:: welcome to


:: 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 ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Monday, May 17, 2010 ::
    So let's see: state courts can't lock up juvenile armed robbers for life, b/c SCOTUS imagines the 8th Am says they can't; yet Congress can lock up "dangerous" people civilly (i.e. w/o criminal justice protections for the accused), b/c SCOTUS imagines Art. I says it can.

    Nice day's work.

    While all the media attention today and tomorrow will probably be given over to the Court's amazing power-grab in Graham v. Florida ("death is different" no longer: now life imprisonment is different too, and the Court's power to use the Eighth Amendment to enact its moral hunches about proportionate punishment into law is unrestricted), I'd say the real news is U.S. v. Comstock, in which the Court construes the Necessary and Proper Clause as allowing federal civil commitment of a "mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released."

    (I express no opinion here on the propriety of life sentences w/o parole for juvenile armed robbers, only on whether the 8th Amendment authorizes the Supreme Court to rewrite penal codes from time to time to conform to its own sense of "evolving" moral norms. It obviously authorizes no such democracy-subverting notion.)

    It's Big Dissent Day for Justice Thomas. Besides taking down the Court's philosopher-kingship in Graham, he took on the task as well of pointing out the gap between the classic McCulloch-v.-Md.-type construction of the N&P Clause and the expansion of that clause carried out today. Justice Alito concurred separately with the majority, but even in so doing, expressed concern about the breadth of its holding and agreement with the dissent's concerns.

    Alarmingly, Chief Justice Roberts formed part of Justice Breyer's big-government majority in Comstock. So of course did Justices Sotomayor and Stevens, and there's every reason to think Kagan would have as well.

    Meanwhile everyone's in a dither over what Lady Kaga thinks, or whether she, you know, is or isn't. Replacing Stevens, she'll press the reset button (from age 90 to age 50) on a SCOTUS seat that's been shredding the Constitution for years. By all means, "constitutionalist" Senators, vote against her, and (in case you defeat her) against the dozen or so identical nominees this administration will send up in its remaining two years until that seat is filled.

    Then maybe we can get us a nice Republican president who will send up nominees like Roberts and Alito who -- oh, right....

    :: David M. Wagner 1:05 PM [+] ::
    :: Wednesday, May 12, 2010 ::
    Manhattan Institute's James Copland argues that a conservative-tolerant law-school dean easily morphs into a leftist judge.

    Copland also alludes to Kagan's poor performance right "out of the gate" in her first case before the Court, the Citizens United 1st Amendment case, argued last summer and decided last January, where her side lost, and for which President Obama gave the Justices present at his first SOTU an unprecedented public rebuke. Here is a post that includes the bit of oral argument that shows Kagan decisively un-impressing Scalia and (perhaps more signficantly) Kennedy. (H/t: Regent colleague Prof. Jim Duane)

    :: David M. Wagner 12:56 PM [+] ::
    Is Kagan anti-military? The charge may actually hold up. See Bill Kristol's piece on this here, and links therein.

    :: David M. Wagner 12:25 PM [+] ::
    Kagan: government power, not executive power (Lawrence Lessig wouldn't lie!)

    Day 3 of the Kagan debate seems to have shifted from her hardscrabble upbringing on the Upper West Side and the one-room schoolhouse at the elite Hunter College High School, a scholarship-only high school on the Upper East Side (those daily crosstown bus rides, omg!), plus the academic pressure of Princeton and Harvard Law -- all "real Americans" can relate to that -- seems to have shifted, as I said, to what views, exactly, she holds on executive power.

    Here is Professor Lawrence Lessig, assuring us that Kagan doesn't believe in executive power: she believes in federal government power in general, so you see, liberals need not worry. In the course of the piece (esp. where he quote from his own Maddow interview), he mangles -- imho -- the concept the unitary executive. Liberals frequently interpret "unitary" as "dictatorial." In fact it means, um, well, unitary, non-plural, rejecting the concept of an executive committee or of executive authority divided the way federal legislative authority is divided.

    Here is Lessig in his HuffPo piece:
    The distinction is between lawyers like Kagan who believe the president has broad power to control the executive branch because Congress (directly or indirectly) gave him that power, and others like Cheney who believe the president has broad power to control the executive branch because the Constitution (directly or indirectly) gave him that power. The critical word here is "broad": Everyone agrees that there is a core of executive authority that the constitution has vested in the president exclusively. The debate is how broadly that core extends.

