Confirm Already!

During the entire Bush presidency, the federal bench has suffered a shortage of jurists. Why? Bush's opponents refuse to confirm nominees. This was the issue that first started me blogging. So here's a link to the latest. Another squeaky-clean gentleman has made it to the federal bench, this time our own Fifth Circuit. Being white, male, and conservative, you can be sure every secret he ever had was dragged into the light and examined. He must be the hallmark of virtue.

Read This Blog at Your Own Risk.

Okay, this is just crazy. Seriously. I was tagged for my vocabulary, but I must note that not a single word was actually a "cuss" word. I just nailed some heavy subjects, apparently.

Another Pen for Western Culture: 1. What Happened to General Motors? Anti-Trust Law

Another Pen for Western Culture: 1. What Happened to General Motors? Anti-Trust Law

Afghan Man Faces Death Penalty Because He Converted to Christianity

And so what, right? What business is it of ours? When did the U.S. become the policeman to the world?

Well, we certainly are not that. But the leaders of all nations negotiate and discuss matters within the apparent sovereign control of other nations. And since 1998, intervening on behalf of the persecuted around the world has been the official U.S. policy--whether Presidents like it or not.

Ray Nagin Robs Citizens of Both Guns and 2nd Amendment Rights.

Do you believe in the Second Amendment?

A well regulated militia, being necessary to the security of a free state,
the right of the people to keep and bear arms, shall not be infringed.

If you support the Second Amendment, you are part of a shrinking population. Law professors, law students, and liberals of every stripe have been disparaging the right to bear arms for years. Possessing arms is presently illegal in Washington D.C. and other cities. But New Orleans has taken the destruction of a fundamental freedom to a new level:

Officers of Sin City went around after Hurricane Katrina and forced law-abiding citizens to surrender their firearms.

Outrageous or justifiable, what do you think?

(I won't keep you in suspense. I think it's ludicrous. Never do the people need their guns more than when the city is destroyed and law enforcement is nill.) I posted a few other thoughts here.

Six US states plan to criminalize abortion this year.

... But can they do that? And even if you're no fan of Roe v. Wade, should states pass laws just to force a slightly conservative Court to revisit a bad decision?

I say no.

I consider abortion murder. But you don't battle it by destroying the American legal system.

I posted my comments and further information here.

Congratulations, Alito; Congratulations, United States.

Ann Coulter says it well. On her a law degree has not been wasted. . . .

Alito's Day One and the 1960s.

Drudge has a report on the first day of the confirmation hearings for Judge Alito. I like a few quotes. The following comments from Alito are self-explanatory.

"A judge can't have any agenda, a judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client," said Alito, the 55-year-old appeals judge who is President Bush's choice to succeed Sandra Day O'Connor for the swing seat on a divided high court.

Specter made a good observation.

A number of the opening statements by the Democrats sounded more like indictments than opening statements," he said.

Yeah, the always do. What's up with that? Is it always about 'me' for politicians?

On Nightline, they played a clip of Alito discussing his dis-ease with the behavior of his peers on college campuses in the 1960s. His complaint struck me as no surprise. What is more interesting is that the guys on ABC considered this "taking a swipe" at the 1960s, as if Alito were somehow denigrating something we all believe in. (But would they care if he burned the flag? Or, God forbid, suggested such behavior was never what was intended by the phrase 'freedom of speech.')

Their response to mild observations about the 60s say something about the guys at ABC--and their perception of viewers. Student radicals in the 1960s burned buildings, turned protests into riots, fought with campus admistrators for "a place at the table," lowered standards, succeeded in getting grades abolished and and damaged universities hundreds of years in the making. Contrary to the way the 60s appear on TV and in countless articles by the true believers who really thought the Age of Aquarius was going to usher in a whole new world, the 1960s was primarily a time of destruction and unrest, of the throwing off of morals and societal conventions (both sides agree on that--but to some of us, a rejection of morality is not the political equivalent of a people's revolution. Alfred Kinsley and streakers and stoners and arsonists --this was not the Boston Tea Party, much less the Constitutional Convention. The decade did not produce a single George Washington, Thomas Jefferson, John Adams, Patrick Henry, Paul Revere, etcetera. And while Martin Luther King and Rosa Parks may have been heroic, they were no more in favor of campus unrest than anyone else. In other words, Alito's admittedly mild condemnation of the period had nothing whatsoever to do with the real and meaningful struggles to improve race relations in the South.)

On that note, I have got to get back to the insightful book--and chronicle of the 1960s by one who in high school had argued extensively that the government should take over all businesses (yes, he used to be a liberal)--Slouching Towards Gomorrah, by Robert Bork. He was a law professor at Yale when that school was beseiged by students and the president capitulated to various demands (for which Bork thrashes the man).

NEW URL for a NEW-ish home page.

Now that Harriet Miers' 15 minutes are over, I changed the URL on the other page. And yes, it is now my home page.

Pontius Pilate: Doomed by the Marriage of the Executive and Judicial

In his Divine Comedy, Dante locates the Roman governor, Pontius Pilate, just inside the gates of hell, condemned forever merely for his cowardice. In the Biblical accounts, Pilate repeatedly argues that Jesus is innocent, or if guilty of anything, he nevertheless does not deserve death. In reading my Chronological Bible--a fascinating way to read the Bible--I noted the following:

1. Four times Pilate insists that he can find no basis for a charge against Jesus (once for each gospel).
2. Two times Pilate argues that Jesus has done nothing to deserve death.
3. Two times he asks, "Why? What crime has he committed?"
4. Once even his wife appears and begs Pilate to "have nothing to do with this just man."
5. Twice the writers note that, "Pilate knew it was out of envy that the chief priests handed Jesus over to him."
6. But Pilate wanted to satisfy the crowd. When he saw that an uproar was starting and "with loud shouts they insistently demanded that Jesus be crucified, . . . their shouts prevailed."
7. John notes that Pilate was afraid, "and was even more afraid."
8. Finally, Pilate washes his hands and declares, "I am innocent of the blood of this just man." Then he sends Jesus to be crucified.

Fourteen pieces of evidence support the claim that Pilate believed Jesus to be innocent. The only evidence Pilate found Jesus guilty is the crucifixion itself. Given the context, it cannot reasonably be argued Pilate found any guilt in Jesus. He was afraid of the people, afraid of an uproar. He was afraid of what would happen if he did the right thing.

Pilate's was the kind of miscarriage of justice that can occur when judges become politicians. Our legal system, one light years ahead of that of Rome, however sentimental people may be about the system that gave us the Caesars, has a number of safeguards built in to prevent judges from playing dual roles. A judge should be able to execute justice and follow the law with no fear of political reprisals.

In more practical terms, this is another reason why (1) federal judges are not elected, (2) why nominees for the federal bench are not to be quizzed about political issues that may come before them (i.e., why they're not asked political questions), and (3) why the federal courts, especially the highest court, maintain a "cult of silence," keeping much of their daily activity quiet, and working hard to prevent justices from becoming celebrities.

The title above speaks of the marriage of the executive and judicial. In other words, Pilate was unable to render justice because his power as judge was a threat to his power as executive. Pilate had a separation of powers problem. And even with all our checks and balances, our system can create similar problems, such as the 176 pardons issued on his last day in office by President Clinton. It was not his inability to judge rightly that caused the lame duck to pardon so many rich criminals, but his love of executive power and his interest in donations to causes that would promote that power and keep its legacy alive, particularly the Presidential library.

Beware the "Living Document"

Another blogger posted some great material from that most unlikely source of greatness, the Ninth Circuit:


The mere fact that the living constitutionalists of recent memory devoted themselves to an expansion of rights offers no guarantee that the next generation of living constitutionalists -- similarly unconstrained by the inconveniences of constitutional text and history -- will be favorably disposed to maintaining such an expansion of rights.


You can read more by clicking here.

Humanizing the Rule of Law: a Judge's Discretion.

Lawsuits do not follow the scientific method. The system promotes justice, not actual truth. Juries (when they are used) are the Finders of Fact, and make all determinations about the facts of a case. With minimal oversight, jurors determine what happened. Judges answer Questions of Law, including jurisdiction, limitations, what laws apply and how to apply them. Questions of law can be reversed on appeal--they usually won't be, but you've got a shot. The same goes for a third set of determinations, those based on the judge's discretion. But when a judge uses his discretion, the standard of appeal is high. The appellant must prove the judge abused his discretion, a tough standard indeed.

But why does a judge have any discretion? What if we just applied the law the same way in every case? (Or do we already?) The answer is, Discretion is necessary because it allows for the infinite permutations in the facts of various cases. Things just do not work out the same way every time. As important as respect for the rule of law is, judges have to be allowed discretion in many matters. To illustrate, I thought rather than cite a boring ol' lawsuit, I'd tell a personal story--perhaps you will agree it is a situation in which discretion might have produced a better result....

