make Chisholm go poof, the people, by clear implication, restored the previous doctrine of Common Law sovereign immunity that Chisholm had momentarily obscured.
Scalia's argument in Union Gas doesn't end there. So far, he has (I think) been trying more to explicate Hans than to state how Hans should have been decided as an original matter. He establishes that Hans is intelligible and defensible, not necessarily that it was correct.
Stare decisis and reliance interests take Scalia the rest of the way to his conclusion that Hans should not be overruled. He goes through the standard indicia of overrulability and finds that Hans does not qualify for the block: it is not obviously wrong, and it has generated considerable legal reliance interests (as distinct from personal lifestyle reliance interests, such as the Court referred to in Casey). So, we keep it.
I don't know if that's completely convincing, but there it is.
:: David M. Wagner 9:07 PM [+] ::
...
I'm not going to orate as I did on Owen: just consider everything I said there as incorporated by reference here, mutatis mutandis. (And BTW, one of the things to mutatis is the spelling of "Owen": I corrected it, but my archives have inexplicably reinserted the erroneous "s" at the end of her name.)
Then go read Stuart Buck and Byron York.
:: David M. Wagner 6:54 PM [+] ::
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Go here for an update on the student plagiarism problem. (Scroll down to post that begins "Eve Tushnet made her observations....") The Old Oligarch's observations deal with undergrads, but law students in courses requiring term papers should read them too. Especially the part about how the plagiarism-detection websites now available to professors.
:: David M. Wagner 1:48 PM [+] ::
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:: David M. Wagner 11:57 AM [+] ::
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The cite is Alan Wagner, "Windows Shopping," OPERA NEWS, October 2002, 38.
(I'm writing at home just now, away from my Blue Book, so someone correct me if I have not used the proper form for non-sequentially-numbered journals. And if there's a way to do large-and-small-caps in Blogger, please let me know.)
:: David M. Wagner 8:59 PM [+] ::
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It's generally a good piece, but I must reply to a few things that it is (as The Man once said in a much more important context) "beyond human nature to leave unanswered."
(USA TODAY in bold, me in plain type.)
He is especially critical of the middle-of-the-road reasoning of Justices Sandra Day O'Connor and Stephen Breyer. O'Connor, and to a lesser extent Breyer, have guided the court toward incremental changes in the law on issues ranging from abortion to crime and punishment. To them the law is fluid, the product of the specific facts of a case and evolving times.
Who elected "evolving times" to govern us, or the Justices of the Supreme Court to interpret "evolving times"? Article V is for "evolving times." The Court is for reading and applying the Constitution. Gaa, it's like talking to a brick wall.
Off the bench, the Catholic justice declared that any Catholic judge who wants to follow the church's stance against the death penalty, rather than legal precedent favoring it, should resign.
If the Church had a "stance against the death penalty," analogous to its teaching on abortion, as the article seems to imply, this hypothetical Catholic judge would be in a real bind. Read Evangelium Vitae -- not the whole thing, if you don't want to, but at least the capital punishment part. CP is specifically acknowledged to be potentially licit, though strongly discouraged. The Church's teaching on abortion is very different (something to do with the innocence of the killee).
Even so, Scalia is relatively young for a Supreme Court justice, and his influence could increase. With Republican George W. Bush in the White House and three justices (O'Connor, 72, Chief Justice William Rehnquist, 77, and John Paul Stevens, 82) possibly nearing the end of their tenures, Scalia eventually could be joined by other conservative appointees.
...Scalia's lack of influence on the court has led some analysts to speculate that his pointed opinions could be aimed as much at young lawyers who will be tomorrow's judges and attorneys general as they are at his colleagues.
All this grinning is giving me a headache.
Love him or hate him, students and scholars follow Scalia. That's partly because he's a wordsmith: He avoids legal jargon, and alternately quotes Shakespeare's Henry IV and the juvenile delinquents of West Side Story.
