Showing posts with label judicial restraint. Show all posts
Showing posts with label judicial restraint. Show all posts

Thursday, May 28, 2009

Libertarian on Sotomayor and Merit

Sotomayor Pick Not Based on Merit, by Ilya Shapiro
This article appeared on CNN.com on May 27, 2009

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.

She is not one of the leading lights of the federal judiciary, and far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.
To be sure, Sotomayor has a compelling story: a daughter of working-class Puerto Ricans raised in Bronx public housing projects, diagnosed with diabetes at 8, losing her father at 9, accolades at Princeton and Yale Law, ending up on the federal bench.

Still, in over 10 years on the Second Circuit, she has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist. In picking a case to highlight during his introduction of the nominee, President Obama had to go back to her days as a trial judge and a technical ruling that ended the 1994-95 baseball strike.

Moreover, Sotomayor has a mixed reputation among lawyers who have practiced before her, some questioning her abilities as a judicial craftsman, others her erratic temperament, according to a piece by Jeffrey Rosen in The New Republic, which itself has come in for criticism.

Such anecdotal criticism is to be taken with a grain of salt — while Justice Antonin Scalia's bench-side manner is more vinegar than honey, even his detractors recognize his brilliance — but it does need to be investigated. So, too, do certain statements she made in presentations at Berkeley and Duke, respectively, the former arguing that a Latina necessarily sees the law differently than a white man, the latter suggesting that, at least to some degree, judges make rather than interpret law.

Again, this does not mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers. It also does not detract from the history she would make as the first Hispanic Supreme Court nominee — if you don't count Benjamin Cardozo, a descendant of Portuguese Jews. But a Supreme Court nomination is not a lifetime achievement award, and should not be treated as an opportunity to practice affirmative action.

Ironically, it is race-based employment practices of another kind that will likely get this nomination in hottest water. Sotomayor was on a panel that summarily affirmed the dismissal of claims brought by firefighters, including one Hispanic, whose promotions were denied because they would be based on a (race-neutral) exam whose results didn't yield the "right" racial mix. Curiously, the Ricci v. DeStefano appellate panel issued a cursory "unpublished" opinion that failed to grapple with the complex legal issues presented in the case.

Sotomayor's colleague José Cabranes, a liberal Democrat, excoriated the panel, without expressing a view on the merits of the case. Cabranes' dissent from the Second Circuit's decision not to rehear the case caught the Supreme Court's attention and, based on the oral argument, the court will probably reverse Sotomayor's panel when it rules on the case next month. iReport.com: Sotomayor 'the new face of America'

We are thus likely to have the unusual scenario of a Supreme Court decision having a direct personal effect on a nominee's confirmation process, which will not only force Sotomayor onto the defensive but cost the president significant political capital. It will also show that Obama's calls for "empathy," echoed by Sotomayor's citing her personal experiences as a Latina, ring hollow.

If Frank Ricci, a dyslexic fireman who sacrificed significant time and money and was denied promotion solely for his skin color, is not an empathetic figure, I'm not sure who is. And that is the larger point: A jurisprudence of empathy is the antithesis of the rule of law.

As then-Judge John Roberts said at his confirmation hearing: "If the Constitution says that the little guy should win, then the little guy's going to win in the court before me. But if the Constitution says that the big guy should win, well then the big guy's going to win, because my obligation is to the Constitution."

In any event, Senate Republicans will now have to decide what posture to take: combative or deferential, political or analytical. With the president still at the height of his popularity and solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or even, unless outrage over the Ricci case grows, vote Sotomayor down.

What they should do instead is force a full public debate about constitutional interpretation, probing Sotomayor's judicial philosophy and refusing to accept nonresponsive answers that mouth platitudes or avoid taking firm legal positions.

Now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.

And if Democrats insist on playing identity politics, I suggest a two-word response: Miguel Estrada, the Honduran immigrant with his own rags-to-riches story whose nomination to the D.C. Circuit Democrats successfully filibustered, effectively preventing George W. Bush from naming the first Hispanic Supreme Court justice.

Wednesday, May 27, 2009

Conservative views: A Bad Day for Impartiality - empathy as a code word for judicial liberalism

A Bad Day for Impartiality. By Rich Lowry
Obama uses empathy as a code word for judicial liberalism.
National Review Online, May 26, 2009 6:15 PM

It was a historic day when Pres. Barack Obama announced his nomination of Judge Sonia Sotomayor to the Supreme Court. No president had ever nominated a Hispanic woman. Nor had a recent president — or his nominee — expressed less genuine interest in the traditional craft of judging.

Impartiality has been supplanted by empathy. The old-fashioned virtue of objectivity — redolent of dusty law books and the unromantic task of parsing the law and facts — is giving way to an inherently politicized notion of judging based on feelings. Lady Justice is to slip her blindfold and let her decisions be influenced by her life experiences and personal predilections.

Obama and Sotomayor embrace this method of judging with gusto, even though it is deeply antithetical to justice properly understood. This is why Sotomayor is such a radical choice. Not only will she define the court’s left flank, she represents a judicial philosophy that is neither truly judicial nor a philosophy. The political outcome — and the personal biases that drive it — is paramount.

In introducing Sotomayor, Obama said he valued “a rigorous intellect” and “a recognition of the limits of the judicial role,” before pronouncing them both “insufficient.” A justice must have been tested “by hardship and misfortune,” Obama stipulated, so that he has “a common touch and a sense of compassion.”

It’s as if he wants a justice who can break the tension in an oral argument about the intricacies of antitrust law with engaging sports banter. The “Would you want to have a beer with him?” test reasonably applies to a politician, but to a black-robed justice charged with interpreting the Constitution? Justice Clarence Thomas is delightful company. Does that make his opinions any better or worse?

To complement his essentially political conception of the court, Obama has an essentially political conception of a justice. He voted against John Roberts despite Roberts’s qualifications and love of the law. Roberts failed the political test, defined by Obama as “one’s deepest values,” “the depth and breadth of one’s empathy.”

Obama uses empathy as a code word for judicial liberalism, and few nominees could be as starkly empathetic as Sotomayor. She has the requisite inspiring background. She has been a reliable liberal vote (never mind that the Supreme Court has been singularly unimpressed by her reasoning in cases that have reached it). And she believes that her background is one of her most important qualifications.

In a rambling 2001 speech, she disagreed with a colleague who thought judges should transcend their “personal sympathies and prejudices.” Sotomayor said, “I wonder whether achieving that goal is possible in all or even in most cases.” She argued that “the aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” In sum, she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

This stunning statement of race and gender determinism perhaps explains Sotomayor’s decision in the New Haven firefighter case now before the Supreme Court. A white firefighter studied for an exam to get a promotion. He bought $1,000 worth of books and had someone read them onto audiotapes because he’s dyslexic. He passed, but the city declined to promote him because no blacks had qualified for promotion.

