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October 9, 2006

Project Posner ::
legal — tagged , , and
10:00 am

Reading Boing Boing this morning, I came across a post about Project Posner, a searchable database of all of Judge Posner’s opinions dating back to when he first started his job at the Seventh Circuit Court of Appeals back in 1981. According to the site’s About page:

While Posner’s books and popular writings are easily available to the public, his opinions are difficult or expensive for the public to access, let alone search. This site, for the first time, collects almost all of his opinions in a single searchable and easily readable database.

So it has just as much to do with freely accessible information as it does with legal geekery. My kind of site!

But in all seriousness, Judge Posner is one of the few icons out there whose ideas I find off the wall and crazy (remember that time he tried to apply his Law and Economics theory to criminal law?) but whose opinions I deeply respect. Plus he exudes a confidence in his legal writing that I can only hope to one day begin to approach.

October 1, 2006

A serious downside to judicial elections ::
legal — tagged , and
8:55 am

There are some things you never want to hear a judge—much less a state supreme court justice—utter. I think this line takes it:

Even sitting justices have started to question the current system. “I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,” said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court. “Everyone interested in contributing has very specific interests.”

From the New York Times: Campaign Cash Mirrors a High Court’s Rulings.

February 1, 2006

The truth about Alito? ::
legal — tagged , , , and
4:35 pm

Fafblog’s take on the Alito confirmation is, well, unique.

[N]o longer a creature of flesh and bone, Alito has been reborn as lifelong Justice of the Supreme Court, a pure and ethereal conduit of the Constitution. Even as we speak he is being anointed by his fellow jurisprudents in the Supreme Court Building, where he will bodily ascend into the empyreal Tenth Sphere of the Law to commune with the wraithlike, undead spirits of the Framers to perfectly comprehend the true meaning of the Constitution before passing through the eye of a black hole to become the Star Child.

Oh, if only we learned about this in Con Law.

January 31, 2006

Roe: when developments happen, they will happen quickly ::
legal — tagged , , , and
8:56 pm

For all you Due Process/abortion law people out there, here comes an interesting piece over at SCOTUSBlog about the a possible change in abortion law in the near future. The issue involves the 2003 Partial Birth Abortion Act, which the Ninth Circuit enjoined the federal government from enforcing. Although under current law it is no surprise the law was struck down. But what’s interesting (and also scary, if you support the protections of Roe) is that things could turn out substantially differently if the case winds up before the Supreme Court.

With a new Justice, Samuel A. Alito, Jr., on the Court, a majority might be assembled to reexamine that core question, and thus to revisit the 2000 decision in Stenberg v. Carhart striking down a state-level “partial-birth” ban. That was decided on a 5-4 vote, with Alito’s predecessor, Justice Sandra Day O’Connor, in the majority.

I make no predictions on who will vote how on such a case. In fact, I won’t even wager to guess whether the Court will decide to hear the case. But in the event that they do decide to hear the case, we could very well be dealing with a different legal landscape when it comes to Abortion law, not to mention the right to privacy generally.

January 30, 2006

Bloviate ::
politics — tagged , , and
6:37 pm

Jessamyn noted in my previous post about the Alito confirmation that both New Donkey and Bull Moose use the word “bloviate” in their posts. I hadn’t made the connection myself, so it was more than a little weird when she called my attention to it. (My first instinct was that I screwed up and just posted the same pullquote twice—thankfully that wasn’t the case.) Anyway, I was curious to get a more precise definition, and found this from Dictionary.com word of the day: “[t]o speak or write at length in a pompous or boastful manner.”

That pretty much sums up what I was saying before, I think.

But what’s the real problem? ::
politics — tagged , , and
10:46 am

I have to admit, I came late to the Alito debate. Mostly it was because the one time I turned on the hearings was the point at which Joe Biden donned a Princeton hat and took his alotted time not to talk about any substantive issues regarding the Alito hearing, but mostly—as near as I can tell—to hear himself talk. Overall it sounds like the hearings generally went the same way. Both sides created a caricature of the type of Jurist Alito has been over the past fifteen years, and then used that caricature to either hold him up or tear him down. But at the end of it all, no one really had a serious discussion about him and overall the hearings seemed to be a profound waste of time. Also, as a result of the hearings, it seems that Democrats and Republicans are coming out on two extremes on Alito’s confirmation. On the one hand, he should be confirmed without a fight (so say the Republicans) and on the other, Alito should be filibustered (see the arguments made by Democrats).

With that being the prevailing argument, it’s interesting to see what the centrist bloggers are writing about the who confirmation fight. For example, New Donkey argues:

If we are to have a filibuster, let it be one that is short on senatorial bloviation, and long on clear and concise persuasion. And if nothing else, maybe the debate will complicate Bush’s State of the Union Address.