"People can actually understand his opinions," says Neal Devins, a law professor at the College of William and Mary in Williamsburg, Va. "Students remember Scalia opinions more than anyone else's."
Actually, he does use legal jargon, but in a way that shows sensitivity to English as well. The technical terms are all there, as many as necessary and no more, but with a flow that allows both lawyers and non-lawyers to follow his argument. Prof. Devins is exactly right.
But Georgetown University law professor Peter Rubin, president of the American Constitution Society, a nationwide group whose views are counter to Scalia's, says that "for all of his glibness, many students see that his vision is not faithful to the American tradition of respect for human rights and dignity."
One might expect to see "modern notions of" rather than "the American tradition of" in the above line. The claim as it stands is audacious.
Scalia has a reputation as the life of the party. He plays poker (sometimes with Rehnquist), sings and is a duck hunter. Scalia basks in his Italian heritage. He frequents the A.V. Ristorante Italiano in Washington, D.C.,
Darn tootin'. Best pasta in Our Nation's Capital!
taking anchovies on his pizza,
No joke? I started doing that too a little while back....
and once wrote to a reporter with whom he had sparred, "Nursing grudges is a very Sicilian vice, but ... not one of mine."
Oh, come, where's that old Rigoletto spirit? "Si vendetta, tremenda vendetta....!" (Just kidding, everyone.)
Before his appointment in 1986, Scalia had worked in the Nixon and Reagan administrations.
Nixon, not Reagan. He was Nixon's last AAG for OLC, holding that job during the impoundment controversy of 1974. And then in his dissent in Clinton v. NY he called Nixon "the Mahatma Gandhi of all impounders." Tee hee!
After he joined the high court, Scalia's aggressiveness irked some colleagues. He proved to be the opposite of Brennan: Rather than brokering compromises, Scalia fought over minutiae. It isn't unusual for him to join another justice's opinion, but to note that he doesn't agree with one paragraph.
Oh, sort of like footnote 6 in Michael H.?
Perhaps Scalia's most famous condemnation of O'Connor came in a 1989 abortion case, when he said her views "cannot be taken seriously."
And the way he cited Marbury there -- priceless! But "condemnation"? Come now. How about "critique of" or "dispute with"?
In 2000, when the court struck down Nebraska's ban on a midterm procedure it called "partial birth" abortion, Scalia's dissent again targeted O'Connor.
Kennedy, actually. That's because the dissent was aimed at those who thought the Casey compromise would allow for regulations such as the one struck down in Stenberg. That describes Justice Kennedy, not Justice O'Connor.
The pragmatic Breyer also is a regular foil of Scalia.
Except when they're together in an isolated dissent, as in Clinton v. New York.
During a forum at the University of Chicago last winter, he said that "the constitutionality of the death penalty is not a difficult, soul-wrenching question...."
Of course it isn't. The morality of the death penalty is a difficult, soul-wrenching question (to me, though not to Justice Scalia). The constitutionality of the death penalty is a real easy question. Or is everything that's immoral unconstitutional? Aren't you glad Justice Scalia doesn't think so?
The Rev. Robert Drinan, a Georgetown University law professor, says Scalia seems to adhere only to Catholic Church positions that match his conservative philosophy. Drinan calls Scalia's stance on executions "disappointing."
See reference to Evangelium Vitae, supra. I call the the Rev. Robert Drinan's casuistry disappointing.
(Yo, Father, hello! I used to attend your noon Mass at St. Joe's on the Hill from time to time!)
U.S. Appeals Court Judge Alex Kozinski is among the court observers who say Scalia is trying to influence the next generation while putting pressure on his colleagues. "The sheer power of his criticism forces legal thinkers to deal with his arguments," says Kozinski....
And deal they will.
:: David M. Wagner 4:40 PM [+] ::
...
And by the way, if law students stop blogging, it's because of us law professors. Bwa-ha-ha-ha-ha-ha-hah!!