Sotomayor thought this blatantly race-conscious action passed constitutional muster. Does her 2001 speech mean that she would have ruled differently if she were white, dyslexic, or a working-class firefighter struggling to get ahead? If so, she is manifestly unfit for the highest court in a country that puts the law above tribal loyalties.

Sotomayor’s nomination represents an extraordinary personal accomplishment and an important symbolic affirmation for Latinos. Her confirmation, though, would be another step toward eviscerating the constitutional function of the Supreme Court, as empathy trumps impartiality.

— Rich Lowry is the editor of National Review

WaPo: Kudos, and some questions, for Judge Sonia Sotomayor

The President's Pick. WaPo Editorial
Kudos, and some questions, for Judge Sonia Sotomayor
WaPo, Wednesday, May 27, 2009

THERE IS MUCH to admire in the achievements of Sonia Sotomayor, the New York judge tapped by President Obama to fill a Supreme Court vacancy created by the impending retirement of Justice David H. Souter.

Born to immigrant Puerto Rican parents and raised in a housing project in the Bronx, Judge Sotomayor went on to excel at Princeton and earn a law degree from Yale. She worked as a prosecutor and represented corporate interests in private practice before being named to the federal trial court in New York by President George H.W. Bush; she was later elevated to a slot on the New York-based U.S. Court of Appeals for the 2nd Circuit by President Bill Clinton. As a Hispanic woman with such a diversity of legal experience, she would bring a welcome fresh perspective to the bench.

Judge Sotomayor has spoken about how gender, ethnicity and race influence a judge's views, and that should be one subject for her confirmation hearings. In a 2001 speech, she said: "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. . . . Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Senators could ask her, then, how, when deciding a case, she balances the quest for objectivity with her personal experiences. They might also ask her views on judicial activism. In a panel discussion in 2005, she said that a "court of appeals is where policy is made." Conservative critics have seized on this statement to argue that she is a judicial activist who believes judges should make, rather than interpret, the law. Yet her statement could just as easily be understood to be explaining correctly that the courts of appeals -- and not the Supreme Court -- are the venues where the vast majority of cases and policies are ultimately decided.

We hope Judge Sotomayor also will discuss her thinking in the case of Ricci v. DeStefano, in which a group of white firefighters sued the city of New Haven for failing to certify promotion tests because no African Americans had scored high enough to qualify for advancement. A trial court ruled against the white firefighters, and on appeal, Judge Sotomayor and two colleagues essentially rubber-stamped the lower court decision without elaboration, even though the case presented important and undecided questions of law. That case is now awaiting a decision by the Supreme Court justices whom Judge Sotomayor soon hopes to join as a colleague.

Senators are right to closely scrutinize Judge Sotomayor's philosophy and qualifications. She has produced a rich record of opinions as an appeals court judge for the Judiciary Committee to discuss. Senators also should remember that Mr. Obama, like any president, is entitled to deference in choosing a justice.

WaPo on California's highest court ruling on Proposition 8

Proposition 8 Stands
California's highest court rules that the voters have the right to be wrong.
WaPo, Wednesday, May 27, 2009

THE JUDGES of the California Supreme Court ruled yesterday that they can be overruled by the people of their state. That's the import of their 6 to 1 decision upholding Proposition 8, which bars same-sex marriage. They're probably right on the law, but the outcome is wrong as a matter of fairness, and our guess is that the people of California will reconsider before too long.

This same court ruled in May 2008 that the state's constitution required recognition of same-sex marriage. In November, voters narrowly repudiated that decision by approving Proposition 8, which amended the constitution to provide that "only marriage between a man and a woman is valid or recognized in California."

Yesterday, three of the four justices who had originally ruled in favor of same-sex marriage nonetheless agreed with the three dissenters in the original case that Proposition 8 should stand. This outcome suggests that those challenging the legality of Proposition 8 had the weaker legal case, however wrongheaded the amendment's content. As the court found, those challenging the proposition, including private plaintiffs and state Attorney General Jerry Brown, essentially complained "that it is just too easy to amend the California Constitution through the initiative process." That's probably true, but, as the court noted, the people of California are free to adopt a flawed system.

In the course of voting to uphold Proposition 8, the court made important -- and just -- findings. First, it found that the marriages of the 18,000 same-sex couples who acted before the proposition was approved remain valid. Second, it emphasized that other same-sex couples still enjoy the right to civil unions, allowing gays and lesbians to "choose one's life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage." Rather, said Chief Justice Ronald M. George, the measure "carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's" rights. In other words, the terminology is different for same-sex couples, but the rights remain the same as those of other married couples.

This is disappointing; words do matter. Yet we remain confident that the inexorable trend of history is to recognize equality for gay men and lesbians, allowing them to marry rather than relegating them to a separate-but-equal legal status. The recent moves in Vermont, Maine and Iowa in support of same-sex marriage, and efforts in that direction in New Hampshire, should offer some comfort to the disappointed citizens of California, gay and straight alike, that their state will before long undo this unfortunate proposition.

Wednesday, May 13, 2009

'A Blatant Extortion': the DBPC case in Nicaragua and Dole Food

'A Blatant Extortion.' WSJ Editorial
A judge slams plaintiffs lawyers' torts-for-import game.
WSJ, May 13, 2009

Court cases get dismissed all the time, but rarely are dismissals as significant as the two lawsuits against Dole Food and other companies that were tossed recently by a California judge. Among other good things, the ruling is a setback for tort lawyers who troll abroad seeking dubious claims to bring in U.S. courts.

The allegations against Dole, the world's largest fruit and vegetable producer, involved banana plantation workers in Nicaragua who alleged that exposure to the pesticide DBPC in the 1970s left them sterile. The only problem is that most of the plaintiffs had not worked at plantations and weren't sterile. In fact, there's no evidence that farm workers at Dole facilities were exposed to harmful levels of the chemical -- which was legal and widely used at the time -- or that the level of exposure they did experience even causes sterility.

"What has occurred here is not just a fraud on the court, but it is a blatant extortion of the defendants," said Los Angeles Superior Court Judge Victoria Chaney in her oral ruling. More than 40 related cases involving thousands of plaintiffs from Honduras, Costa Rica, Guatemala, Panama and the Ivory Coast are pending in her court. And the ruling puts in doubt some $2 billion in judgments that plaintiffs lawyers have already obtained in Nicaragua.

Judge Chaney dismissed the cases "with prejudice" to prevent the plaintiffs from filing again on the same claims, and she denounced the lawyers who hatched the scheme. "This is a very sad day for me to be presiding over such a horrific situation," said the judge, who described a "pervasive conspiracy" involving U.S. plaintiffs lawyers and corrupt Nicaraguan judges.

Judge Chaney said she heard evidence of U.S. attorneys colluding with judges, lab technicians and local officials in Nicaragua to suborn perjury and doctor medical reports. Ten thousand men were rounded up and coached to make false claims of sterility in hope of reaping billions of dollars from companies like Dole, Dow Chemical and Amvac. Anyone who revealed the ruse was threatened with violence, as were the U.S. investigators hired by the defendants.