It’s a nice idea, but if the actual confirmation hearings were any indicator, then the Democrats are in no position to start having such an argument. The Bull Moose makes the astute observation:

Here’s a useful rule of thumb when judging the political effectiveness of a nomination fight – have you come off worse than the nominee? And in the case of Alito, this is not even a close call. The Democratic opposition presented themselves as badgering, bloviating, politically correct, elitist, unattractive obstructionists. And the nominee comes off smelling like roses.

That suggests that the Democrats are going to have to reverse course in a pretty serious way if they are going to make a serious, substantive challenge to the Alito confirmation that we Americans, who don’t pay much attention to what goes on in the courts and who likely distrust what the third branch is doing, find palatable.

But there is a larger problem here, which isn’t about what Alito might do if he is confirmed, but rather, what the Senate has already done in the hearings. If you’re like me and think the Senate should take a more nuanced approach to governance, and to avoid such extreme, polemic arguments as the ones we saw with Alito, then it seems that they failed in their responsibility in a pretty serious way.

January 19, 2006

New Republic comes out against Alito ::
legal — tagged , , , and
5:12 pm

In this week’s editorial (which requires a free registration—sorry), the New Republic came out against Alito’s confirmation. Here’s a conclusory passage:

Although the decision is not easy, our concerns about Alito’s lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now.

TNR, it should be noted, gave a cautious nod to Chief Justice Robert’s nomination last year. Also, the editors’ reasons for opposition do not simply echo the cries of the special interest groups. Rather, they argue that Alito should be opposed because his philosophy could threaten the political center of this country. Really, it’s one of the more thoughtful opposition pieces I’ve read in some time, and worth checking out even if you don’t agree with it.

January 17, 2006

Hypocrisy of the day? ::
legal — tagged , , , and
6:33 pm

Legal Fiction nailed the same point of hypocrisy I noted after reading Scalia’s dissent in Gonzales v. Oregon, handed down today:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality—for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

Scalia, of course, had no problem striking down provisions of the Violence Against Women Act that he, along with four other members of the Court, found to be outside Congress’ commerce clause power. He doesn’t explain why, in his view, Congress can exercise a certain moral authority in this case, but could not in that previous one. Such a distinction without explanation suggests that his decision was based on the nature of the law rather than the constitutional principle at stake. Ah, well.

Update: What’s particularly interesting about the Scalia dissent is that we’re not even dealing with a federal law passed by Congress. Rather, the “law” in question is an interpretive rule established by the Justice Department while John Ashcroft was Attorney General. So here here we’re not even dealing with a law that was subject to the check of open democratic debate. For a “conservative” justice who suppsosedly believes in the power of states, shouldn’t such an administrative rule, which so substantially cuts back on state power, be viewed with even more skepticism than a law passed by Congress?

January 16, 2006

Supreme Court nominations: a history of public hearings? ::
legal — tagged , , and
2:51 pm

By way of How Appealing comes this recent CRS report (PDF) on the history of presidential nominations to the U.S. Supreme Court and Senate action on those nominations. What’s interesting is the treatment report’s discussion of the advent of public hearings staged by the Judiciary Committee:

In 1916, for the first time, the committee held open confirmation hearings on a Supreme Court nomination—that of Louis D. Brandeis to be an Associate Justice—at which outside witnesses (but not the nominee) testified. More days of public hearings (19) were held on the Brandeis nomination than on any Supreme Court nomination since. The Brandeis hearings, however, did not set immediately into place a new policy of open confirmation hearings for Supreme Court nominations, since each of the next six nominations (during the years 1916 to1923) was either considered directly by the Senate, without referral to the Judiciary Committee, or was acted on by the committee without the holding of confirmation hearings.

Kind of interesting. During an earlier discussion with someone at school, I’d heard that the Senate hadn’t implemented the public hearing procedure until the Court handed down the Brown decision in 1954. I guess that was discussion was inaccurate. But even more interesting is the question of why the Senate decided to start having public hearings. Tied with that question is the more specific question of why the Senate decided to have public hearings—and very extensive ones—for Brandeis. The report doesn’t address those questions, since they’re likely fraught with political observations. But if you have any suggestions, I’d love to hear them—drop an email at gregATpageswithinDOTcom?

January 14, 2006

Cashman update ::
legal — tagged , , , , and
3:45 pm

Regarding my previous post on Judge Cashman: two articles of interest, both found on Sentencing Law and Policy:

Interestingly enough, in the second article Representative Kainen made effectively the same argument I did in my previous post. Though I felt pretty comfortable making the arguments I did, it’s always nice to receive some validation.