:: David M. Wagner 2:58 PM [+] ::
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This post is first and foremost for the edification of my Regent Law colleagues, who asked me to post it. For other readers, please excuse the momentary divergence from constitutional law. If you like medieval history too, read on.
Cambridge historian/theologian Jonathan Riley-Smith (hereinafter JRS) is the world's leading authority on the Crusades. Besides The Oxford Illustrated History of the Crusades and A Short History of the Crusades, he has written particular studies of the demographics of the First Crusade, the idea of crusading, and the military orders.
Last week he was in our area as the Presidential Lecturer in History at Old Dominion University, Norfolk, Virginia. I had the honor of being asked to help host him thanks to Prof. Robert Holden, professor of history at ODU, and founder of the Tidewater Forum, an association of Hampton Roads-area Christian scholars.
In his public lecture on Sept. 12, JRS focused on the historiography of the Crusades in the past two centuries, and the impact of this historiography on mass movements. Among the things I learned (and any errors herein are mine alone):
* Saladin: This mediocre Crusade-era Muslim warrior was turned into a model of chivalry by Sir Walter Scott in his novel The Talisman. Scott, as both a medieval-nostalgist and a "lowlands Calvinist" (JRS's term), wanted to valorize the Crusades without also valorizing the Catholic Church. This agenda was eventually reflected in academic historiography in classic 4-volume History of the Crusades by Sir Steven Runciman -- another "lowlands Calvinist." The Talisman was widely translated and read, but not into Arabic. The transmission of the Saladin myth to the Muslim world was unwittingly carried out by Kaiser Wilhelm I when he made an ostentatious pilgrimage to the Levant, and build a monument to Saladin at his dilapidated tomb in Damascus. Today, Saladin is seen by radical Islamists as the very model of a Muslim major-general; Islamist pamphleteers commonly sign their works "Saladin." For centuries before the Kaiser's journey, JRS specifically noted, there is zero evidence of Muslims even knowing about Saladin, much less revering him. For that matter, he also insisted, there is no evidence that they had any consciousness of the Crusades at all until the late 19th century, despite their current claim to be heirs of nine hundred years of humiliation.
* Politically loaded uses of the term "Crusade": In France, the romantic royalism of the Restoration Era (1815-30) brought forth a school of Crusade historiography that aggressively valorized the Crusaders, the Church, and the French nobility. The historian Michaud is one of these writers. Several decades later, France and other European nations were using the Michaud view to justify imperialism. Today's Islamists -- who see all resistance to Islam, whether coming from Christians, capitalists, Israelis, or even Communists as "crusading" (yes, the Soviets in Afghanistan in the '80s were "Crusaders," you see, because they were fighting against Muslims) -- got this idea from the Michaud-influenced imperialists. They ought to stop, JRS says: "Crusading" is an identifiable movement -- a papally endorsed military pilgrimage -- and the term loses meaning when applied to virtually anything disliked by Islamists.
* The First Crusaders: From such of JRS's published work as I was able to peruse before meeting him, I learned that his computerized tab-keeping on individual Crusaders (enabling him and his graduate students to keep track of individual Crusaders who turn up at random intervals in the fragrementary sources) has shown that the First Crusaders were not, as commonly thought, ne'er-do-wells and useless third sons: they were often heads of families, people with something to lose. Their religious fervor may be totally alien to today's zeitgeist, but the notion that they didn't have any -- that it was only a cover for greed, etc. -- is, JRS believes, overthrown by the evidence.
* Women in the Crusades: In response to a question, JRS noted after his lecture that women played two roles in the Crusades. One was as actual Crusaders, much to the surprise of the Muslims. The other -- "infinitely" more significant, JRS says -- was as transmitters of Crusading culture within families. His tracking studies show that an individual male was much more likely to go on Crusade if his mother or wife came from a family with a Crusading tradition.
:: David M. Wagner 9:54 PM [+] ::
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...unknown, due to voting irregularities, and the apparent loser, Janet Reno, is planning a challenge! (Click here.)