"There have been groups of medical personnel providing sham laboratory reports indicating sterility where none really exists; groups of fathers denying paternity of their own children, posing as lonely men coming into the court, saying that they had no solace in their old age because they have no children," said the judge.

Plaintiffs attorney Juan Dominguez of Los Angeles was singled out for alleged behavior that Judge Chaney said has "criminal overtones." At a hearing last week, she announced that she was referring Mr. Dominguez to federal prosecutors for investigation of perjury, obstruction of justice, defrauding the court and conspiring to defraud a U.S. company. Mr. Dominguez didn't show at Judge Chaney's hearing and is thought to be somewhere in Nicaragua.

The plaintiffs were also represented by the Sacramento firm of Miller, Axline & Sawyer. The judge said she didn't believe the Miller Axline lawyers were in on the conspiracy but added that they should have been suspicious. "I would have thought that a bit of vigilance would have suggested to plaintiff's counsel that something was awry," she said.

The ruling is especially useful as a rebuke to the torts-for-import business, whereby U.S. tort lawyers travel abroad, join with local lawyers to manufacture claims, and then engage in client recruitment practices that are blatantly illegal in the U.S. In essence, the tort bar's goal is to import lawsuits from foreign countries where it's nearly impossible to challenge claims on factual grounds because evidence is hard to come by. In a related case involving Dole, the Texas plaintiffs firm Provost Umphrey is asking a federal judge in Miami to enforce a $98.5 million judgment obtained by banana farm workers in Nicaragua. Never mind that the Nicaraguan judge who made the initial ruling is the same one cited by Judge Chaney for allegedly taking bribes and fixing cases against U.S. firms.

Judge Chaney's actions are a welcome act of legal hygiene and an example for other judges of how to police false legal claims.

Thursday, May 7, 2009

The Justice Department, torture and the Demjanjuk deportation case

The Justice Department’s Torture Hypocrisy. By Andrew C. McCarthy
Investigate Bush lawyers’ torture analysis one day, cite it favorably the next.
NRO, May 6, 2009 1:30 PM

Federal President's attitude toward the rule of law, Chrysler & UAW

White House puts UAW ahead of property rights. By Michael Barone
Washington Examiner, May 05, 2009

Last Friday, the day after Chrysler filed for bankruptcy, I drove past the company’s headquarters on Interstate 75 in Auburn Hills, Mich.

As I glanced at the pentagram logo I felt myself tearing up a little bit. Anyone who grew up in the Detroit area, as I did, can’t help but be sad to see a once great company fail.

But my sadness turned to anger later when I heard what bankruptcy lawyer Tom Lauria said on a WJR talk show that morning. “One of my clients,” Lauria told host Frank Beckmann, “was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under threat that the full force of the White House press corps would destroy its reputation if it continued to fight.”

Lauria represented one of the bondholder firms, Perella Weinberg, which initially rejected the Obama deal that would give the bondholders about 33 cents on the dollar for their secured debts while giving the United Auto Workers retirees about 50 cents on the dollar for their unsecured debts.

This of course is a violation of one of the basic principles of bankruptcy law, which is that secured creditors — those who lended money only on the contractual promise that if the debt was unpaid they’d get specific property back — get paid off in full before unsecured creditors get anything. Perella Weinberg withdrew its objection to the settlement, but other bondholders did not, which triggered the bankruptcy filing.

After that came a denunciation of the objecting bondholders as “speculators” by Barack Obama in his news conference last Thursday. And then death threats to bondholders from parties unknown.

The White House denied that it strong-armed Perella Weinberg. The firm issued a statement saying it decided to accept the settlement, but it pointedly did not deny that it had been threatened by the White House. Which is to say, the threat worked.

The same goes for big banks that have received billions in government Troubled Asset Relief Program money. Many of them want to give back the money, but the government won’t let them. They also voted to accept the Chrysler settlement. Nice little bank ya got there, wouldn’t want anything to happen to it.

Left-wing bloggers have been saying that the White House’s denial of making threats should be taken at face value and that Lauria’s statement is not evidence to the contrary. But that’s ridiculous. Lauria is a reputable lawyer and a contributor to Democratic candidates. He has no motive to lie. The White House does.

Think carefully about what’s happening here. The White House, presumably car czar Steven Rattner and deputy Ron Bloom, is seeking to transfer the property of one group of people to another group that is politically favored. In the process, it is setting aside basic property rights in favor of rewarding the United Auto Workers for the support the union has given the Democratic Party. The only possible limit on the White House’s power is the bankruptcy judge, who might not go along.

Michigan politicians of both parties joined Obama in denouncing the holdout bondholders. They point to the sad plight of UAW retirees not getting full payment of the health care benefits the union negotiated with Chrysler. But the plight of the beneficiaries of the pension funds represented by the bondholders is sad too. Ordinarily you would expect these claims to be weighed and determined by the rule of law. But not apparently in this administration.

Obama’s attitude toward the rule of law is apparent in the words he used to describe what he is looking for in a nominee to replace Justice David Souter. He wants “someone who understands justice is not just about some abstract legal theory,” he said, but someone who has “empathy.” In other words, judges should decide cases so that the right people win, not according to the rule of law.

The Chrysler negotiations will not be the last occasion for this administration to engage in bailout favoritism and crony capitalism. There’s a May 31 deadline to come up with a settlement for General Motors. And there will be others. In the meantime, who is going to buy bonds from unionized companies if the government is going to take their money away and give it to the union? We have just seen an episode of Gangster Government. It is likely to be part of a continuing series.

Wednesday, May 6, 2009

Against the empathy standard for choosing judges

Ruth Marcus’s Misguided Defense of the Obama Standard. By Ed Whelan
Bench Memos/NRO, May 07, 2009

In today’s Washington Post, columnist Ruth Marcus offers a defense of President Obama’s so-called “empathy” standard for judges. Her defense suffers from three basic flaws.

First, while claiming that conservatives present an “absurd caricature” of Obama’s views, Marcus doesn’t present a fair account of Obama’s own words. As I discussed in this essay:

In explaining his vote against [Chief Justice] Roberts, Obama opined that deciding the “truly difficult” cases requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.”

Marcus quotes part of what she calls “Obama’s most controversial formulation of the empathy argument”—“we need somebody who’s got … the empathy to recognize what it’s like to be a young, teenage mom; the empathy to understand what it’s like to be poor or African American or gay or disabled or old”—but she conveniently omits Obama’s closer: “and that’s the criterion by which I’ll be selecting my judges.”