Also, in an earlier post, Sentencing Law and Policy makes this good point about the inherent contradiction in the Libertarian/Conservative reaction to light sentencing:

I am always amazed to see a purportedly libertarian/conservative crowd show no real concerns about the problems of over-incarceration. By my lights (and also, I think, Justice Scalia’s as evidenced by his decision in Blakely), one of the greatest threats to liberty and freedom is the government having broad powers to lock people in small cages for very long periods of time. I am often disappointed that those who claim to champion liberty and small government are not leading campaigns against excessive punishments. Perhaps I should do a post entitled, “Why people are skeptical of libertarian/conservative concerns about liberty/freedom/small government.”

Judge Cashman ::
legal — tagged , , , , and
2:31 pm

So, the whole controversy surrounding Vermont District Judge Cashman’s sentencing a sex offender to 60 days in prison has totally slipped under my radar, since I’ve spent the past three days getting acclimated to the new semester at school. But already it’s become clear to me that the real story here is not the sentence that Judge Cashman imposed, or his supposed statement to the effect that he no longer believes that punishment works. Rather, the real story here is that sloppy reporting has led to a public uproar and has effectively created a story out of something that is not actually a story at all.

The idea that any judge anywhere would make a statement as brazenly anti-punishment as “I discovered it accomplishes nothing of value[; i]t doesn’t make anything better” was just too off the charts to accept. Jessamyn astutely observed, anyone who would think that wouldn’t be a judge. So to better understand what actually did happen, I thought there might be some subsequent articles out there worth reading.

Rama Schneider, over at the Times Argus blog, pointed out that the Judge Cashman’s statement, which initially caused all the uproar, was actually quite ambiguous. For example, when the judge says “it doesn’t make anything better,” we can’t tell from the quoted text what “it” refers to. It could be punishment, or it could be something else not included in the pulled text. So it seems that it would help to see what the initial transcript was all about.

Enter the AP, which ran a not-quite-a-retraction story today, in which they state in no uncertain terms that the hearing transcript show that Cashman did not say he did not believe in punishment. Rather, Cashman “said a sentence of lengthy jail time with no rehabilitation was the opposite of what the Legislature wanted. ‘They do not want traditional sit-in-the-jail-and-do-nothing sentences[.]’” That sounds a lot more tempered than the initial stories suggested. And my guess is that, while it might be a somewhat non-traditional sentencing decision, it is still a reasonable one, and probably not one that is actually worth telling. Unless, that is, your real interest is to start a public outcry.

August 19, 2005

John Roberts and Brian Burgess — what do they mean for Vermont? ::
legal — tagged , , , , , and
11:15 am

Substituting for Peter Freyne on Seven Days’ Inside Track column, Cheryl Hannah (a VLS professor) soberly discusses the effect that a John Roberts confirmation would have on a Woman’s right to abortion. She also connects the changing makeup of the United States Supreme Court to the new appointment of Brian Burgess to the Vermont Supreme Court. Hannah notes that although Vermont has its own state Supreme Court precedents that appears to guarantee abortion rights, that doesn’t necessarily guarantee that abortion rights would be protected in this state if Roe were overturned. She notes that this reality

is why we ought to be as concerned about who is appointed to the Vermont Supreme Court as we are about who is appointed to the United States Supreme Court. Indeed, when Brian Burgess, Governor Douglas’ latest appointee to the Vermont bench, comes up for confirmation in January, he should be asked about his view of Beecham, just as Roberts should be asked about his view of Roe.

I brought up the new Burgess appointment in two earlier posts, but I didn’t note the implications of his appointment with as much particularity as this article. So I recommend you go to Seven Days and read it.

August 11, 2005

The Evolution of John Roberts ::
legal — tagged , , , and
1:17 pm

Ok, I know I need to stop with the John Roberts-related posting. But there’s just so much interesting stuff out there. The latest is this post on the evolution of John Roberts over at TPMCafe. A choice paragraph:

[The current] image of a judicial incrementalist, comfortable with Democrat-appointed judges, agonizing over each case he must rule on, praising liberal icon William Brennan, is sharply at odds with everything we know about the younger John Roberts. In the 1980s and early 1990s, Roberts evinced disdain for the constitutional right to privacy and signed briefs calling for the reversal of Roe v. Wade and the upholding of school prayer ceremonies. He argued that busing—a court-ordered remedy to equal protection violations—was itself unconstitutional. He criticized the availability of federal habeas corpus rights for state prisoners, supported legislation that would have stripped the Supreme Court of jurisdiction over certain issues, and opposed the 1982 expansion of the Voting Rights Act.

August 9, 2005

Vermont perspective on Leahy and Judge Roberts ::
legal — tagged , , and
8:04 pm

Today’s the Rutland Herald has an editorial on Senator Leahy and the forthcoming confirmation process. The paper trusts that Senator Leahy will be an effective leader in the confirmation process, both because he avoids needless political confrontation and because he’s a tough questioner (maybe Leahy’s past work as a prosecuting attorney has stuck with him in his thirty years in the Senate?). The editorial notes that this is a good thing:

There is no reason for kid gloves. Instead, there are reasons for a gentlemanly but thorough, honest and open discussion of the ideas underpinning the views of a man who will occupy an important role on the nation’s highest court for many years to come.