Back to the salt-mines, Florida election officials -- and this time, make sure everyone's Equally Protected! (Sigh....)
:: David M. Wagner 10:51 AM [+] ::
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Interesting NRO piece here on Christian higher education, in which my law school is mentioned.
Just one quibble: author Naomi Schaefer appears to agree with the view that "many Christian scholars have grown 'weary' of the 'culture-wars mentality, led by spokesmen such as Jerry Falwell and Pat Robertson,' which pits the religious against the intellectuals."
Not sure just what that means, but, as the rest of the article makes pretty clear, the idea at Regent and elsewhere is to reclaim and deploy a rich Christian intellectual tradition. Any "pitting of the religious against the intellectuals" (I assume we're using "religious" here to mean "people of religious conviction and motivation") is being done by our critics, not by us. We believe there is "no dichotomy" here, and we're trying to prove it.
If the cited remark means that more Christian leaders are moving from an activist paradigm to an intellectual and academic one, well, it's good that that's happening, and it's good that NRO has reported it.
:: David M. Wagner 1:54 PM [+] ::
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First come, first served.
Jim Nickens writes:
Oh come on.........
1. She got a hearing and a vote in the committee, more than many Clinton nominees
got.
2. ABA ratings are routinely derided by GOP hacks when they don't suit their purposes, and embraced
when they are favorable.
3. The GOP called the game and set the stakes on judicial nominations. Now they want to complain when they lose.
4. She was nominated for her ideological purity. There is no compelling reason she shouldn't be rejected on that basis.
Numbers 1 and 4 rather bounce off each other, don't they? If there's no compelling reason why Democrats (or rather, the Democratic leadership and those on the Judiciary Committee) shouldn't reject Owen for ideological impurity, surely there's no reason to complain of similar treatment of (a few) Clinton nominees. (BTW, did Clinton ever, as a courtesy either to his predecessor or to an adverse Senate majority, re-nominate a judicial candidate who had been nominated by his predecessor but not confirmed? I'm thinking of the esteemed Judge Gregory of the 4th Circuit, who, I'm proud to add, will be helping to judge a national moot court competition here at Regent next February.) On the ABA etc., more below.
T. Karney writes:
Mr. Wagner,
I see a couple of problems with your arguements (I can't address the
question of whether or not a single one of the judges nominated in the 16
years of the three presidents you mentioned were held from the floor, I
have not the data, so I shall take it as read, but the claim is sweeping).
The first is that, while not a judge, an ambassador was refused hearing
on te floor (and IIRC refused a hearing in committee) because Sen. Helms
was offended, personally, by the man's admitted homosexuality.
So that knife cuts both ways.
I can't speak for Sen. Helms himself, but -- assuming the reference is to the case of Mr. James Hormel -- the gentleman in question provoked entirely unnecessary opposition to his candidacy, not by his homosexuality per se, nor by being "out," but by his close association with a group in San Francisco whose stock in trade was scabrous, blasphemous, in-your-face mockery of the Catholic Church and its belief system, which is (as anyone with manners knows) also mockery of those who belong to that church and adhere to that belief system. Mr. Hormel refused to disassociate himself from that group in any way, despite repeated invitations.
Perhaps Sen. Helms would have maintained his opposition to Mr. Hormel even if the latter had issued a televised apology on prime time to all who had been offended (including Masons such as Sen. Helms, as well as Catholics). But as this was very far from what happened, the Hormel case remains a problematic one by which to assess any Senator's confirmation habits.
As this may apply to Justice Owen -- if she were a dues-paying member of Operation Rescue, at the Patron level, we would have a remote analogy to l'affaire Hormel.
Second is the bruitingof the ABA evaluation of the Judge in question.
If the Office of the President need not consider the rating when
nominating, why need the Senate consider it when deciding.
Sauce for the goose is sauce for the gander.