    The difference between these two positions is critical. If you believe the Constitution gives the president absolute control over the administration, then there's nothing that Congress can do about it. But if you believe that it is Congress who has given the president this power, then Congress can take away what it has given.

    There is no ambiguity about what Kagan believes in this respect. As she wrote in her important 2001 piece, "Congress may limit the President's capacity to direct administrative officials... If Congress ... has stated its intent with respect to Presidential involvement, then that is the end of the matter." [Ellipses in original]
    But the Constitution doesn't say anything about a "core" of executive power, with executive power outside the "core" presumably subject to re-assignment by Congress. Art. II declares "vested" in the President "the executive power," which includes the power and duty "to take care that the laws be faithfully executed." Congress can control the President -- by changing the laws that it is the President's duty to execute. But not by isolating the President from some designated segment of the take-care duty and assigning that segment somewhere else.

    But I digress: that's what the Constitution says. We were talking about what Elana Kagan believes.

    It certainly seems that Kagan's views on executive power should alarm conservatives, not liberals. What some liberals take to be her expansive views on executive power are actually expansive views on federal power as a whole. Executive power as a subset of federal power, however, she deems to exist at the whim of Congress, contrary to constitutional text and discoverable original intent (the unitary executive having been chosen, over alternatives, by the Philadelphia Convention -- not "invented" by Ronald Reagan or Steve Calabresi).

    :: David M. Wagner 10:16 AM [+] ::
    :: Tuesday, May 11, 2010 ::
    Walter Olson on Kagan nomination as "revenge of the grinds," i.e. the Ivy-League grade-grubber -- the "organization kids."

    So strange that the Obamalama dingdongs would keep on playing the "common touch"/"empathy" theme. Yep, Manhattan's ultra-arty Upper West Side, then Princeton, then Harvard Law School, then the corridors of national power. Sounds like the "common touch" to me! Take that, Pinpoint, Ga.! They'll be weepin' in the aisles!

    :: David M. Wagner 6:51 PM [+] ::
    Kagan and the HLS military recruiting policy:

    Her predecessor as Dean, Robert Clark, defends her in the WSJ. Weekly Standard editor (and former Harvard College poli sci prof) Bill Kristol deconstructs Clark's defense here.

    :: David M. Wagner 6:17 PM [+] ::
    Harvard Law and former SG Prof. Charles Fried evaluates Kagan's time as HLS Dean. Conclusion: she was hospitable to conservatives and welcomed them -- and lefties too -- to the faculty; but in the final analysis, "her heart beats on the left."

    Glenn Greenwald at Salon continues to speak for the never-say-die anti-Kagan left.

    :: David M. Wagner 6:06 PM [+] ::
    Prof. Robert P. George's very interesting declaration on the Kagan nomination. Note that he believes she should and must explicitly answer questions about hot-button issues. Normally I would not agree, but Prof. George grounds his demand in specific demands that Kagan has made of other nominees (perhaps referring to this). Complete text of Prof. George's statement.
    In Elena Kagan, President Obama has nominated a person of great intellectual attainment, and unquestioned personal integrity. In these important respects, she is a nominee much in the mode of both nominees of the President's predecessor, George W. Bush, namely: John Roberts and Samuel Alito. There are some who argue that intellectual ability and personal probity are sufficient qualifications for someone to serve on the Supreme Court of the United States. President Obama disagrees with that position, and I believe he is right to reject it. In explaining his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, then-Senator Obama explained that a suitable justice must have a sound view of the role of the courts in our Constitutional system. Again, I agree.

    Where I believe President Obama errs is in his view of the proper role of the courts. In envisaging courts as agents of social change unconstrained by the text, logic, structure, and original understanding of the Constitution, he misunderstands the important but limited role of judges in our constitutional system. The judicial office is not a license for jurists to usurp the authority of legislators, or impose on the nation their preferred ideas about social justice or personal rights. When judges do that, in the name of a right to abortion, for example, or to redefine marriage or drive religion from public life, they betray the Constitution in whose name they purport to act.

    So, Solicitor General Kagan's nomination to the Supreme Court provides an important opportunity for a national conversation on the proper role of the judiciary in our system of democratic republican government. Senators, in particular, should follow the President's lead and advice in questioning the nominee closely about her view of the role of judges, and oppose confirmation if they find that she espouses a view contrary to the one they believe to be proper under the Constitution. To this end, as Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life. For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents.