Second, Marcus asserts that “the cases that matter most … inevitably call on the judge to bring to the task his—or her—life experiences.” But she doesn’t support that assertion with argument. If the “right answer” on a constitutional question isn’t “available to a judge who merely thinks hard enough,” one obvious alternative to the judge’s indulging his or her own values—the alternative that judicial restraint requires—is to defer to the democratic enactment. In other words, if a judge can’t say with requisite certainty that an enactment is unconstitutional, the judge shouldn’t use his or her own values as some sort of tiebreaker.

Marcus states that “[a]ll judges are guided to some extent, consciously or unknowingly, by their life experience.” The question is whether they should exercise the discipline to be as dispassionate as possible or should instead indulge their passions.

Third, Marcus asserts that “[p]ossessing the ‘empathy to recognize’ should not determine the outcome of a case, but it should inform the judge’s approach.” But the line that she purports to draw is imaginary: if it’s permissible to indulge one’s own empathy, it’s impossible to say that doing so won’t be outcome-determinative in some cases. Indeed, if doing so doesn’t affect the outcome, then what’s Obama’s point?

It’s the role of the political branches to make law and policy. It’s the role of those who occupy positions in those branches, and not that of judges, to translate competing concepts of empathy and prudence into public policy and to consult their values and life experiences in doing so. President Obama is dead wrong on this fundamental matter.

In favor of the empathy standard for choosing judges

Behind Justice's Blindfold, By Ruth Marcus
WaPo, Wednesday, May 6, 2009

Should the judge be an umpire or an empathizer?

Chief Justice John Roberts memorably likened the judge to a baseball umpire, dispassionately applying existing rules to call balls and strikes.

President Obama is more, well, touchy-feely. As he weighs a replacement for retiring Justice David Souter, the president said, he wants "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." That "quality of empathy," he said, is "an essential ingredient for arriving at just decisions and outcomes."

This is red-alert talk for conservatives. "Those are all code words for an activist judge who is going to . . . be partisan on the bench," Utah Republican Sen. Orrin Hatch warned on ABC's "This Week."

Even before the election, Northwestern University law professor Steven Calabresi, a co-founder of the Federalist Society, was already at Defcon 4. In a Wall Street Journal op-ed, he argued that Obama's "emphasis on empathy in essence requires the appointment of judges committed in advance to violating" the judicial oath to do equal justice to rich and poor. "To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most."

I admit to a bit of wincing at the word "empathize," with its sensitive-new-age-guy aura. If I thought Obama was advocating a pick-your-favorite-side approach, I'd be on the barricades, too. But his position is not anything like this absurd caricature. Indeed, it reflects a more thoughtful, more nuanced understanding of the judicial role than Roberts's seductive but flawed umpire analogy.

Like its downscale cousin, the dictate that judges should "interpret the law, not legislate from the bench," the judge-as-umpire trope is fundamentally misleading. Of course judges are supposed to be neutral arbiters of the cases that come before them, ruling on the merits of the claims rather than the sympathy evoked by one party or the other. Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent.

Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That's not possible -- not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his -- or her -- life experiences, conception of the role of the courts and, as Obama put it, "broader vision of what America should be."

Obama's most controversial formulation of the empathy argument came in a 2007 speech to Planned Parenthood. "The issues that come before the court are not sport," he said, disputing the umpire approach. "They're life and death. And we need somebody who's got . . . the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African American or gay or disabled or old."

Possessing the "empathy to recognize" should not determine the outcome of a case, but it should inform the judge's approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia's sodomy law, told fellow justices -- and even a gay law clerk during that very term -- that he had "never met a homosexual." Would the outcome of Bowers -- an outcome Powell regretted within a few months -- have been different if the justice had known men and women in same-sex relationships?

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws "seek to control a personal relationship." You got the sense that Kennedy actually knew people in such relationships.
And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter's pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

Justice's blindfold is a useful metaphor for impartiality. It's not a fixed prescription for insensitivity, or for obliviousness to the real world swirling outside the arid confines of the courthouse.

Tuesday, May 5, 2009

The Best Judges Obama Can't Pick

The Best Judges Obama Can't Pick. By Benjamin Wittes
Brookings, May 3, 2009

What do Merrick Garland, David Tatel and Jose Cabranes have in common?

All are sitting federal court of appeals judges who were nominated by Democratic presidents. All three are deeply admired by their colleagues and are among a small group of the very finest federal judges in the country. And all three have names you probably won't hear often in public discussions about whom President Obama should tap to replace retiring Justice David H. Souter.

Garland: white guy. Tatel: white guy and, at 67, too old. Cabranes: Hispanic, sure, but even older.

I have nothing against the people whose names have so far been floated as possible nominees (some of them are excellent), and I'm not against diversity on the high court. Far from it: It's important to have a court that looks like America, and it is particularly important that following Sandra Day O'Connor's retirement in 2005 an additional woman join the high court.

That said, there are significant costs to the nominating system that we have developed, in which gender, ethnicity and age have, from the very start of the search for Souter's replacement, placed off-limits many lawyers and judges whose colleagues regard as some of the best in their profession. The dirty little secret is that the conservative talent pool on the federal courts these days is larger and deeper than the liberal one, mainly because Republicans have been in power far longer than Democrats recently and have therefore had more opportunity to cultivate a strong bench on the bench.

While both parties feel pressure to keep the bench diverse, Democrats have less latitude for bucking these expectations in judicial nominations than Republicans do. The core constituency that Republicans must satisfy in high court nominations is the party's social conservative base, which fundamentally cares about issues, not diversity, and has accepted white men who practice the judging it admires. By contrast, identity-oriented groups are part of the core Democratic coalition, so it's not enough for a Democrat to appoint a liberal. At least some of the time, it will have to be a liberal who also satisfies certain diversity categories.

The age issue has particularly striking consequences. It used to be commonplace for presidents to appoint justices who were well into their 60s. Lewis Powell, Earl Warren, Charles Evans Hughes (the second time around), William Howard Taft and Oliver Wendell Holmes, for example, were at least 60 when nominated, as was Justice Ruth Bader Ginsburg when President Clinton nominated her in 1993. Older judges brought experience to the table, and because life tenure is shorter for them than for younger judges, the stakes are lower in their confirmations.

Yet the ever-escalating political war over the courts has put a premium on youth -- on justices who can hang around for decades as members of rival ideological camps. Judge J. Harvie Wilkinson III, one of the most esteemed conservative jurists in the country, might well be on the Supreme Court today, for example, had he not had the temerity to be 60 when O'Connor retired and opened up a slot. Nor is Obama likely to follow Clinton's lead in declining to discriminate against the late-middle-aged. After all, if conservatives only appoint relative youngsters such as John G. Roberts and Samuel Alito (50 and 55, respectively, at the time of their nominations), it's unilateral disarmament for a liberal to do otherwise.

The result is a strange conversation about who should replace Souter -- one that self-consciously omits many of the judges whose work is most actively studied by those who engage day-to-day with the courts. This may well be a reasonable price to pay for a diverse bench, and for those who don't read judicial opinions, it is in any event an invisible price. But let's be candid about paying it.