Very true, and this is the reason why I avoided exclusive reliance on Justice Owen's ABA rating. But surely Justice Owen's opponents are out there balancing the other end of the see-sawing skewer on which I am impaled: if high ABA ratings are effective to give a pass to ideologically charged Clinton nominees, and if low or mixed ones give effective cover to opponents of ideologically charged GOP nominees, then we have the same inconsistency in reverse. What's sauce for the gander is sauce for the goose.
Mitchell J. Freedman writes:
Wasn't the seat that Owens was going to fill the subject of two previous
Clinton nominees who didn't even get a hearing by Republican Senators?
I don't know. It seems unlikely that Senate Republicans could have gotten up the gumption to block (by whatever means) not one but two nominees for the same vacancy. But it is possible. (See Joseph A. Miller infra for more about GOP treatment of Clinton nominees, etc.)
If one takes a look at the records of Clinton nominees, one sees very few
"ideologues," unlike Bush nominees from what I've seen. One would think by
Bush's nominees that he won in a landslide and thinks he had a "mandate."
How to escape -- and whether escape is possible -- from ideologically driven use of terms such as "ideological" is a wonderful subject for academic research. In Blogistan, I don't believe it can be done. The second point here is more easily addressed. Is there any clause in the Constitution that conditions the President's powers on the margin of his election (either electoral or popular)? If so, why was it not discovered following the 1980 election?
Unlike Daschle's rather silly comment, Leahy's comments were more honest and
ultimately more sensible. And I would add that since Bush lost the popular
vote to a candidate who had his most disagreement with Bush over judicial
philosophies, why should Bush get any different treatment than Clinton
received at the hands of Republican Senators? Painting Daschle as, say,
Trent Lott...I wish. He's usually Tom Docile from where I see things.
Since Daschle's remarks were a major focus of my post, Mr. Freedman and I have a zone of agreement on this. I didn't catch Sen. Leahy's remarks. If they were along the lines of "Hey, this is culture-war politics, and we have the votes -- deal with it," then he would have earned much grudging respect from me.
I agree, however, with your point that this battle between Reeps and Dems
over judicial nominations is one important consequence of politicizing
issues within the judiciary. But I agree with that point less than I would
have thought. In terms of judicial activism, Baker v. Carr has nothing on
the mystical 11th Amendment/States' rights jurisprudence of the Rehnquist 5.
We may be closer here than Mr. Freedman thinks. As I have already blogged here, the Court's recent 11th Amendment jurisprudence hangs on a thin thread, and requires preferring precedent over text in a most un-Scalian fashion. As this line of cases develops, along with criticisms of it, I predict it will be a recurring feature of this blog.
And if I recall constitutional history, in terms of political activism, the
late 19th Century Supreme Courts beat Warren and his buddies by a mile. The
late 19th Century courts grafted corporate capitalism into our Constitution,
ignored the import of the 14th Amendment, overturned laws left and sometimes
right, etc. Rehnquist's pals are getting close to the late 19th Century
guys, though, I must admit, at least in terms of overturning laws by
judicial decision/fiat.
Are things at the point where defenders of (some of) the work of the Rehnquist Court are assumed to be defenders of Lochner as well? This ignores a verifiable fact -- that since the 1960s, under the intellectual leadership of Judge Bork and Justice Scalia, conservative constitutionalists have nailed to their mast the declaration that judicial activism is wrong in all its forms, and that the pro-business judicial activism of the Gilded Age was just as bad -- and bad for the same reason -- as the forms of judicial activism that emerged in the '60s.
Chuck Cooper, AAG for OLC under Reagan, used anti-judicial-activism quotes from Justice Robert Jackson to express the Reagan Administration's judicial philosophy -- and Rehnquist, let us not forget, clerked for Jackson. Mr. Freedman is preaching to the choir, if not to the curia.