    Because I know Solicitor General Kagan to be a person of integrity, I do not expect her to attempt to evade questions whose legitimacy she affirmed when the nominees of previous presidents were under consideration. Moreover, with an overwhelming Democratic majority in the United States Senate at the moment, her candor would be unlikely to place her confirmation in jeopardy.

    As Dean of Harvard Law School, Kagan's openness toward the serious engagement of competing points of view led to discussions that enriched the intellectual life of the community she served. By making possible a serious discussion of the vital question of the role of courts in our constitutional system she is in a position to confer an equally-valuable gift on the nation.

    This is no time for her to go silent.

    :: David M. Wagner 5:42 PM [+] ::
    :: Monday, May 10, 2010 ::
    ACLJ statement on Kagan

    I'm glad this statement called attention to her lack of judicial experience without calling this a disqualifier. After all (as Jordan Sekulow pointed out on the air -- gosh, my students are smart!), Rehnquist was in the same boat. More experience over-all, but not by a crushing margin. If a Republican president sent up a conservative nominee with Kagan's level of experience, I would not accept inexperience as an argument for disqualification; ergo, no way will I do so here.

    She is also a low-paper-trail candidate, b/c her scholarship record is thin and bland, and her advocacy record consists almost entirely of cases where she can plausibly argue that she was merely "advocating" for her "client," the government. (Though see previous post, where I noted, per Ed Whelan, that her office's subtle undermining of DOMA, which it was nominally defending, was unnecessary and probably significant.)

    Jordan Sekulow was absolutely right when he Tweeted that the notion that Kagan will be less liberal than Stevens is sheer spin: the legal left has drifted further left since 1975, and Kagan will be seen to have drifted with it, and to drift with it further. This is true, however, of almost anyone Obama would conceivably have appointed. If Republicans want to make an issue of it in this election year, draw the process out, and then make Obama re-think his SCOTUS politics in the face of a very different Senate next year, well, that would certainly be interesting.

    The Federalist Society has a grab-bag of Kagan resources here.

    :: David M. Wagner 12:23 PM [+] ::
    :: Sunday, May 09, 2010 ::
    Looks like it will be Kagan

    I haven't been blogging about Stevens or his replacement, because Stevens's retirement just wasn't news by the time it was announced, and as for the choice of replacement -- meh, one liberal will replace another; the UK election (about which I Tweeted a lot; see left margin) was much more exciting.

    I'm glad that confirmation politics is no longer a one-sided battle, the way it was in the 1980s, with leftwing organizations engaged in it, and conservatives passively relying on the good faith of the system, with only Pat McGuigan or Tom Jipping to write a few op-eds. Yes, it's good for conservatism that there are now rightwing groups out there who will oppose any Democratic nominee just as vigorously and just as brainlessly as Ralph Neas, Nan Aron, Ricki Seidman, and their friends will/would attack any Republican nominee (though hopefully not stooping to the same tactics; that's a ref to Anita Hill, natch).

    But the fact is, a liberal Democratic president is going to appoint liberal Democratic nominees. The only interesting division, it seems to me, is between those who should properly be seen on the right as initiating the nomination equivalent of World War III, and those who maybe should not. Just as an illustration of what I mean, resources spent opposing Justice So-So were resources wasted; I mean, it's not like the lady is going to be a major influence.

    So, among the names floated this time around, were any of them World War III? Yes, at least one: Diana Wood, described at the Huffington Post as "widely regarded as the most progressive member of Obama's short list." And a former Blackmun clerk. I trust former Marshall clerks more: he didn't, as far as we know, extract a specific loyalty oath to the cause of abortion. (Scheidler v. NOW, an opinion by Wood for a unanimous 7th Cir. panel found that RICO applied to pro-life protestors; this holding was reversed 8-1 by the Supreme Court.)

    Merrick Garland would be a more confirmable choice. To go quickly over the also-rans: Jennifer Granholm, as a prominent pro-abortion Catholic, would have been a World War III choice; JNap would have been opposed by both left and right; Leah Ward should have been looked at more seriously; Sidney Thomas was a "WW3" who was probably only floated to assuage some western Senators' egos (the way Republican presidents used to float Roger Miner to soothe Al D'Amato, and William Wilkins to give Strom a smile); and Hillary was a joke all along.

    Now, since the President appears to be going with Elana Kagan -- a former Thurgood Marshall clerk who would be the first sitting Solicitor General since Marshall to be appointed to the Court -- the question arises, is she a World War III nominee?

    Not -- yet.