Saturday, May 2, 2009

Will Obama send a left-wing Scalia to the High Court?

Succeeding Souter. WSJ Editorial
Will Obama send a left-wing Scalia to the High Court?
WSJ, May 2, 2009

With Justice David Souter's announced retirement, a Democratic President will replace a Republican appointee to the Supreme Court. Normally, this would be a chance to alter the ideological balance of a closely divided Court. Justice Souter's replacement is unlikely to do that, but who President Obama does choose will tell us whether Mr. Obama's early move to the left on domestic issues is mirrored in his judicial picks.

Justice Souter was a relatively unknown jurist from New Hampshire who'd served on the First Circuit Court of Appeals in Boston for only three months before being selected by President George H.W. Bush in 1990. President Bush was presented with the rare chance to replace a retiring liberal giant in Justice William Brennan and create a new center-right majority.

But after the Robert Bork brawl three years earlier, Mr. Bush chose to look for a conservative with no paper trail that could trigger another confirmation fight. At the urging of his chief of staff, John Sununu, and New Hampshire Senator Warren Rudman, he settled on Judge Souter, who'd written no books, no appellate court opinions and one law review article. He was confirmed, 90-9.

In short order, Justice Souter was distancing himself from conservatives on the High Court. Most famously, he joined the 6-3 majority in the 1992 Casey ruling upholding Roe v. Wade. While he advertised himself as a believer in stare decisis, or Supreme Court precedent, Justice Souter nearly always found a way to join 5-4 majorities that overturned precedents he disliked. His nomination was a lost opportunity and one of President Bush's biggest failures -- and the precedent is one reason Republicans revolted against George W. Bush's nomination of Harriet Miers.

Don't expect President Obama to return the favor. Justice Souter, who is 69, is likely to be replaced by a much younger version of himself, even if it turns out to be a black, Hispanic or female version. The reported shortlist includes Elena Kagan, the former Harvard Law School dean and current Solicitor General; Second Circuit Court of Appeals Judge Sonia Sotomayor; Kathleen Sullivan, a professor and former dean of Stanford Law School; and Massachusetts Governor Deval Patrick. Let's just say that Justices Antonin Scalia and Clarence Thomas are in no danger of finding themselves with a new ally on the Court anytime soon.

Judge Sotomayor would be the High Court's first Hispanic justice and allow Mr. Obama to reward the Latino voters who helped elect him. The fact that she was appointed to the federal bench by the first President Bush could also be used to combat complaints that she's too liberal. But Judge Sotomayor's record deserves scrutiny, not least because she was part of a three-judge panel that declined to address the Constitutional issues at stake in the Ricci workplace discrimination case now before the Supreme Court; some speculate that she didn't want to reveal her views on such a controversial issue.

If Mr. Obama wants a centrist heavyweight, he could turn to Jose Cabranes, a Puerto Rican immigrant named to the Second Circuit Court of Appeals by President Clinton in 1994. But Democrats and liberal activists, who haven't had a Supreme Court pick since Justice Stephen Breyer 15 years ago, will be looking for a left-wing Antonin Scalia, a jurist who can forcefully articulate reliably liberal positions.

Elections matter. And right now President Obama may have the personal popularity and Senate votes to confirm almost anyone he wants. But Republicans still have an obligation to scrutinize his nominees, and that includes finding out whether they share the President's view that judges should consider more than just the facts of a case and the applicable law.

"We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenaged mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old," Mr. Obama said in 2007. "And that's the criteria by which I'm going to be selecting my judges." It's hard to imagine a more expansive view of a judge's role than that one.

Yet given everything else Mr. Obama wants to accomplish this year, he may not also want to risk a battle over a notably liberal Supreme Court nominee. Republicans might take some comfort in that, but not too much. Justice John Paul Stevens is pushing 90. This is unlikely to be Mr. Obama's only nomination.

WaPo: More Souters

More Souters. WaPo Editorial
The qualities President Obama should seek in filling the shoes of a fine justice
WaPo, Saturday, May 2, 2009

FOR YEARS, the rallying cry in conservative legal circles has been "No More Souters," by which activists meant no more "stealth" Supreme Court nominees whose jurisprudence differed from what the president who appointed them had expected. With Supreme Court Justice David H. Souter announcing his intention to retire after 19 years, a good guide for President Obama might be "More Souters" -- but not in the sense that we want stealth nominees. Justice Souter has turned out to be not only smart and thoughtful -- something that could have been predicted from his confirmation testimony -- but also open-minded and free from ideological orthodoxy. That has made him anathema to the right, but a fine justice whose tenure has been marred only by his well-known aversion to our city. Another Souter would not be a bad achievement for Mr. Obama.

It's odd to realize that the retirement of a justice appointed by President George H.W. Bush and his replacement by a Democratic president will probably not shift the court significantly to the left. Instead, Mr. Obama has an opportunity of a different sort: to add to the diversity of perspectives and experiences on the high court. We do not mean that he should seek to fill in a specific blank -- a second woman, the first Hispanic -- but that he is right to weigh candidates' backgrounds along with their judicial philosophies and intellectual capabilities. Time outside the legal academy and the courtroom is an asset to justices; the best bring to the bench more than a good brain. Constitutional interpretation is not a technocratic operation. Experience in the real world -- of business, of politics, of family life -- adds to the mix. Mr. Obama touched on this yesterday when he outlined the qualities he will seek in a nominee: "someone who understands justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives."

The temptation for Republicans will be to treat Mr. Obama's pick as some Democrats -- including, sad to say, then-Sen. Obama -- treated President George W. Bush's. It is legitimate for senators to take a nominee's ideology into account and to probe it within ethical limits, but it is also important to keep in mind that elections have consequences, and that the president is, as a general matter, entitled to name justices who reflect his own understanding of the Constitution and the role of the courts. We say this having supported Mr. Bush's two nominees -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- as within the mainstream of conservative legal thought. Mr. Obama deserves the same degree of deference in the important choice that he will soon make.

Friday, April 24, 2009

Libertarian: LOST is an artifact of the collectivist of the 1970s' New International Economic Order

Paper Promises vs. Real Costs. By Doug Bandow
LOST is an artifact of the collectivist of the 1970s' New International Economic Order
Washington Times, April 22, 2009

The return of piracy to the high seas demonstrates the limits of international law. The international community might agree that it is wrong to seize ships for ransom, but a few thugs with guns in Somalia beg to differ. Paper guarantees cannot stop seajackings.

Yet Secretary of State Hillary Rodham Clinton wants Congress to ratify the Law of the Sea Treaty, the ultimate in paper guarantees. LOST, which essentially creates a second United Nations, is an artifact of the collectivist New International Economic Order popular in the 1970s, but it is being resold as a guarantor of freedom of the seas.

The convention obviously doesn't do anything to prevent piracy. Moreover, the recent contretemps between the U.S. and Chinese navies demonstrates that LOST's navigational guarantees are no more certain.