And last but by no means least, Joseph A. Miller writes:
Dr. Wagner:
Re your blog article on the Owens nomination and the supposed obstructionism of the Democrats: Is your article supposed to be a joke, especially in its references to the "fair procedure" and upright behavior of the Republicans when Clinton was President? Why don't you tell us how many of Clinton's nominations were deliberately stalled by the Republican majority, especially at the behest of Jesse Helms, rightfully called by David Broder "the last outright white racist in the Senate"? But I shouldn't be surprised--I've come to understand that "conservative activists" like you will continually lie through their teeth and distort the record to win--at any cost.
Actually, any good game of "He Started It: Judicial Nominations Version" would have to include the potential Reagan candidates who never even made it to the nomination stage, because as soon as the administration sent the names to the ABA for its confidential evaluation, the names also ended up on the desks of the liberal interest groups, who then -- out of urgent moral necessity, of course -- shared their concerns, and the names, with equally concerned members of the media. The would-be-nominees thereby became "controversial," or even "embattled," which are Washington media-speak for "dying" and "dead," respectively.
How the groups got the names remains a mystery. Personally, I'd say Colonel Mustard, with the candlestick.
By the way, tell your friend Scalia that constitutional government finds its ultimate support in popular sovereignty, not God. If there were no God whatsoever, a powerful and convincing case could still be made for democratic-republican government. People like you and Scalia are a true threat to our country's Constitutional system, and are willing to bend the law out of all recognition in order to impose their "moral" vision on all of us.
Actually, Justice Scalia has defended almost the exact view of the sources of legal legitimacy that you espouse -- and has taken heat for it from religious conservatives. What I think the latter fail to understand is that the Justice does not read God out of the process altogether, but holds rather that in a regime committed to representative democracy, such as ours, the democratically accountable lawmaking process is the ordinary means by which the natural law (whether conceived in divine or secular terms) is to be implemented. So the natural law will be implemented if -- but only if -- the people want it.
This rules out (at least for purposes of the American regime) two alternative means of applying natural law: (1) unmediated recourse to revelation (not a popular choice, even among the "religious right," if Mr. Miller will credit me as a makeshift spokesman for this diverse and amorphous movement); and (2) discernment and enforcement of natural law by judges (all too frequent, Justice Scalia would say).
Mr. Miller should learn to recognize his allies on the Court.
:: David M. Wagner 9:59 AM [+] ::
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It's hard to add anything to the Wall Street Journal's editorial yesterday. The reduction of judicial confirmation to brass-knuckles ideological combat is perhaps best illustrated by the fact that the leaders of the current Democratic Senate -- unlike those of the Democratic Senate faced by Reagan in his last two years and by Bush the First in all four years, and the Republican Senate faced by Clinton in all but his first two years -- hasn't even allowed the controversial nominees to get to the floor.
They can't afford to: said nominees would be confirmed (Senator Miller of Georgia would vote with the Republicans), and Democratic Senate leaders can't afford that. They can alienate their liberal base on some issues, but not on judges. Because, regrettably, this is where the nation's real political issues -- unlike the ones we pretend to be interested in during presidential elections -- get fought out.
It's an unavoidable feature of the Warren legacy: no issue is too political to be outside the scope of judicial resolution under the 14th Amendment (see Baker v. Carr); indeed, perhaps the more politically charged it is, the more it needs judicial resolution (see Casey). So we have presidential and congressional elections over pot-hole issues, the great questions get judicialized, and the only politics that matters -- the only politics that deals with what human nature is and what the best regime is -- is fought out behind the scenes in the judicial appointment/confirmation process.
And since this is the only politics in which ultimate issues are implicated, it cannot suffer compromises. If "we" have the votes to kill "their" nominees on the floor, we'll send them to the floor. If not, we'll kill them in committee, even though this was not done even in the '80s or '90s, which were not exactly eras of peace and good will on the judicial appointment front. Whatever it takes.