Open Letter to the King of Torts.

Throwing out old papers, I ran across a letter from the King of Torts, Joe Jamail. Jamail, who made a name for himself when he won the largest verdict in history, 11 billion dollars in the case of Texaco v. Pennzoil, had sent me (and several thousand of my Texas colleagues) a letter about the election of judges. Jamail asked us to join his efforts to change the rules governing the election of judges in Texas. He wanted a system in which judges would be appointed rather than elected. To me, that spelled corruption. But I was wrong.

A greater corruption is bred by the election of judges. Sure, the people have a voice. But the nature of politics corrupts the system.

1) Judges end up asking themselves how their rulings might affect their reelection.
2) Judges have to choose a party. In Texas many are now affectionately called "RINOS," or Republicans In Name Only, because they obviously switched parties only to keep their jobs.
3) Having to be reelected means having to raise money for a campaign--lots and lots of money. And where does that money come from? Law firms, of course. I'm involved in a number of lawsuits filed in an East Texas County, and it's never good for the defendants. In fact, defense attorneys usually walk out of hearings shaking their heads, marveling at inexplicable rulings. It often seems the judge is not even listening to the defense position. And everyone gathered at the elevator wonders aloud whether it might actually be true--could Judge M______ actually be "bought and paid for" by the rich plaintiffs' firm that funds his reelection? (And that's not to say defense firms don't donate as well and for the same reasons.) Once litigants offered judges bribes. Today their attorneys handle all that with campaign funds. Is bribe too strong a word? Call it quid pro quo--you scratch my back, I'll look out for you in all your cases next year.

The election of judges breeds corruption. Joe Jamail was right.

Of Lawyer Jokes, Lawyer Ads, & Lawyers as Pit Bulls

I stumbled across an interesting story here. A Florida law firm used pit bulls in a television ad, including their phone number, 1-800-PIT BULL. What do you think, savvy advertising or the debasing of a noble profession? Both? A Florida judge ordered the firm to pull the ads. (Some of us would like to see all lawyer ads pulled.) Lawyers are encouraged to be "zealous advocates." A pit bull is certainly zealous. But with the regular reports of pit bulls mauling and killing children and old ladies, the comparison is monstrous. Give me a shark any day.

One interesting comment on Cliff's blog: "Lawyers themselves do more to shake the public's trust in lawyers than anyone else associated with the legal system." I would say only that lawyers do more than everyone else except those former lawyers now known as judges. Judges today often fail to police the docket and throw out frivolous cases that harass so many innocent parties needlessly. Today judges generally allow parties to pursue motions and causes of action that waste extraordinary amounts of time and money. And lawyers, being zealous, will always do all that they can on behalf of their clients. Many would argue that's their job, even duty. It's up to the judges to hem them in. Sure, the attorneys are responsible. But it's hard not to pursue every conceivable tactic on behalf of your client. What if the argument that is a stretch is the one that wins it? So, it's up to the judges to put boundaries around all this. To often, they fail to do so.

What about lawyer jokes? I like them as much as anyone else--maybe more so. I just don't believe they apply to me, you know? :-) But my favorite jokes are the New Yorker cartoons. If you can't see it, the caption above reads: The ones just out of law school are especially frolicsome.

Thomas: Judiciary Held Hostage by Abortion

Abortion is holding hostage the judicial confirmation process, according to Justice Clarence Thomas. Thomas spoke on these and other issues recently at the University of Alabama.

"I think we all should be honest with one another that the only issue, the central issue in all of this, is abortion," Thomas said, according to the Associated Press. "It's not the other things that people throw out. The whole judiciary now is being held, in a sense, hostage to that one issue."

Thomas said some of his former clerks and other lawyers frequently say they are uninterested in being federal judges because of their dread of possible confirmation fights. "I think that's a problem when the stars are beginning to say, 'Thank you, but no thanks,'" said Thomas, who was confirmed by only a 52-48 Senate vote in 1991.

The current system of seeking to investigate every part of a nominee's life should be changed, Thomas said. "The whole process of trying to ferret out the personal agenda through the confirmation process isn't an endeavor that I think is worth the price we are paying," he said. "I think the only thing it does is rats out the agenda of the people asking the questions."

The above is from Richard Land's summary. But the UA website has a little more info. Thomas compared judges to referees (an excellent analogy), and said senators want 'referees' who will call things in favor of their special interests. "If Crimson Tide fans could vote for referees, they would vote for ones who have never made a call against Alabama, no matter whether their calls were correct. In the same way, the Senate is voting for people who make decisions for or against their interests, instead of deciding whether they are capable of interpreting the law."

More interesting, Thomas said there is no reason to fear judicial activism and that he has never seen a Supreme Court Justice press a personal agenda. I respectfully dissent. Whether you call it activism or the pressing of a personal agenda, judges in numerous federal and state courts have made odd decisions in recent years, decisions that cannot be traced to anything in the Constitution (most of these apply only in limited jurisdictions): The Pledge of Allegiance is unconstitutional, children cannot wear clothing in a public school if the name of Jesus is on it, teachers cannot have a Bible on their desks, private schools can teach public school students about religion during school hours, as long as it happens on private school property, and private schools can borrow public school maps, but can't borrow public school textbooks, the government can take property for any conceivable public good, abortion is a fundamental right, etcetera, etcetera, etcetera.

Finally, the UA Website has more. Judge Roy Moore recently appeared, saying the role of government is to recognize God. (Call me cynical, but somehow I don't see Moore being confirmed by the Senate, where he to be nominated! Nevertheless, he cites persuasive material from the nation's founders.) So why the big-name speakers at the Alabama law school? Well, it's "up and coming" or so I was told by a UH professor. Her comments helped me choose Bama as the publisher of my last law review article, though others were interested.... (The link is just a contents page. Don't bother. Were you a physician-owner of an MRI clinic, you might wish to read the article here. Otherwise, click here for your next stop.) (I can't believe I plugged my own work twice this week! Sorry.)

Rule of Law: Defender of Liberty or Fist of the Tyrant?

Rhetorical question, right? This is one of those questions teachers' phrase just-so in order to be sure everyone knows the answer. Or is it? I read an interesting quote attributed to the magazine of the National Organization for Women: "NOW is the time to drop a boot heel in the groin of patriarchy. NOW IS THE TIME TO FIGHT BACK. NO GOD, NO MASTER, NO LAWS." No laws, huh? Could anyone really espouse such a view? Oddly, the most concise defense of the rule of law that I've read comes from Bill O'Reilly's "Talking Points" for July 20, 2004. (No link--the transcript was e-mailed to me a year ago.) He begins with a discussion of "collective morality," something that, like respect for the rule of law, seems to be passing out of fashion.

One of the reasons the Founding Fathers of this country built Judeo-Christian philosophy into the fabric of the law was because the founders wanted a collective morality in the new nation. That's why vice became crime and why stealing and cheating could get you executed in some places. An early American could die if someone stole his horse or food. Survival depended on cooperation among neighbors.

The founders also knew that the fledgling government couldn't enforce the law. There was no federal police. And only a very disorganized military. The people had to police themselves, basically. Therefore, the founders wanted all Americans on the same page morally.

That's all gone now. There's no collective morality in America any longer. Today each citizen is deciding for him or herself what laws they'll obey and what laws they will not obey. And in some cases, society is actually going along with it.

Of course, the Rule of Law is a good thing. If it sounds cold or impersonal, consider the alternatives. That's not to say our collective faith in the American legal system is not weaker than it once was. It is. I place myself among the 70-odd percent who in a recent poll said they would not trust the legal system to take care of them if they were sued. I would be nervous, to put it delicately. I know--I've been sued. And I "easily" defeated the baseless charges. But it was a nightmare. In fact, between the suit and the pro-se plaintiff's being thrown out of court, I enjoyed several seasons of nightly crime dramas packed with terror and adventure, each episode ending with my killing someone who threatened me and mine. Nightmares, some would call them--but being woken nightly by the pounding of my young heart was thrilling in its own way.

But the rule of law is vastly superior to the rule of man. Would you trust Kim Il Sung or Saddam Hussein or Stalin or Mao or Pol Pot? What about King George? Or the Louies? Or Janet Reno? Or John Ashcroft? Or Bill or Hillary or George? Or your boss? It doesn't matter who is in charge, the rule of man is unreliable. People are unreliable. I've heard good things about some of the people above, but what if Ashcroft just didn't like the cut of your gib? You know, he get's a bad feeling about you, things don't go well, you're nervous when you sit down with him, and you come off as defensive? Even good, well-intentioned men make mistakes. Only the rule of law can be trusted. And yet, the Rule of Law is under assault all over our nation, not only by the accused, or by politicians, or the press. Often it is those who have sworn to uphold and defend the law who have become its greatest enemies: the lawyers and judges.