    Oh, she's an ideological liberal, no doubt about it, but in a Washington Post way, not a New York Times way. The NYT recognizes conservatives' existence but treats them as a something between a joke and an oil-spill: ha ha aren't they silly, and omg what are we going to do about them? The WPost, no less liberal than the NYTimes in its editorials and in its reporting bias, nonetheless recognizes conservatives as the opposite team in a game in which more than one player can legitimately exist.

    Since I'm reviewing SCOTUS nominees and not newspapers, I'll stop the newspaper comparison here and explain why I think Kagan is more Posty, which is better than being Timesy.

    I met her once at a Federalist Society conference (points right there for appearing at one). It was on executive power, and was held early in the W years. Kagan had served in the Clinton admin. She told the conference how, when she got the invite, she said, "Executive power. We're against that now, right?" Laughter. Good laugh line. Perspective. And incidentally, in representing the executive branch before the Court as SG, she has not been at all behindhand, as I read the oral argument transcripts.

    What else? Many on the left have taken considerable time and effort to try and knock her down. Is this b/c they really see a Kagan nomination as "their Souter," or is Cornell Law Prof. and blogger William A. Jacobson right in speculating that all this is "simply bait so that Kagan will appear more moderate?"

    Next, if Kagan really is "the next Harriet Miers," it will be interesting to see a Democratic president wrap himself around that particular axle.

    So on the World War III question, why "not yet" rather than no? Well, read Ed Whelan's careful analysis of DOJ's brief filed last August in a case challenging DOMA, a brief from the SG's office that is unsigned but could not have been filed without SG Kagan's consent. It fulfills, narrowly and reluctantly, DOJ's generally-accepted duty to defend federal law -- but it also introduced, quite gratuitously, policy and constitutional arguments against DOMA. Senators may legitimately raise the serious possibility that she is a stealth nominee on, how to put it, "gay-related issues," which, thanks to Ted Olson's putting the people of California on trial for making his clients cry, may soon be hurtling toward the Supreme Court.

    We know that far more Senators voted for DOMA than actually believe in it; that's a given. But the same political prostitution whereby they voted for it in the first place -- and have so far deep-sixed all efforts to repeal it, depite a lopsided Democratic majority and a president supporting repeal -- will also make it hard for them to repeal it indirectly by confirming a DOMA-seeking missile to the Supreme Court. Nor to mention setting the stage for nationwide same-sex marriage under color of equal protection jurisprudence. Seriously -- if the Kagan nomination becomes a proxy vote on these issues, which of them -- Mitch McConnell or Harry Reid -- is going to happier that this nomination took place in an election year?

    So let the games commence. I hope this makes up for my long silence.

    :: David M. Wagner 10:54 PM [+] ::
    :: Tuesday, May 04, 2010 ::
    Regent to showcase 15 student films

    :: David M. Wagner 8:02 PM [+] ::
    :: Monday, May 03, 2010 ::
    Daily Telegraph (London): "Christian preacher arrested for saying homosexuality is a sin"

    Had to be, see:
    Police officers are alleging that he made the remark in a voice loud enough to be overheard by others
    What is society supposed to do with preachers like that?

    Was the preacher, Dale McAlpine, a Westboro-Baptist-type lowlife? Here's his narrative: you be the judge.
    Mr McAlpine was handing out leaflets explaining the Ten Commandments or offering a “ticket to heaven” with a church colleague on April 20, when a woman came up and engaged him in a debate about his faith.

    During the exchange, he says he quietly listed homosexuality among a number of sins referred to in 1 Corinthians, including blasphemy, fornication, adultery and drunkenness.

    After the woman walked away, she was approached by a PCSO [that's Police Community Service Officer, for those who haven't yet learned UK Newspeak] who spoke with her briefly and then walked over to Mr McAlpine and told him a complaint had been made, and that he could be arrested for using racist or homophobic language.
    Result (so far -- trial and possible sentence are still pending):
    Three regular uniformed police officers arrived during [McAlpine's] address, arrested Mr McAlpine and put him in the back of a police van.

    At the station, he was told to empty his pockets and his mobile telephone, belt and shoes were confiscated. Police took fingerprints, a palm print, a retina scan and a DNA swab.

    He was later interviewed, charged under Sections 5 (1) and (6) of the Public Order Act and released on bail on the condition that he did not preach in public.
    On that last bit, cf. Acts 4:17-18 and 5:40.

    :: David M. Wagner 6:03 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?