The USNS Impeccable, an unarmed spy ship, was operating 75 miles from China's Hainan Island. Chinese vessels harassed the U.S. vessel and ordered it to leave, causing the U.S. Navy to send in a supporting destroyer.

Territorial waters extend just 12 nautical miles, but LOST empowers nations to exercise control over resources in the 200-mile Exclusive Economic Zone. Washington contends that U.S. ships are allowed to conduct activities "in waters beyond the territorial sea of another state without prior notification or consent," according to Defense Department spokesman Stewart Upton. Beijing disagrees.

Washington would seem to have the better argument, though China's contention that peaceful uses of the ocean do not include spying is plausible. Alas, LOST fails to offer the clear, unambiguous protection of navigational freedom as claimed by its proponents.

LOST largely codifies customary international law, which favors free transit. However, the treaty only offers a paper guarantee. Even if LOST recognizes the Impeccable's right to spy, it offers no practical protection of that right.

If China - or Brazil, Malaysia or Pakistan, which also purport to forbid intelligence gathering within their exclusive zones - believes it to be in its interest and ability to prevent foreign passage, it won't spend a lot of time parsing ambiguous LOST provisions before acting. Geopolitical interest and military capability, not juridical technicalities, will triumph.

The problem is likely to grow as Beijing develops a blue-water navy. Last month, Director of National Intelligence Dennis C. Blair told the Senate Armed Services Committee: "In the past several years, they have become more aggressive in asserting claims for the [exclusive zones] which are excessive under almost any international code." Despite China's adherence to LOST.

Although the treaty's navigational benefits are more theoretical than real, LOST has significant downsides. Most important, the so-called Part XI governing seabed mining was amended in 1994, but the result is only less bad.

LOST was crafted to redistribute wealth from First World democracies to Third World autocracies. The International Seabed Authority would regulate private ocean development, mine the seabed itself through an entity called the Enterprise, and pay off favored nations and groups. Those objectives remain unchanged.

Moreover, treaty proponents talk excitedly about new litigation opportunities created by LOST. Professor William C.G. Burns of the Monterey Institute of International Studies wrote that the convention "may prove to be one of the primary battlegrounds for climate change issues in the future." He dismissed the argument that the document does not authorize such litigation: "While very few of the drafters of [the United Nations Convention on the Law of the Sea] may have contemplated that it would one day become a mechanism to confront climate change, it clearly may play this role in the future."

Environmental activists also look forward to using LOST Article 207, which directs countries to "adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources." Treaty advocates publicly claim the provision is merely hortatory.

Yet the mandate already has sparked litigation between Ireland and Britain. Moreover, Citizens for Global Solutions and the World Wildlife Federation argue that the convention will stop Russia from polluting the Arctic. They have yet to explain how LOST would bind Russia but not America.

No wonder Bernard H. Oxman of the University of Miami warned LOST backers to shut up about their plans. He explained: "Experienced international lawyers know where many of the sensitive nerve endings of governments are. Where possible, they should try to avoid irritating them."

Finally, the United Nations proclaims that LOST is not "a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced." If you like activist judges at the national level, imagine what you will get at the international level.

Before the Senate approves the Law of the Sea Treaty, members should consider the tradeoff they would be making. The convention offers paper benefits but imposes real costs. It's a deal only a pirate could love.

After 29 years, Senate ratification of the CEDAW treaty is still a terrible idea

This Is No Time to Go Wobbly. By Austin Ruse
After 29 years, Senate ratification of the CEDAW treaty is still a terrible idea.
The Weekly Standard, Apr 27, 2009

The United Nations Committee on the Elimination of All Forms of Discrimination Against Women once told Libya to reinterpret the Koran so as to fall within committee guidelines. It instructed Belarus that a national celebration of Mother's Day violated women's rights by perpetuating a negative cultural stereotype.

It appears that the Obama administration and Senate Democrats want the United States to sit in the dock before this same committee, as must every country that ratifies the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, pronounced See-Daw). The CEDAW treaty has bounced around the Senate for 29 years, ever since President Jimmy Carter signed it in 1980. It has twice been voted favorably out of the Senate Foreign Relations Committee but has never received the necessary concurrence of two-thirds of the senators present, no matter which party has been in power. Now, however, with staunch backers like Hillary Clinton and John Kerry in key positions in the executive and legislative branches, CEDAW's moment may finally have come.

Let us hope not. The first big reason for rejecting the CEDAW treaty is wholly practical: It is unneeded. American women enjoy civil and human rights that are the envy of the world. Take the word of one of America's leading feminist activists and theoreticians, Janet Benshoof. She writes on RH Reality Check, a website funded by Ted Turner's UN Foundation, "No one questions that American women enjoy a higher standard of rights and freedoms than do most people in the world." American women do not need CEDAW to guarantee them their rights.

The second big reason not to ratify is the language of the treaty itself. Note that it calls for the elimination of "all forms" of discrimination against women. And its backers are not kidding. The treaty is explicit that this refers not just to public but also to private behavior. Two years ago the committee instructed both Greece and Indonesia to root out sex differences in housework; another signatory, Norway, actually legislated sex parity on private corporate boards, then testified before the committee that the law was proving difficult to enforce.

The treaty may be bad, but the committee that is charged with monitoring compliance is worse and is the third big reason to resist CEDAW. All U.N. human rights treaties establish compliance committees before which governments must report every few years. At least on paper, the committees have the power only to "offer observations." But they go further, and much of what they say is purely ideological. The CEDAW committee directed China to legalize prostitution even though the treaty condemns prostitution. It criticized Ireland for allowing the Catholic Church too great a voice in public policy. It took Slovenia to task because only 30 percent of children were in state-sponsored day care.

Some will look at these pronouncements and conclude the committee could not possibly have any real power. They would be wrong. Many legal advocates and national courts around the world take the committee seriously. It should be noted that any power the committee has is given to it by leftist lawyers and activist judges. Still, it is actual power.

The high court of Colombia recently overturned the country's laws on abortion. In doing so, it cited the CEDAW committee, which had told Colombia it was treaty-bound to change its laws. The Mexican high court recently upheld the liberal abortion laws of Mexico City, and at least two of the judges mentioned supposed CEDAW obligations.

Keep in mind that the CEDAW treaty is silent on abortion, something Senator Barbara Boxer and the Congressional Research Service underscore in deflecting this objection to it. What they don't say is that the committee's General Recommendation 24 has reinterpreted the treaty to make abortion a part of its health mandate. According to Human Rights Watch, the CEDAW committee has directed 93 countries to liberalize their abortion laws.

Who sits on this committee that reinterprets the hard-fought political decisions of sovereign states? Twenty-two academics and left-wing NGO advocates for women's rights from countries like Bangladesh, Cuba, Algeria, Thailand, and Ghana (to cite just the countries of the first five members listed). At present all but one of the members are female. As for their eminence, it's a safe bet that long-time CEDAW supporter Vice President Joseph Biden couldn't name a single one of them. Nevertheless, once nominated and elected by signatory nations, the members of the committee are accountable only to themselves. And this is the group the Obama administration would invite to judge the United States.