Like Ashcroft, another man I'm sure I would like personally but whom I fault on this point is Alabama's Judge Roy Moore. Everything he did in building the Ten Commandments monument and placing it in the courthouse was democratic and entirely legal. But I can't accept the notion that it's okay for the Chief of the state supreme court to defy the orders of a Federal Court. Even if that court was wrong--and it was. 'Time was' when allegiance to the Rule of Law asked more from a man. And I understand about his obeying a higher calling. Like Moore, I'm with the Apostles: we must obey God rather than men. But in this case, I think he was wrong.

More obvious is the naked abuse of power coming out of Travis County. Ronnie Earle, Travis County DA, may seem to have just made a name for himself when he secured an indictment against Tom DeLay. Whether DeLay is innocent or not, consider the following: In September of 1993, Earle indicted newly elected Kay Bailey Hutchison on charges of "official misconduct and record tampering." The judge questioned the admissibility of Earle's evidence, would not let him drop the case, and the senator was acquitted. (But why the charges? Could it have something to do with the fact that this was the first time since Reconstruction that Texas had two Republican senators at the same time?) Then in November, 2004, Earle wrote an op-ed for the NY Times about DeLay--while Earle was still in the middle of his investigation. Fast forward to September, 2005. Earle first secures an indictment against DeLay based on the violation of a statute written after the violation supposedly occured. Earle has to start over and rearrange his dominoes. September 30, 2005: Second grand jury rejects Earle's attempt, refusing to indict. October 3, 2005: DeLay is finally indicted--after Earle sees three grand juries in five days. Two days later, the foreman of that grand jury admitted that press coverage of the DeLay matter had convinced him of DeLay's guilt before the grand jury ever heard the case. (Earle is also intimately tied up with Ben Barnes, Bill Burkett, and Dan Rather, the triumvirate of Rathergate and the forged National Guard documents.)

Set aside for a moment the judges, especially the activists I've discussed elsewhere, and prosecutors motivated by something other than reverence for blind justice. Consider America's Favorite Senator. The Vietnam POW, the one who claims he never surrendered anything in five years of torture? The man who can Walk the Line better than Johnny Cash (the line between the parties, that is)? McCain has authored an anti-torture bill that over 90 Senators appear ready to endorse. The bill would bind Americans only, obviously. Enemies can continue to torture at will. But we won't. Because, according to McCain (and you can't question him, right?) torture doesn't work. Sure. That's about as convincing as people who swear rape has nothing to do with sex. Nothing at all. Oh yeah, except that it is sex.... So McCain says torture does not work. And the hundreds of men in Washington who deal in such matters won't come out against him. War hero that he is. (The Viet Cong did manage to have McCain sign something, or so goes the rumor. I have not verified it.) Anyway, torture doesn't work. So we are against it. And what about the doomsday question? There is a ticking time bomb somewhere, and if we torture Mahmood, he'll tell us where it is and save millions of lives? Some suggest including an exception for such a case. McCain says an exception is not neccessary. Instead, the Senator suggests "Let's just call all torture illegal, but in the case of a ticking time bomb, we'll be so thankful, no one will prosecute." HUH?

First of all, either way, you have now admitted that of course, torture does work. Right? And we all know it does anyway. Some are stronger than others, but people have their limits.

More importantly (for this discussion) who ever heard of "call it illegal, but we won't prosecute"? What about the rule of law? It's one thing to decide not to prosecute when a set of facts presents itself. But to draft a law with some sort of understanding that you won't enforce it except when you feel like it? Is that even a law at all? Or are we talking about a suggestion, now? And are potential torturers/rescuers of millions supposed to stop and calculate? Hmm. It's illegal and I could go to jail, and my name and family be ruined. But if Mahmood knows something, I just might be able to escape life in prison.

This kind of legislation is preposterous. And the far-reaching ramifactions have been weighed about as carefully as Mr. McCain's last wild ride, campaign-finance reform.

But for me, the real problem is that anyone would consider passing a law that everyone knows is designed to be enforced in some willy-nilly fashion, according to the mood of the country at the time. Hundreds of laws are drafted every year that provide for countless exceptions and special circumstances. But McCain wants the Nobel prize for his black and white rule: all torture is wrong. (He clearly wants something. There's more going on here than one man's crusade against torture...) Many better-written laws are horrible to read, but at least the exception to the exception to the exception to the exception* can be sorted out and enforced consistently. There is a reason why we portray Justice as Blind. Forgive me if I can't get excited about the idea that a law will be passed without including the one exception all parties agree on, and in place of that exception the drafters offer us only their hope that those in power years later will remember the original intent of the framers of that law. Gentlemen, I seem to recall Senator McCain, God rest his soul, once suggested we might not want to prosecute the man who used torture to save the world. After all, without the criminal acts of the defendant, this Capitol would not be standing here today. (*The Stark law, for one, actually has such a set of baffling exceptions.)

Bill O'Reilly concludes:

Martha Stewart is Exhibit A. There's no question she broke the law by lying to the feds about her ImClone trading deal. They had her cold. But because Ms. Stewart herself doesn't consider lying to the feds a crime, she believes she's innocent. President Clinton also took this tack during the Paula Jones fiasco. The city of San Francisco believes it has the right to violate the law [in the same-sex marriage debate] So does the town of New Paltz, New York. Alabama Judge Roy Moore defied federal law over the Ten Commandments display. And the list goes on and on.

As Gandhi demonstrated, there is a time for civil disobedience, but Gandhi wasn't lying or violating any law passed by a legitimate legislature. Martha Stewart mentioned Nelson Mandela in her comments. And she really believes she's a martyr along those lines. Ms. Stewart's vision of right and wrong is her own. And she will defiantly take that vision to prison.

Millions of Americans use drugs, harbor illegal aliens, gamble illegally, and generally do whatever they want, because they don't like the law. That is anarchy. And if the trend continues, America will lose strength.

Martha Stewart is an arrogant, selfish woman. She sees the world only from her narrow point of view. The fact that so many other Americans also subscribe to the "I'll do what I want" philosophy is a strong signal of danger ahead. And that trend can only help those who want to destroy us.

A related note-- Consider The Rule of Law in the Wake of Clinton. Great book and interesting analysis of this problem in more areas than you can imagine; or, it's hard to imagine any president finding so many different ways to assault the rule of law, to flaunt it as though it did not apply to him. But then, it never really did, did it?

Bork Becomes a Verb

I've pondered the above title for some time. What does it say about a man when his name becomes another part of speech--or takes on a life of its own? With the exception of brands (Disney, Ford) or overt marketing (Bush Doctrine, Bush's War), what does it mean when one's name takes on a life of its own? Consider Reaganomics, for example, and a few others. (Add a few to the comments--what am I missing?)

Reaganomics--any economic plan that promotes low taxes, low social-services spending, and high military spending --which then contributes to low interest rates, low inflation, and large budget deficits.

Jeffersonian--Jeffersonians, so named after Thomas Jefferson, support a federal government with greatly constrained powers, as directed in the original U.S. Constitution, and state and local governments that are defenders of the rights and property of citizens. Jeffersonians have also held that the American economy should rely more on agriculture for strategic commodities, than on industry, which can easily be affected by foreign competition and technological change. Jeffersonians recognize both private and common property.

Madisonian--The Madisonian model is a fundamental part of the U.S. Constitution. Developed by James Madison, the model attempts to thwart factional tyranny in the U.S. government by establishing a system of separate powers, checks and balances, and federalism. The writings of French political theorist Baron de Montesquieu heavily influenced this vision for government.

But I can think of only two men whose names have actually become verbs, one of whom is Julius Caesar--whose name is really only an adverb at best (at least in English).

Caesarean--the delivery of a fetus by surgical incision through the abdominal wall and uterus (from the belief that Julius Caesar was born that way).

Consider this CNN transcript from July 1, 2005.

Here's special contributor Frank Sesno.

(BEGIN VIDEOTAPE)

SESNO (voice-over): The culture wars rage on, abortion, gay rights, the role of God in schools and public places, which is why the political battles over federal judges in the Senate confirmation process were so impassioned and just the warm-up for the real prize, the Supreme Court. Just ask this man.

BORK: I do, Mr. Chairman (audio from video clip).

SESNO: Judge Robert Bork. A judicial conservative and outspoken critic of activist judges, his nomination to the Supreme Court in 1987 broke nasty new ground in America's culture wars.

I visited with him in his suburban Virginia home to get his take 18 years later on the court, culture and his own confirmation hearings. (on camera): How did that feel, personally, to be the first one out of the cannon?

BORK: Well, I knew what was happening. The core of the issue was, they were afraid I would vote to overrule Roe against Wade. And they were quite right. [This position is different from his book, published fifteen years ago.]