Senator Specter’s letter to Judge Roberts ::
legal — tagged , , , and
11:56 am

I’ve been thinking quite a bit about the concept of “judicial activism” over the past few weeks. Typically, it is perjoritive that conservative throw throw at so-called liberal judges and justices who make new, progressive law to fit the evolving legal needs and moral standards of American society. But there is a liberal flip-side to the “judicial activism” critique, which I want to spend some time talking about here in the coming weeks. After reading Senator Arlen Specter’s heads-up letter to Judge Roberts (noted by Howard Bashman among others), which deals with some of the questions the Senator plans to ask during the confirmation hearing next month, I think it is the perfect vehicle for such a discussion. Pay particular attention to the four questions the Senator asks Judge Roberts at the end.

So below is the letter in full. I don’t have any analysis at this point, but I will be thinking about it. Any typos are most likely the result of my transcription:

August 8, 2005

Honorable John G. Roberts
E. Barrett Prettyman Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001

Dear Judge Roberts,

I write to give you advance notice of some of the issues I will be asking at your confirmation hearing. In addition to identifying topics, I think it is helpful to outline the background for the questions to save time at the hearing.

In addition to the commentaries of scholars and others about the Supreme Court’s judicial activism and the Court’s usurping Congressional authority, members of Congress are irate about the Court’s denigrating and, really, disrespectful statements about Congress’ competence. In U.S. v. Morrison the Court rejects Congressional findings becuase of “our method of reasoning.” As the dissent notes, the Court’s judgment is “dependent upon a uniquely judicial competence” which implcitly criticizes a lesser quality of Congressional competence.

In Morrison the Court invalidated, by a 5-4 vote, legislation on gender-motivated crimes of violence involving three Virginia Polytechnical Institute football players who were accused of raping a fellow student.

Chief Justice Rehnquist’s opinion, interpreting the Commerce Clause, held Congress cannot regulate “non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The Court acknowledged the “contrast with the lack of Congressional findings that we faced in Lopez” and the Act was “supported by numerous findings regarding the serious impact of gender-motivated violate on victims and their families.”

Writing for four dissenters, Justice Souter referred to “the mountains of data assembled by Congress here showing the effects of violence against women on interstate commerce. Citing longstanding precedents, the dissent said:

The business of the courts is to review Congressional assessment not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.

Noting the obvious advantage Congress has in its fact-finding procedures contrasted with the Court’s limitations, the Souter dissent said:

The record includes reports on gender bias from task forces in 21 states and we have the benefit of specific factual finding in eight separate reports issued by Congress and its committees over the long course leading to its enactment.

From the New Deal Court in 1937 to the abrupt reversals Lopez and Morrison, Congressional authority under the Commerce Clause had gone unchallenged based on Justice Harlan’s rationale in the 1968 case Maryland v. Wirtz:

But where we find the legislators…have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

In the face of decades of precedents and a “mountain of data,” Chief Justice Rehnquist rejected Congress’ findings because of our “method of reasoning.”

To this Senator, who has labored through 25 years of intense legislative hearings and fict finding plus prior public service and experience in the real world, my immediate reaction is to wonder how the Court can possibly assert its superiority in its “method of reasoning” over the reasoning of Congress.

The Souter dissent furtehr notes the categorical formalism “...is useful in service a conception of Federalism.” A reinvigoration of Federalism is, of course, the hallmark agenday of the judicial activism of the Rehnquist Court.

Even with the Souter dissent referencing the crisis of 1937, I do not sugggest any move as radical as President Roosevelt’s attempt to pack the Court. I do see a great deal of popular and Congressional dissatisfaction with the judicial activism; and, at a minimum, the Senate’s determination to confirm new justices who will respect Congress’ constitutional role.

My Questions are:

1. Is there any real justification for the Court’s denigrating Congress’ “method of reasoning” in our constitutional structure of separation of power where the elected Congress has the authortity to decide public policy on issues such as gender-based violence effecting interstate commerce?

2. Is there any possible basis for the Court’s characterization of “uniquely judicial competence” implicitly criticising a lesser quality of Congressional competence?

3. Do you agree with Justice Harlan’s jurisprudence concerning legislation on the “rational basis” test as embraced by the dissent contrasted with the majority opinion [in Lopez]?

4. What ais your thinking on the jurisprudence of U.S. v. Lopez and U.S. v. Morrison which overturned almost 60 years of Congress’ power under the Commerce Clause?

Sincerely,
Arlen Specter

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