Which brings us to the final big reason for refusing to ratify the CEDAW treaty. Like every kangaroo court, it undermines the rule of law, and in this case it also sullies the international system. If the treaty obligations of sovereign states can be reinterpreted by this committee and then accepted by national courts, the concept of sovereignty has been drained of meaning. For that matter, the whole notion of human rights is up for grabs if left-wing nonstate actors are allowed to create and impose new human rights at will.

It is tempting to assume that neither the CEDAW treaty nor the committee could affect a big, strong country like the United States. But remember, the Supreme Court decision in Roper v. Simmons overturning the juvenile death penalty cited the U.N. Convention on the Rights of the Child, a treaty the United States has never ratified. The Court also cited the death penalty provision of the International Covenant on Civil and Political Rights, a provision the Senate formally rejected when approving the covenant. Far from deterred, the left-wing legal class in this country is primed and ready to advance litigation citing CEDAW, and high officials toeing the feminist line are eager to give them that chance.

Still, sensible politicians of both parties have found good reason to resist this troublesome treaty for a generation. May they once more carry the day.

Austin Ruse is president of C-FAM (the Catholic Family & Human Rights Institute), a New York and Washington-based research institute on international social policy.

Wednesday, April 22, 2009

Firefighters, civil rights law and the politics of race collide at the Supreme Court - New Haven, Conn.

Trouble in the Firehouse. WaPo Editorial
Firefighters, civil rights law and the politics of race collide at the Supreme Court.
WaPo, Wednesday, April 22, 2009

THE CITY of New Haven, Conn., found itself in an untenable position in 2003. The city hired an outside firm to develop written and oral tests for some 130 firefighters vying for promotions to lieutenant and captain. The views of incumbent fire officials in the city and those of a high-ranking official from an out-of-state fire department were solicited to ensure that the test was fair. But when test scores were calculated, none of the 27 African American firefighters who took the test did well enough to be eligible for elevation.

The city called a timeout, saying it needed to determine why the test had produced such a racially lopsided result. Were the scores legitimate, a reflection that white firefighters studied harder or were better prepared for supervisory positions than their black counterparts? Or were the results a product of inadvertent yet unlawful discrimination against minority candidates? Black firefighters threatened to sue the city if it certified the results; white firefighters threatened to sue the city if it did not.

After holding several public hearings, New Haven decided to throw out the results, meaning that no one would be promoted on the basis of the test scores. The white firefighters sued, arguing in federal court that the city's actions violated Title VII of the Civil Rights Act of 1964 as well as the equal protection clause of the U.S. Constitution. The case is scheduled to be heard by the Supreme Court this morning.

Under Title VII, the city was obligated to investigate test results that appeared to have had a disparate impact on a particular group; what it is not permitted to do, however, is to rely solely on race to favor one group over another without a compelling government interest. New Haven did the right thing by putting the promotions on hold while it investigated. What is not clear is whether the city acted properly in ultimately refusing to certify the test results.

A federal district judge threw out the case, and an appeals court panel affirmed that decision in a one-paragraph, unsigned opinion, but these decisions were made without a trial and the kind of extensive fact-finding that often accompanies such a complex matter. The white firefighters assert that the city used civil rights laws as a pretext for a political decision. The city says that politics had nothing to do with its decision. There is not enough evidence in the record to judge.

Before the Supreme Court uses this case to set legal standards for the country and perhaps change how one of the most important civil rights laws is implemented, it should have a fully developed record available. The solicitor general's office offers sound advice: Vacate the appeals court decision and send the matter back to the trial court for it to gather information about what motivated the city's decision.

Monday, April 20, 2009

Newsweek on Harold Koh

Newsweek on Harold Koh, by Ed Whelan
Bench Memos/NRO, Monday, April 20, 2009

In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser. As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect. And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.” That said, I have a correction and a broader comment.

First, the correction: Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.” In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore. That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.” And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee.

That correction feeds into a broader comment: I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are. They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.” But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post). The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.” I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office. I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are. But the more I explored, the more extreme Koh turned out to be.

In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character. Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing.

---
More by this author on Mr Koh here

Sunday, April 19, 2009

Alien Tort Statute - A New Ruling Imperils Firms And U.S. Diplomacy

Rights Case Gone Wrong. By Curtis A. Bradley and Jack L. Goldsmith
A Ruling Imperils Firms And U.S. Diplomacy.
WaPo, Sunday, April 19, 2009

As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period.

The Alien Tort Statute was designed to allow diplomatically sensitive tort cases to be brought in federal court in the hopes of avoiding the friction with foreign governments that could arise if state courts failed to provide a fair hearing. The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.

At first, these cases were largely symbolic. The foreign plaintiffs had little chance of recovering damages from foreign officials; in effect, victims of human rights abuses used U.S. federal courts to criticize foreign governments. But the character of this litigation changed dramatically during the past decade. Plaintiffs started suing corporations on the theory that the firms "aided and abetted" foreign regimes and should be liable for those regimes' actions. These cases are not merely symbolic -- the U.S. corporations have deep pockets and U.S. bank accounts -- and present enormous opportunities for judicial meddling in foreign relations.

The South African case, brought by class-action attorneys many years after apartheid ended, is a dramatic example. The South African government opposed the litigation on the grounds that it would interfere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a 'victor's justice' approach to the crimes of apartheid." The Bush administration's State Department opposed the lawsuit, arguing that it "risks potentially serious adverse consequences for significant interests of the United States" by threatening international economic relations as well as political relations with South Africa and other countries whose firms are defendants.

This should have been enough for dismissal. Five years ago, the Supreme Court said in reference to the South Africa litigation that "there is a strong argument that the federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Yet the New York court, unpersuaded, concluded that allowing the lawsuit to proceed "would not contradict American foreign policy in a manner that would 'seriously interfere with important governmental interests.' " Thus it supplanted its foreign policy views for those of the federal government and refused to respect South Africa's efforts to move its society forward.

More significant, the court ruled that firms were liable for a foreign government's human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government's illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.

The underlying acts associated with apartheid are abhorrent. But it is crass retroactivity to say that these firms are legally responsible for actions of the South African government. Under the New York court's standard, a great deal of global investment in the developing world would now be subject to U.S. judicial scrutiny.

So what can be done about this sort of litigation, which threatens to transfer billions from U.S. firms doing business abroad to plaintiffs' lawyers and their foreign clients? Lower courts won't resolve an issue they created. The Supreme Court's single ruling on the statute in modern times provides little guidance. The high court declined to review an earlier iteration of the South African case because four justices who owned stock in defendant companies recused themselves, precluding a quorum.