SESNO: And your name became a verb.

BORK: My name became a verb. And I regard that as one form of immortality.

SESNO: To Bork means what?

BORK: I think to attack with -- to attack a person's reputation and views unfairly.

SESNO (voice-over): Bork on Bork. Like many conservatives, he feels the court is enacting law, not judging it, going way beyond what the framers intended or the Constitution allows.

BORK: The Supreme Court has become a major cultural force in this country. The court is clearly on the path to homosexual marriage as a constitutional right. They have been quite hostile to religion, driving it from the public square as much as they can.

SESNO: Whether it's court's decision striking down a ban on gay sex in Texas or forbidding organized prayer before high school football games, Bork says these justices for life have simply gone too far.

BORK: It's the one branch of government as to which there are no checks or balances.

SESNO: Separation of powers is being compromised, Bork argues, along with what he calls America's moral environment.

BORK: When they begin to say that the most blatant forms of pornography, including computer-simulated child pornography, is protected by free speech, they're changing the culture of this country.

SESNO: Sentiments which explain the passion and the frustration, especially among those conservatives who feel their political gains over the past two decades, from the White House to Congress to vast swathes of the country, have not been matched in the courts, a branch of government, they argue, out of sync with America.

So, White House officials have indicated they'll be looking for genuine judicial conservatives in the future, which is why Robert Bork believes his name will again become a verb in the national debate over the courts and culture and why interest groups and key senators have already mobilized along the same battle lines drawn nearly 20 years ago, when Planned Parenthood took out ads proclaiming Robert Bork's position on reproductive rights, "You don't have any," and some 180 civil rights and civil liberties groups joined forces to stop Bork.

UNIDENTIFIED MALE: The yeas are 42. The nays are 58. The nomination is not confirmed.

SESNO: And they succeeded.

BORK: Nobody had ever seen radio ads, television ads, newspaper ads, and so forth by -- particularly by these activist left-wing groups. I think that started it and I think caused a lot of bad feeling between the parties.

SESNO (on camera): What's the likely scenario for future Supreme Court nominees?

BORK: Agony.

SESNO: You know something about that.

(LAUGHTER)

SESNO: And is it inevitable that future Supreme Court nominees are going to get Borked?

BORK: Oh, yes.

SESNO: Part of the culture wars?

BORK: Yes.

SESNO: Wars that really are about America's future. Think of it this way. If the next justice serves as long as William Rehnquist...

CHIEF JUSTICE WILLIAM REHNQUIST, U.S. SUPREME COURT: Will you raise your right hand, Mr. President?

SESNO: He or she will still be writing opinions in 2038.

(END VIDEOTAPE)

Finally, Stuart Taylor of the National Journal has a great piece called "Borking Alito." It provides an excellent contrast between outrageous claims and the reality. I heard it read by the most-excellent Laura Ingraham, so I didn't bother buying the full article....

Should You Vote for Judges?

Today's Houston Chronicle addresses an interesting issue: the election of judges in Texas. Ours is one of only 17 states to persist in the presumably democratic process--33 allow governors to appoint judges.

So what do you think? Voters are reluctant to give up the opportunity to vote on anything, and I understand that. But, if you're like me (and live in Texas), only one of the amendments on last week's ballot was crystal clear. The other five I could decipher, but I did not otherwise feel I was well-enough informed to vote on them. But I did. Sound familiar?

But when it comes to electing politicians and legislators, my views sit so squarely within the views of one party that I can generally vote on that party's candidate and trust that I have made the best decision. But that's the legislature--a place where a politician's personal views, his morality, his beliefs, and experiences are all relevant and helpful. But what part does any of that play for a judge? And more importantly, what role should such considerations play? None. But I can tell you this much: most believe Republican judges are going to be tougher on crime than their Democrat counterparts. I think that is probably true. But (dare I say it) some of them may be too tough (read biased).

For example, when I interned at Houston's First Court of Appeals, I brought a troublesome case to a judge:

Greenhorn: This case is about prior crimes. The DA talked and talked and talked about prior crimes--and this was before the jury had ever determined guilt or innocence. But you see, Judge, we know for a fact that Casimir is guilty. I mean, I've read the trial record, and there's no question that he did it.

JUDGE GOP: But Steve, remember--they're ALL guilty. We're just here to audit the process, to ensure that they get a fair trial....

What the Judge had to say was probably less of a problem than you think. Once you adjust to the fact that they're all guilty--and put that out of your mind, you can honestly evaluate the process. And, as in the Thomas More illustration cited previously, what the judge thinks about the guilt of the accused should have no bearing on his decision.

But requiring him to run for office over and over means he is not insulated from the pressures of politics. It is possible to have good elected judges. But what gets a man elected? Personality? Charisma? Speechmaking? Networking? None of that is in any way related to good judging. Good judging comes from a commitment to truth, objectivity, scholarship, and a reasoned application of the law that is blind to the traits of the parties. There is no way an election campaign is going to allow men with these traits to rise to the top. If Supreme Court judges had to be elected--and regularly reelected--who would we have on the bench right now? It's anyone's guess, but I'm going with Ted Kennedy, Jack Kemp, Robert Byrd, John McCain, Hillary Clinton and Rudolph Guiliani (you can add the other three). Isn't it obvious?--

An election campaign--a popularity contest, really--is not the best way to choose objective scholars able to put aside their personal opinions.

I know Texans like to vote on everything. But in order to get better people onto our benches, we should vote to amend our state Constitution to have judges appointed, not elected.

*P.S. Casimir did get his new trial, no thanks to his attorney's useless appellate brief.

If You Read Only One Book This Year . . . A Review of Robert Bork’s The Tempting of America: The Political Seduction of the Law

(**I wrote this while still in law school and published it in a law-student paper. When I pasted it here, the formatting crashed.)

"In the Past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. . . . It is coming to be denied that anything counts, not objectivity, not even intellectual honesty, that stands in the way of the ‘correct’ political outcome."

With these words Justice Bork opens his book on American jurisprudence. His introduction goes on to describe the greatest threat to the law today:

In the law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice . . . is not embodied in a statute or any provision of the Constitution. He then must choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Bork argues that these result-oriented decisions have moved holdings steadily to the left for the last half century. As a result, many Americans do not like those outcomes and are no longer “deceived by the claim that those results are compelled by the actual Constitution.” Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public. And conservative activism would only make it worse.

Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . [T]here are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.

After I read Bork’s book, I told friends there were few law courses I would not trade for it. But, to be frank, I am a conservative and expected to enjoy Bork’s opus. Yet the book should be worth the reading for anyone interested in the law. It is likely the most complete and well-reasoned statement of the conservative position (and arguably the historical “American” position) on judicial philosophy, legal practice, and several key political doctrines, including the separation of powers, federalism, and the Madisonian system.

Bork answers a likely question: “What does it mean to say a judge is bound by the law?” It means he is bound by the only thing that can be called law: the principles of the text, whether Constitution or statute, as generally understood at the enactment.” He notes that the lay reader may wonder at this statement. Isn’t that obvious? “Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools.”

Here, Bork argues, commonsense is sound. He quotes Justice Story. “A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation.” Bork resumes: “Story might have been addressing today’s constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the Constitution or the American public. That, surely, is the point of their efforts.”

Some of my most engaging law school professors saw everything as relative, and the law as an evolutionary force, changing the times and changing with the times. Any appeal to original intent is an appeal to something not only irrelevant but also unknowable. (Of course, the original intent of a contract is evident from the four corners of the document, right? But that’s not possible with the Constitution apparently, nor are the numerous speeches and ratifying conventions any help.) Bork concedes a distinction. For hair splitters, sure—original intent “calls for speculation.” But original understanding is not at all hard to determine. The reason so many are unhappy with the doctrine of original understanding is not—as they claim—that they have philosophical questions about epistemology. Activists deride appeals to original understanding because they fear such a rule would never have won for them the great civil rights cases of the late 20^th century—and those they hope yet to win.

But Bork disagrees. Here his book becomes a tremendous resource. He examines the history of the Court and most of the great cases, explaining that many revisionist cases could have reached the same results through an appeal to original understanding and would have strained logic less in doing so. Brown v. Bd. of Education is the most stunning example Bork cites of a case in which the Court felt compelled to look outside the original understanding of the Constitution when it did not need to. The result is that the century’s most immediately, even dangerously controversial decision was based on an argument few could accept. It need not have been this way. Bork’s discussion of the this point alone will be worth the price of the book for some.

Bork has no raging desire to see the poor cases overturned, however. Out of respect both for stare decisis and the integrity of the Court itself, Bork would not even reverse the most badly reasoned case of the 20^th century, Roe v. Wade. To be more precise, Bork places Roe in a group of cases “so embedded in the life of the nation, so accepted by society, so fundamental to the . . . expectations of individuals . . . that the result should not be changed now.”