The Washington Post's reporting was actually fair on this one, noting that Justice Owen received the highest possible rating from the ABA (though bracketing this information as a Republican talking point). Then comes Daschle: "I should say the message is this: We will confirm qualified judges. We've already confirmed 73 circuit and district court judges. Don't send us unqualified people."
It is to laugh.
Republicans, and others still caught up in antiquated notions of fair procedure that date from before scorched-earth politics came to the judicial nomination arena, stand aghast at someone entrusted with high political office labelling as "unqualified" a jurist of Justice Owen's standing, as measured in part, but by no means exclusively, by her triple-A ABA rating.
Indeed, who can tell whether there's still a human Thomas Daschle under there, who has difficulty looking at himself in the mirror. It doesn't matter. His party, sitting atop a rafer-thin Senate majority, has lost the confidence of many of its formerly reliable coalition members. He cannot afford to alienate coalition members who are still solidly in the party's camp. That includes the organized cultural Left, whose number one concern is the courts.
:: David M. Wagner 6:41 PM [+] ::
...
That is, the American Political Science Association, and its annual conference, recently completed, in Boston.
First, I was very pleased at how my own paper "Civil Blood: the Political Science of Romeo and Juliet" was received. It was part of a panel called "Shakespearean Warriors," sponsored by the Claremont Institute.
For those of you who haven't made its acquaintance, Clarement is a wonderful think-tank out in California, centered around the "West Coast Straussianism" of Prof. Harry Jaffa. It is primarily interested in the American founding, seen as embodying certain permanent principles. In what I may call the Claremont view, the American founding borrowed judiciously both from the Enlightenment and from the Christian and classical traditions, and came up with a synthesis that was eventually undermined by the Progressive movement of the late 19th century.
Different schools of conservative thought locate the "original sin" of the USA at different points. Some Christian trads, especially Catholics of the Bozell school, see it in the (oft-exaggerated) "deism of the Founders." Southern conservatives see it in the triumph of industrialism and the defeat of localism in the Civil War, or even in the failure of the (mis-named) Anti-Federalists to prevent the adoption of the Constitution. Claremonters see it in the explicit rejection of 1780's constitutionalism by Woodrow Wilson, Frank Goodnow, Herbert Croly, and other theorists of the Progressive movement.
You'll notice I've declined to select a personal favorite among these views. I'll take my stand on this, though: Claremont puts on the best panels at APSA conferences. Besides the one at which I spoke, Claremont held panels on:
Ancient and modern views of property. Here, Prof. Jackson Barlow of Juniata College took issue with those who read Cicero as a proto-Lockean: Cicero defended property not as a natural right of individuals but as part of a Rome's balanced constitution; i.e. emphasizing the public good that comes from the institution of property, rather than the private goods of owners. Prof. Eric Claeys, a former Rehnquist clerk now teaching at St. Louis University Law School, argued that Founding-era concepts of property had environmental concerns (as we would call them today) built into them.
The American version of the "knight": Prof. Thomas Engeman, of Loyola University of Chicago, argued that pioneers, cowboys, "hard-boiled" detectives, and Mad Max are Americanized, democratized versions of the Christian knights of medieval and renaissance literature. Diana Schaub, of Loyola College (the one in L.A.?), the designated respondent, argued that these "knight" characters get less chivalrous and less Christian the more Americanized they become; one sensed she had a beef with Prof. Engeman for having obliged her to watch all three Mad Max movies.
A foreign policy based on Founding principles: In the shadow of a possible war with Iraq, Prof. Thomas West, of the University of Dallas, parsed Locke's Second Treatise closely and found there a duty on the part of the state to protect the life, liberty, and property of its citizens (but not necessarily those of the people of other nations!), and a right in Sovereign Nation A to attack Sovereign Nation B not only when SN A is attacked by SN B, but also when SN B has a "known and settled" plan to violate the lives, liberties, or property of the citizens of SN A.
Congratulations to the Claremont Institute folks, and to the APSA for including them among its "related group" panel organizers.
:: David M. Wagner 11:48 AM [+] ::
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