The executive branch is unlikely to press for reversal. President Obama recently nominated Yale Law School Dean Harold Koh to be legal adviser to the State Department, the government office that presents the U.S. view of these cases to federal courts. Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.

That leaves Congress, which has never hinted that corporations should be liable in these cases. Lawmakers have also given foreign governments, including South Africa's, statutory immunity from cases such as the apartheid litigation. Courts circumvent this immunity when they hold liable secondary actors not directly responsible for the abuses. Much worse, these lawsuits threaten to deepen the economic distress of U.S. and foreign firms by imposing an enormous tax on investment in developing countries at a time the world desperately needs such investment. Judicially made corporate human rights litigation is a luxury we can no longer afford.

Curtis A. Bradley is a professor at Duke Law School. Jack L. Goldsmith, a professor at Harvard Law School, has participated in Alien Tort Statute cases in support of defendants.

Thursday, February 19, 2009

What to Do With the Uighurs?

What to Do With the Uighurs? By Matthew J. Franck
Bench Memos/NRO, Thursday, February 19, 2009

Back in October, Judge Ricardo Urbina of the federal district court in D.C. ruled, on a habeas petition, that 17 Uighurs (Muslims of Turkic ethnicity from western China) held at Guantanamo must be released into the United States. The government no longer considers the Uighurs to be enemy combatants—i.e. included among those against whom military force was authorized in 2001—but neither does it wish to see them come stateside, for very good reasons (like their membership in a group our State Department lists as a terrorist organization). And sending them back to China looks like a sentence to torture and death at the hands of the Chinese government.

So clearly the Bush administration—as now its successor the Obama administration—had a dilemma about the final disposition of the Uighurs. But it was judicial activism of the worst sort for a judge to order the release of these men into the U.S. Thus it was good news yesterday when a three-judge panel of the D.C. Circuit Court of Appeals unanimously overturned the district court ruling. One of the three appellate judges, though, Judith Rogers, concurred in the judgment on grounds that Judge Urbina had merely acted hastily; Judge Rogers would appear to be ready to release the Uighurs into the U.S. after a couple more questions are answered.

Thank goodness, then, for Judges Arthur Randolph and Karen Henderson, who held (in Randolph's opinion for the court) that there is no power presently in the hands of federal judges to admit aliens to the United States whom the political branches of government have not seen fit to admit under relevant immigration laws and procedures. The Uighurs, Randolph pointed out, haven't even applied for admission to the United States under any immigration rubric. And never in our history has a federal court fashioned an extra-statutory ground for ordering the entry into the U.S. of an alien kept out of the country by the government.

Judge Rogers argues that the majority vitiates the Supreme Court's Boumediene ruling granting the Guantanamo detainees the privilege of habeas petitions in federal courts. She might better take that complaint to Justice Anthony Kennedy and his colleagues in the Boumediene majority, who created this mess. As Judge Randolph notes, it is one thing to say that a habeas-wielding court can order someone's release from detention—as Boumediene seemed to say of Gitmo detainees. But it's another thing to say that a court using habeas powers can order someone's entry into the U.S. in defiance of our immigration laws and of the policymakers who implement them. Not for the first time, the D.C. Circuit finds itself dealing with a crapstorm originating above them in the Supreme Court.

Does this mean Boumediene is a dead letter? One can hope so, but I doubt it. It does mean that while this matter is left to courts, easy answers won't be forthcoming. And it means that President Obama—who can enjoy this moment as the named respondent in Kiyemba v. Obama—has the ball in his court now. Close Gitmo? Sure. Then what?

Maybe he can brainstorm up a solution with that other legal genius, Anthony Kennedy.

Friday, February 6, 2009

Andrew Napolitano's Imaginary Constitution

Andrew Napolitano's Imaginary Constitution, by Matthew J. Franck
Bench Memos/NRO, Friday, February 06, 2009

Today's Wall Street Journal features an exchange on whether the government should cap executive compensation in companies receiving federal assistance. Harvard law professor Lucian Bebchuk is for 'em—he thinks, indeed, that they should be more stringent than the administration proposes—and former New Jersey judge Andrew Napolitano is agin 'em. Napolitano would have the better argument if he would stick to what's really wrong with compensation caps—that they're economically counterproductive, politically unwise, and morally objectionable as a species of envy-driven vindictiveness.

But Napolitano can't leave well enough alone. He adds the argument that compensation caps are unconstitutional. Why? "[B]ecause freedom of contract is protected by the Constitution." Oh, really? Where? For about 40 years, from the 1890s to the 1930s, the Court protected (inconsistently, to be sure) something it called "freedom of contract," but it was based on an illegitimate reading of the due process clauses that was cut from the same "substantive due process" cloth that gave us the protection of slavery in the Dred Scott case and of abortion in Roe v. Wade. You don't have to be a fan of the New Deal to recognize how right the Supreme Court got this one when it gave up on this line of reasoning in 1937, with Chief Justice Hughes saying, "What is this freedom? The Constitution does not speak of freedom of contract."

Napolitano doesn't even attempt to defend his remark about "freedom of contract," but instead moves immediately to saying that compensation caps "also constitute a taking" prohibited by the Fifth Amendment. It has been a hardy perennial in the imaginary constitutional garden of the libertarians to say that all manner of taxes and regulations are "takings" without "just compensation" ever since Richard Epstein of the University of Chicago published his book Takings in the 1980s. But this reading of the Constitution is as insupportable as "freedom of contract" under "substantive" due process, and invites rampant judicial activism—only substituting conservative activism for the liberal variety. All sorts of government regulations of the economy favor some behaviors over others, impinge on people's earning power, and thus in some extremely remote sense "take" resources people would otherwise acquire or keep. The Epstein-Napolitano version of the Constitution would sweep like a scythe through good regulations and bad ones, blatant ones and subtler ones, and without any basis in the original understanding of the document.

The idea of executive compensation caps is a very bad one on all sorts of policy grounds. It is also unjust. But injustice and unconstitutionality are not the same thing, try as Napolitano may to equate them.

Saturday, January 3, 2009

Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III

Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III, by Nelson Lund & David B. Kopel

December 1, 2008

Abstract:

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep and bear arms is in the Constitution, and the right to abortion is not. Contrary to Judge Wilkinson, the genuine conservative critique of Roe is based on the Constitution, not on judicial "values." Judge Wilkinson, moreover, does not show that Heller's interpretation of the Second Amendment is refuted, or even called into serious question, by Justice Stevens' dissenting opinion.

Part II shows that Judge Wilkinson himself does not adhere to the "neutral principle" that he claims to derive from "judicial values." Under the principle of judicial restraint that he articulates, many now-reviled statutes, including the Jim Crow laws of the twentieth century, should have been upheld by the courts. Judge Wilkinson does not accept the consequences of his own supposedly neutral principle, preferring instead to endorse or condemn Supreme Court decisions solely on the basis of his policy preferences. That is not judicial restraint. It is judicial lawlessness.