This brings up another interesting issue. Bork makes the case for judicial integrity, the most important commitment of any judge. The temptation to fudge the law to help bad facts is one the judge must resist, because any time the law is compromised, it is weakened. The judge’s task is simple:

In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter—and it is a task quite large enough for anyone’s wisdom, skill, and virtue—is to translate the framer’s or the legislator’s morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.

Who is Robert Bork to talk about a disciplined judiciary, about personal or professional integrity, some will ask. The second half of his book addresses just that. He describes in detail the nomination process he endured and the lies told about him in the campaign to keep him off the bench. For example, his position in a number of cases was exactly the opposite of the way it was described in the hearings. He received a ringing endorsement from the ABA before taking a seat on the D.C. Court of Appeals. Once there he decided a number of cases in favor of women and minorities. But in the Senate confirmation hearings he was asked, “Why are you against women?” He repeatedly directed Senators Kennedy, Biden, and others to the pages in the opinions proving he had in fact held exactly the opposite. But as they say, a lie told often enough begins to seem true—and such was the case with the lies told about Bork. During one private moment of peculiar candor, Ted Kennedy shook Bork’s hand and said, “Nothing personal.” Then they vilified him.

Bork’s book then, is his public defense. In that it is unique. Not only did the Reagan administration do little to defend him, so unprepared were they for the unprecedented campaign to destroy a judicial nominee, but Bork himself made no public defense.

The public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere before the Senate, even if it meant letting slanders go unanswered.

Toward the end White House strategists plead with Bork and his wife to appear on a Barbara Walters special. “But . . . we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal.” White House advisors thought this a serious mistake; some thought it cost him a seat on the bench. “However that may be, I continue to think that was the right decision.

The entire process of a judicial confirmation was politicized more than ever before in America’s history, but at least I did not contribute to that.”

The Constitution Can Change, But Can Justice Alito?

Senators have announced they will not be able to complete the confirmation of Sam Alito by Christmas, as the president requested. Why not? Because Alito has spent fifteen years writing opinions as a member of the 3rd Circuit Court of Appeals. These must be reviewed. But how long does that take? Considering the number of Senators involved, and the size of the staff of each, how long does it take? Friends of mine, savvy conservatives, suggest a close reading of every opinion is neccessary. But how close? What exactly are we looking for?

How do you evaluate the qualifications of a prospective Supreme Court Justice?

Are we looking for a man who will vote the right way on each issue? Are we reading these legal analyses to sift them, hoping a campaign promise or political platform will emerge? No. That's for politicians. A justice is not a politician. He is not a legislator. His personal opinions and policy positions on various issues are irrelevant. He makes no campaign promises. He puts on his black robe owing nothing to anyone. He has no promises to keep, beyond that highest promise to faithfully defend the Constitution. And the title of this post may be misleading, but maybe it isn't. Can Alito Change? Will he be another David-the Disappointment-Souther? Well, it makes no difference to me if Alito's opinions change. But assuming he has the required judicial character and philosophy (which Souter never had), those things better not change. My accountant needs to be able to handle basic addition and subtraction (especially subtraction). And judges need to be able to read two dozen written approaches to the same problem, evaluate each in light of the other and in light of the Constitution and settle which approach is required by that sublime document. Is that too much to ask? Again, it's a math problem.

The Supreme Court generally faces only two questions:

Does the Constitution allow the feds, the state or local government to enact the law that led to the present conflict? And if the law is Constitutional, was it executed in a manner respecting the rights of the parties?

The Court faces two questions, and the entire process, while extraordinarily sophisticated, is really a math problem. The judges' personal opinions, life experience, race, sex, creed, or handicap, golf or otherwise, are all completely irrelevant. Just like in math class.

Prospective Judges should be evaluated based on their scholarship, their knowledge of the law, and their judicial character, i.e., their commitment to objective, im-personal analysis, to following the law and applying it honestly, even when they disagree with the controlling law (the Constitution) as it is written.

And this is where things have gone astray.

The Court became political when its judges stopped setting aside their personal opinions.

What the Court needs today is a panel of judges who will again set aside their personal opinions, and rule according to the written law in question.

I hope nothing I have written elsewhere has created the impression that the Constitution cannot change. The Constitution can change. It can adapt; it can be malleable. It may not be a "living document" as that word is used today, but neither is it written in stone.

The Constitution can be changed. But changing the controlling law when such change is needed, is not the duty of the Court. It is the duty of the legislators. When the Court rewrites the Constitution (not talking here about every opinion's tiny, interstitial changes), the public feels disenfranchised and bitter. Fans of an Activist Court might argue that larger numbers of the public feel disenfranchised when the problems or oversights in the Constitution are left to the stalagtite constitutional amendment process. I won't refute that point here--but I disagree. Either way, changes of the past are behind us. What I'm against is future judicial activism.

In the case of Alito, I think one careful reading of his opinions is all that is required to evaluate his character, scholarship, and temperament. A slower reading, and re-reading, and rereading again smacks of blatant politics, of a party desperately searching for those phrases they can twist, take out of context, or otherwise manipulate in an outright political smear campaign. Call me cynical, but "fool me once...."

The Democratic Process Can Always Beat an Elitist Court

In June the Supreme Court handed down one of the more surprising rulings in recent years, saying a municipality could use its power of eminent domain to take private property not for a public use but for what it construed as a mere "public purpose." In other words, the city could take your house and sell it to another private owner assuming he would put the property to a better use than you, generating tax revenue, for example. I arrived at a deposition in Lufkin that day and it was all the two dozen present were talking about. And none of the lawyers seemed to like the decision, neither those on the left nor on the right. And the son of one prominent local weatherman, formerly of Miami (a little internet discretion) pointed out the obvious:

If no one likes it, there's a simple solution.

Yes, there is. But would the Congress bother? Two weeks later I found myself in a hippie bookstore just north of San Francisco. The ladies behind the counter were apoplectic about the decision. "It's those darn Republicans. They'll take your house and tear it down to put in a shopping mall."

These ladies ran the store, so I knew they would be polite when I elbowed my way into the conversation. They explained that it was the conservatives.

After all, that Sandra Day O'Connor was the deciding vote.

We talked a good bit, and I told them what most Republicans had been saying. They explained how threatened they felt due to the way eminent domain had been used in their area already. And we agreed, an amendment just might do it. (Though an amendment is not required--for the legislature to pass a bill limiting its own power, no amendment is needed. But an amendment is necessary where the legislature seeks to enlarge its own power and limit that of states or citizens. To limit the abortion rights created by Roe v. Wade, for example, an amendment would generally be necessary.)

Today Trevor Bothwell at the Democracy Project has a great piece. Wonderful news, pithy analysis.

The House of Representatives passed the Private Property Rights Protection Act yesterday by a vote of 376 - 38. The bill [not an amendment] essentially repudiates the Supreme Court’s disastrous Kelo decision. It’s a great bill that received strong bipartisan support.

For all you teachers out there [Bothwell is a teacher], this is a perfect example of a lesson for the kiddies on how our system of checks and balances is supposed to work. The Supreme Court uses the Constitution for toilet paper; Congress says, "We'd rather you use Charmin."

When it comes to politics and the law, I like Jonathan Swift's approach. Sometimes you just can't beat a little SCATOLOGY.

There's Nothing Original About Original Intent.

Consider the following. You just came up with the next great widget. Everybody's going to want one--but you can't cover the production costs. So you recruit two venture capitalists and they like your idea. The prototype is impressive and you've got a deal. You shake hands, then stop by the lawyers' office and draw up some forms. Sign and date in the presence of a notary. Deposit the check, and you're in business. Two years pass. A competitor uses reverse engineering to copy your widget, changing it just enough to escape a patent suit. You made a few mistakes and now the money's all gone and you can only sell your stock at a loss. Suddenly you find yourself in court, facing off against your former partners. At issue are the terms of the writing. Forget the oral agreement and handshake.

When you get to court, will you be bound by the original intent of the parties (as revealed by the terms of the writing)? Or will the parties get up and describe the writing as a living document, with terms that are open to adaptation as circumstances or parties change? How would a judge respond to such an argument?

Lawyer: Your honor, the plaintiffs would construe this writing as a "living document," and as such, the terms are fluid. The terms are adaptable, malleable, mutable.

Court: Then why bother writing them down?

Lawyer: Well, your honor, this is the customary way of doing business, the expectation of the parties....

Court: So the parties expect to sign a written contract, but not to be bound by its terms? They plan to exchange promises but keep all the terms fuzzy? Doesn't that defeat the purpose of a writing? Fuzzy deals are for handshakes, counselor, for standing arrangements and oral understandings. The only reason anyone ever reduces an agreement to writing is in order to be bound by that writing. If the writing is a "living document" then what possible advantage was there in drafting it?

I would have to answer that I have no idea. The hard fact is, fuzzy (but 'original') terms like living document are only in vogue today because so much fuzzy thinking passes for sound reasoning. I can tolerate a great deal of existentialism and relativism. Probably too much. I can accept the idea that I will never on this Earth be able to fully share another man's shoes. A Venn diagram of our minds and experiences will never completely overlap. There may be ways in which I will never fully know even my most intimate allies.

But we speak the same language. I understand most of what is said to me in English. We can communicate. And we can come to terms. And if I promise to provide x number of products on y date, in exchange for your payment of z dollars, we have a deal. And if we take the time to write it, review it, and sign it, every court in this country will assume both parties understood it, absent some claim a party lacked capacity to enter a contract in the first place.

In addition, most literate Americans understand the written English of the late 18th century. We can read the Constitution and other founding documents and know exactly what the words mean. Originalism is the way documents have always been read. After all, how else can you understand any written word, but to attempt to read it with the tone and meaning with which it was written. The beauty of originalism is that it is completely un-original.

And if you are a hopeless existentialist, do you actually believe it is impossible to know any writer's intent at any time? Do you think the pursuit of original intent is somehow an objectionable call for speculation? Fine. Although we can make a sound argument, we need not prove the actual inner motives of any of the framers of the Constitution. Maybe it was all some sort of conspiracy, right? There's a fresh, post-modern approach.

But we can certainly require the document to be applied in a manner consistent with the original understandingof those who read and ratified it. All that requires is a reading of the legislative history, especially the wealth of letters sent throughout the 13 states explaining in detail the meaning of each article in the Constitution. Such legislative history is plentiful and it is consistent. The Constitution should be read today to have the same meaning it had in 1789. Supreme Court opinions consistent with such a reading, or inconsistent but so deeply entrenched as to have now become essential (absent an amendment) due to stare decisis, should be given the greatest precedential value. Opinions that are neither consistent with an original understanding of the Constitution, nor deeply entrenched, should be set aside or overruled. (FYI: Lest you think legislative history is a weak argument, note that lawyers make resort to legislative history every day for cases involving everything from zoning ordinances to the income tax.)

Again, I can't help but think in personal terms. What if your boss said your employment contract was a living document? Or your rich wife informed you she now saw that prenup as adaptable? Or the surgeon who injured your child argued the informed consent papers you signed now included the injury in question, because the document changed with the times?

Such arguments would be ludicrous. People do not operate this way, they don't do business this way. Scholars don't even read history this way. And those who ask courts to read the Constitution as an allegedly "living document" that changes with the times do so for only one reason: they do not believe American law would have gotten where it is today without such readings, and they are certain it will not progress further if the Court looks to anything like an original understanding. Both views are wrong and I will explain why another time.

Finally, a quote. One of the Huxley's once said he and others like him had become proponents of evolutionary theory for only one reason: it allowed them the freedom to behave any way they liked. Perhaps the same is true of those who talk about "living documents."

A Link and a Bit of Vocabulary.

In what was absolutely the very best class I ever attended at UH Law--Jewish Law--we learned many things that have proved insightful. But I especially liked the word INTERSTITIAL. Do you know it? I first heard it used to decribe the way in which Jewish Rabbis would interpret the Torah and the Talmud. These men spent their lives studying, memorizing, and interpreting centuries of Jewish law. And once or twice in their lives, they would offer some new interpretation, or what might even be described as a new law. But to the extent a rabbi writes new law, he only does so interstitially.

I looked up interstitial in Black's Law Dictionary. This $60 addition to every one-L's locker did not list 'interstitial.' But the more-expensive Oxford American Dictionary (a gift from Dennis) defines it as forming or occupying interstices. And interstice is defined as an intervening space, esp. a very small one. A wooden translation of the word from Latin means something like 'standing between.'

Every judge in America ought to know this word, especially those who sit on the highest state and federal courts. Their duty is to study the law, interpret it and apply it to the facts of each case, and write new laws as seldom as possible. And when they do "write law" they must do so only interstitially. That is, judges are only to fill the gaps left by the democratic legislature, not to craft entirely new laws sua sponte (on their own motion). In other words, interstitial law merely closes the tiny holes created by a legislature's inability to draft statutes that can provide for every possible fact pattern.

A bit of fun:

Friends of mine at the Democracy Project added this blog to their list of links today. (Thanks, Brent.) Check out their informative site, linked above with a little help from Dennis. (I can already see that knowing how to link will lengthen the time I spend here.) Brent wrote an introduction of me and this blog that I can only hope to aspire to... I mean to which I can only hope to aspire. It means a lot coming from him, prodigy that he is.

By the way, many lawyers I know received a baker's dozen of personalized cross pens upon graduation. One friend even gave me a Mont Blanc. But I suggest you buy the newly-minted lawyers in your life a dictionary. A good one.

Politics as Usual

Between now and Justice Alito's confirmation, we will be subjected to nothing but bitter partisan politics (with the occasional voices of reason here and there). And I don't plan to comb through those comments with any great attention to detail. It's all irrelevant--because it is concerned almost exclusively with the off-limits political questions. (Although it can be really interesting.)

But here's something worth noting. In 1990, Judge Alito was confirmed by a unanimous Senate for his position on the 3rd Circuit. He'll have no such luck this time. Consider the following from the never-hypocritical Ted Kennedy (who led the campaign to destroy Robert Bork, and once in a private elevator extended his hand to Bork, smiling and saying, "Nothing personal,"):

"If confirmed, Alito could very well fundamentally alter the balance of the court and push it dangerously to the right," said Sen. Edward M. Kennedy, Massachusetts Democrat.

Republicans pounced on the statement, comparing it with Mr. Kennedy's statement 15 years ago during Judge Alito's confirmation hearing to the 3rd Circuit.

"You have obviously had a very distinguished record, and I certainly commend you for long service in the public interest," Mr. Kennedy said then. "I think it is a very commendable career, and I am sure you will have a successful one as a judge."

--From the Drudge Report.

Bush Nominates Samuel Alito, Jr.

Today President Bush nominated Sam Alito to the Supreme Court. Alito has served for fifteen years as a justice on the 3rd U.S. Circuit Court of Appeals. As an attorney, Alito argued some 20 cases before the highest court. Some have even said he is actually better-qualified than Justice John Roberts. But Democrats have promised a tough confirmation battle--most of which will center on political questions (those that should be off-limits) because there is little room to attack Alito on qualifications or questions of judicial philosophy and temperament. I'd like to address some of what is to come.

Senate Minority Leader Harry Reid says Alito is not a 'consensus nominee.' So? We rule by majority, not by consensus. And do Democrats ever choose consensus nominees? Was Ruth Bader Ginsberg, Chief Counsel for the ACLU a consensus nominee?

Chuck Schumer compared Alito unfavorably to Rosa Parks suggesting, "he would use [his seat on the Court] to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place." This comment is completely irresponsible--but Schumer phrased it in the form of a question, so he can claim to simply be curious. Such a "polite" tone won't last long with Schumer.

Reid said something similar, angry Bush did not choose a woman or a Hispanic.

(But wait? Are you suggesting race or sex would cause a judge to interpret and apply the law differently? And that's okay to you, Senator? Well, not to me. As I said elsewhere, unlike politicians, judges are NOT supposed to look into their hearts for answers. Their life experience should be irrelevant. And that does not mean life experience and hearts, beliefs, values and all that does not matter. It's just that those things matter only for politicians. Judges are like mathematicians. Do race, sex, or life experience lead to different answers on math questions? So being a female or hispanic means 2 plus 2 equals 5--and that's okay? Schumer would call this a false analogy, but it's not, at least not entirely. The law says what it says. Some interpretations are right. And some are definitely wrong. If you disagree, try teaching Shakespeare for a few years. You'll see interpretations--if they can even be called that--that can only be described as WRONG.)

What Reid said, upset Alito is too male and not hispanic:
Bush "has chosen yet another federal appellate judge to join a court that already has eight justices with that narrow background. . . . President Bush would leave the Supreme Court looking less like America and more like an old boys' club."

Aside from the irrelevance of this charge, what about Alito? His name's not exactly Smith or Reid, is it? He may not be hispanic, but he is Italian. Doesn't that count? His family is from a mediterranean nation in southern Europe, not far from Spain. In fact, Alito is the son of first-generation immigrants. Are such roots meaningless to Reid?

What is certain to be of greater concern to Reid is that Alito has often been compared to another Italian, Antonin Scalia. In Alito's present position on the 3rd Circuit, he has often been called "Scalito," because of the conservative nature of his opinions. Personally, such a nickname strikes this writer as a good sign. But not everyone agrees. Check out this press release from the National Italian American Foundation, based in Washington:

The NIAF is distressed by the attempts of some senators and the media (CNN,CBS) to marginalize Judge Samuel Alito's outstanding record, by frequent reference to his Italian heritage and by the use of the nickname, "Scalito." Appropriately, no one mentioned that Justice Breyer was Jewish or suggested that he was lock-step ideologically with the other Jewish Supreme Court Justice, Ruth Bader Ginsburg, it would have been outrageous to do so. We still do not know Justice Robert's ethnicity.

We are justly proud of Justice Alito's Italian heritage and his sterling academic and judicial records as well as his impeccable integrity. However, he should be considered as an individual. In honor of the memory of the just-departed Rosa Parks the Senate champions of civil rights should insist that Judge Alito be considered only on his extraordinary merits.

Sincerely,

A. Kenneth Ciongoli
Chairman of the National Italian American Foundation

You can see this for yourself at the address below. Someday I'll figure out that whole link thing.
http://www.niaf.org/news/index.asp?id=418

I found one or two other interesting comments. Alito was the sole dissenter in the case of Planned Parenthood v. Casey. Briefly, Alito felt the state did not violate the Constitution when it required spousal notification before an abortion. For daring to support a state's power to require women to notify their husbands before 'terminating' a pregnancy, Alito is called a "RADICAL." Make of that what you will.

The head of the National Women's Law Center said Alito has a "highly troubling record that raises serious concerns for women in the area of reproductive rights, federalism, and sex discrimination in employment." Troubling in the area of federalism? That was an unexpected charge, even from the wildly pro-abortion crowd. I don't know what it's based on--but I assume they are worried Alito is actually in favor of federalism. God forbid. (You see, once Roe wrested abortion regulations from the states, Roe's supporters began to see federalism itself as a threat.

Senior GOP officials said they hope for hearings and a final vote by the Christmas holiday. That is important given the Court's schedule in January. Big (abortion) cases lie ahead, both on partial-birth abortion and parental notification.

A final thought:
with both sides talking about nothing but abortion with every nomination since Reagan was in office, with every national election in the last twenty years hinging on the topic, with the controversy being over-the-top, beyond anything this nation's seen in so long---

is this really the sort of topic a court should decide? Or could it be that the democratic process might be more appropriate?

Reformation Day

Do you know what October 31st is? Right. Reformation Day. On this day in 1517 (big anniversary in 12 years--mark your calendars) Martin Luther, upset by corruption in the Catholic (meaning "universal") church, nailed 95 theses to the door of the cathedral in Wittenberg, Germany. Originally intended merely for debate among his priestly brothers, a copy found its way into the hands of a man named Gutenberg, and soon all of Europe was engulfed in the flames of controversy. Thus began the Protestant Reformation, one of the greatest events in history.

But Luther's integrity sparked something else: The Great Reformation of the Catholic Church. Whatever you may think of that body, it is certainly not so dogged by corruption as it was 500 years ago. In response to the Protestant Reformation and the departure of the faithful to other churches, Rome began to return somewhat to the church's founding documents (scripture), and rejected at least the worst of its human traditions (like the selling of indulgences, forgiveness you could buy throughout October, allowing you a hedonistic All Hallow's Eve, without fear of eternal damnation....) Ironically, Luther, who eventually married a nun and moved on, never intended to leave the Catholic church.

And what interests me for the purposes of this website is the Reformation of the Catholic church. The American Government faces various heresies today, but I would never suggest abandoning it. I would love to see a Great Reformation, however. We can eradicate some of the wrong views that have crept in, and return to our roots, our founding documents. And while I don't believe anything we face is as corrupt as the selling of indulgences or the Inquisition, there is a tremendous danger in the allegedly "modern" views that would tear the Constitution loose from its moorings and set it adrift on a relativist sea. That is, we face great threats from those who argue it is a "living" document--because they mean it can change with the times, supporting law the founders not only never intended, but would have rejected altogether if given the chance. Such a view leaves only the Court to determine the law of the land, and what the Constitution may say becomes all but irrelevant. Then we are no longer a democracy, practicing majority rule. Suddenly we are ruled by an oligarchy of nine judges appointed for life. Something tells me that arrangement breeds corruption.

Here's to Luther (not perfect, I know) and Reformation Day. May our nation be blessed with its own Great Reformation.

Federalism

Do you think about federalism much? Or do you just think of the federal government: the big, bloated sow swallowing so much of every paycheck, rolling in its own filth, and . . . well, I'm no fan of the income tax, but hey, the federal government takes care of us, right? They built the interstate system, they provide for the common defense, they address diplomacy. And the Constitution designates specific duties to the federal government. Article I, Section 8 provides quite a list. Here's a sampling:

The Congress shall have the Power To lay and collect Taxes, . . . to pay the Debts and provide for the common Defence and general Welfare of the United States; . . .
To borrow Money on credit of the United States;
To regulate Commerce with foreign Nations, . . .
To coin Money . . .
To establish Post Offices and post Roads;
To declare War, . . .
To provide and maintain a Navy; . . .

But what about providing a free public education? Or laws against murder, rape, and robbery? What about your fundamental right to sue all doctors and rich people? But I know you're way ahead of me. All that stuff is left to the states. These and so much of the rest of life were placed by the Founders in that large group of governmental powers known as the Reserved Powers.

Like all rights spelled out in the first ten amendments (the Bill of Rights), this check on federal power was understood from the text of the Constitution. That is, some founders argued no Bill of Rights was necessary because everything in those ten statements was clearly the intent of the Constitution anyway. In other words, everyone present knew that if it was not written down as a power specifically designated to the federal government, then the federal government had no such power. But the Bill of Rights nevertheless was ratified and appended to the Constitution in 1791. And the right of the States to govern themselves was spelled out in the tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today the tenth amendment is the foundation, the beginning of federalism, federalism being the idea that ours is a nation of free and independent states, united for various federal purposes, but otherwise distinct and free to govern ourselves as each state sees fit.

And is that how we see it? Is that how most Americans see themselves or their states? I don't have poll numbers, but I'd bet not. Today our conception of America is something much more homogenous than that, as if we were one big family. But still, the name United States is plural, you know? We are not exactly one and have never claimed to be. One of few Latin phrases I can translate:

E Pluribus Unum: Out of Many, One.

We are one, but we are many. Yet aside from the growing (and unhealthy) balkanization of our campuses and culture (black students for peace, hispanics for success, Chinese Student Union, Native American Club, Vietnamese Student Center, African Studies, Womens' Studies, Chicano Studies, ad infinitum), most of us see America as one big melting pot, and though some have said "all politics is local" most would argue "all interesting politics is national, and the local stuff is tedious."

Oh, how far we have strayed from the ideals of the framers. Throughout the Colonial period, each colony enjoyed tremendous freedom (at least from each other, if not from King George). As a result, they were extremely anxious about giving that up by joining some sort of large American nation. But because all the colonists shared the same reservations, they were able to agree to a sort of tenuous Republic, modeled in part (I believe) on Greek ideas of various city-states, each with self-government, but the ability to come together for the common good. Such relationships are older than history. But this idea of United States was different. The states are obviously bound together; this is a nation, no doubt about that. But this was originally a nation that provided for a tremendous amount of local control. Jefferson is famous for his insistence on States' rights. Most have heard that the Civil War was at least partly concerned with states' rights.

But what does all this have to do with Judges?

To put it bluntly, many have found ways to ignore the Tenth Amendment. On so many issues our federal government now intrudes in areas the states once held sacred. This has probably gone on throughout our history, but it really took off while FDR was president. Admittedly, we were coming out of a depression and fighting the second of two huge wars in 20 years. People were willing to unite behind the president and the United States. That was the right thing to do. But FDR, you may remember, was famous for his court-packing scheme. He knew the Judicial limits on his own power, and those darn judges weren't dying fast enough. So FDR tried to enlarge the Court by three seats, which would be his to fill, of course. It didn't happen. But he made inroads nevertheless, appointing men to fill eight of the nine seats during his four terms as President.

Did you hear Governor Rick Perry (or was it Mississippi's Haley Barbour?) who recently testified in FEMA hearings that he did not want the federal government to become the first-responders in cases of natural disasters. The locals know the place, they know the system, the roads, the people, the needs. Of course they should be the first on the scene and they should call the shots.

But does the debate strike you as odd? Years ago, there would have been no debate. For years, states that now climb all over each other racing to suckle up to the federal teat, turned down federal handouts the same way the men rejected charity if it was offered to their families by the neighbors. States were once too proud for handouts and fought vigorously to prevent any federal intrusions into areas reserved to the states. Jimmy Carter created the Education Department, a federal sinkhole that may have done some good, but is the money used efficiently?

My point here, and sorry if I've strayed, is that the Court and its judges must remember and respect federalism. That probably won't happen if the people don't demand it. And we don't. But it matters. One of the biggest problems with Roe v. Wade, and decisions like it, is that it was an abuse of federalism. A power reserved to the states, the power to regulate abortion, was removed by the federal court.

Here are some more thoughts on Federalism from Robert Bork's book, referenced elsewhere.

"Today [federalism] is usually thought passe, quaint, or even tyrannical, this last because federalism, rephrased as 'states' rights,' permitted some states to legislate racial discrimination."

"But federalism also had an important benign aspect, the protection of individual liberty."

"Federalism is, moreover, the only constitutional protection of liberty that is neutral." (Because it is not related to specific subjects, like speech, assembly, religion, etc.) "In this sense, federalism is the constitutional guarantee most protective of the individual's freedom to make his own choices."

Remember, if you don't like the way it is where you are, you have 49 other states from which to choose. Environmental regulations choking your business? Move. I suggest Texas. Don't like that new state income tax? Move. Again, consider Texas. Tired of dropping your guns at the Potomac bridge? Get out of the beltway (probably the least likely to benefit from federalism) and move to Virginia. Want to smoke in public? Or to drive a gas-guzzler? Or to cut the timber on your own land? Federalism still provides a lot of options. But as judges neglect it, crushing states' rights under their federal jackboots, the states will become more and more alike, all burdened with more and more laws, many of them bad.

Federalism matters. And maybe all this gives you some idea about the Federalist Society. I'm a member of that august organization, but I honestly think the name is related more to the federalist papers. But you can check their website for more info.

By the way, kudos to Jennifer DiMaggio for the topic. We were talking about Roe and got onto federalism. She is headed to D.C. to work for International Christian Concern, where she will specialize in efforts to aid the persecuted church in Sudan. You can reach her at onethousandgenerations@gmail.com. (Or is it 'athousandgenerations@gmail.com'). Anyway, Sudan is another topic dear to my heart.

Baseball, Sam Houston, and Those Judges...

Driving (again) from Tyler to Houston, I passed the ten-story statue of Sam Houston. Because I'd been nodding off, it was a good time to stop. For the first time I got there during the day. (Have you been there?) The statue's cool, but this time I made it to the gift shop. They were closing, so I walked straight in and asked, "Do you have anything with that stuff from the plaque on it?" She pointed me to a postcard. I'd have spent more. I'd like it on a tee-shirt, a coffee cup, or a plaque of my own. But all they had was the postcard. I want to share with you the quote the artist (or the Masonic Lodge behind the statue) chose to put on the brass plaque at the statue's base.

"The great misfortune is that a notion obtains with those in power, that the world, or the people require more governing than is necessary. To govern too well is a great science, but no country is ever improved by too much governing . . . most men think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Sam Houston.

Now for some baseball. With the recent baseball overdose here in the Bayou City, you'll understand this analogy. John Roberts said recently that he sees his role like that of an umpire, calling balls and strikes. But Roberts didn't elaborate--so I will. The umpire-judge doesn't make rules. And he doesn't play the game. The judge calls balls and strikes. What he does not do is redesign the strike zone. That legislative decision was made elsewhere. Another body made the rules. The umpire merely applies them. A strike is above the knees, below the shoulders, and above the plate. Anything else is a ball. Sure, the umpire is imperfect. But he knows his role: to understand the law as it comes down to him and apply it to everything the pitcher throws at him.

What is an activist judge? He's the umpire who makes up a new strike zone.

And activist judges are judges who step outside their proper role as judges. They are like the politicians who enter office seeking new ways to assert and grow their own power and authority. Or like the ones who think only of creating a legacy. In other words, these people, both judges and politicians, are the ones Sam Houston complained of: "they think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Our system requires a Separation of Powers. And on rare occasions, the Executive Branch shares a legislative role, and the Legislative Branch shares an executive role. For example, the Executive takes on a legislative role when he uses his veto power (did you know Bush has never used that power?). And the legislature takes on an executive role when it is required to ratify treaties entered by the president with a 2/3 vote. But at no time does the Judicial Branch (at least as contemplated by the Constitution) share either. This third branch of our government is entirely different from the first two. Can you see why? The first two are made up entirely of politicians. They look at problems, search their hearts, talk to voters, and sponsor and draft laws. But the courts are entirely different. They (usually) don't run for office, they do not respond to voters, they do not listen to anyone's heart, and they do not create new law (other than "interstitially"). Moreover, the Founders described the third branch, the Judicial Branch, as being by far, the weakest of the three.

. . . But after an exhaustive search, I can't find the quote on that (!). Robert Bork put it this way: "There is no faintest hint in the Constitution, however, that the judiciary shares any of the legislative or executive power. The intended function of the federal courts is to apply the law as it comes to them from the hands of others."

The Tempting of America: the Political Seduction of the Law, 1990. 4.

Harriet Miers Withdraws

Now here's a relevant current event. Last night Miers told the President she was pulling her name from consideration. Democrats cry out that the 'radical right wing' of the Republican party did this. Rush Limbaugh (whom they named specifically) says he had nothing to do with it. But many conservatives, while chafing at the 'radical' label, do not pretend to be unhappy. Yet they like Miers personally. They protest only that they were concerned about her commitment to a proper judicial philosophy. And she has ridden the fence on a number of issues over the years.

Why did Bush's base--not a radical fringe--fail to support him on Miers? Because they saw her nomination as a squandered opportunity. They voted for him so he could put solid people on the bench, people who were clearly committed to a certain philosophy of judging, not to certain litmus test-outcomes. That is, it's not just about Roe v. Wade. It's about putting the Court back into its proper perspective, bringing a halt to the Court's recent tendency to overstep its power and become a legislative body. It's about returning to a commitment to the Constitution, not as some allegedly "living document" (liberal code for a document that adapts and changes), but as a brilliant philosophical statement onthe nature of man (fallen and corruptible) and the rights and responsibilities of citizens living in this free Republic. Such brilliance need not change. Our founding documents are the work of genius, many believe genius inspired by God. And the Constitution is one of history's greatest works on the nature of man and his rights and responsibilities. It's done, you know? Like Beethoven's Ninth or DaVinci's Mona Lisa, or Michaelangelo's David, or the Statue of Liberty. Or the Ten Commandments, Hamlet, Genesis, The Sermon on the Mount. Which of these great works is ever described as "living"? They are among mankind's greatest achievements, but no one expects them to adapt. Neither should the Constitution. The men who drafted and ratified it understood its words. Their understanding--the original understanding--is the only proper interpretation.

We need a Justice who is committed to this perspective.

So What About Harriet Miers?

I've been avoiding the subject of Ms. Miers in an effort to define terms--and I won't devote much to her just yet. Hearings don't begin for another two weeks. I will say, things might have been done differently. Most of what we know about her is that she is something of an unknown. That is unfortunate, when there are so many solid people with both outstanding resumes, demonstrated scholarship, and a known commitment to a traditional judicial philosophy.

My hunch has been that the president was ducking a fight when he chose Miers. She was a known supporter of Dukakis and at one time supposedly gave money to pro-choice causes. (Or this may all be rumor. My sources are not good.) Now I hear people assuming she experienced a radical conversion to Christianity and changed her view on abortion and other things. I don't know what the truth is. And I don't get a vote in this anyway--since she's not a politician.

But I don't understand why Bush didn't pick a solid candidate that his supporters could rally around. The GOP has the majority, yet we seem to be trying to placate the ravenous dogs by throwing them a Dukakis supporter. Then James Dobson gets on the air and implies Miers is just who we want on the bench. But what does that mean? That she's pro-life, no doubt. But I'm sorry, but I'm just not interested in getting that single vote on a single issue--even if it is the biggest issue of the last fifty years. We should take the long view and appoint someone who is schooled in conservative scholarship on dozens and dozens of issues. We need excellence and a demonstrated judicial acumen. I'm not saying Miers lacks either--only that I have no idea. It's the president's choice, and Bush has always been good at reading people. Maybe she's the best choice. I hope so.

What Does it Mean to Follow the Law?

While in a Beaumont, Texas courtroom I recently overheard an interesting discussion. It seems a small child had somehow wandered out of his elementary school and then been found outside, wandering a busy street. The parents sued the district and their case was now concluded. (I assume they lost.) Next, they filed a second lawsuit against the superintendent of schools, suing him personally for the negligence that led to the child's harm. (What that harm was, I do not know. Probably some alleged emotional distress.) This case presented serious problems, but the plaintiff's attorney was undaunted, possibly because this was, after all, Beaumont--a plaintiff's venue if there ever was one. The exchange was interesting:

Defense counsel: Your honor, the [school-law] statute specifically addresses negligence claims against the school district. If I might direct the Court to Section 42, as noted in our brief at page 8, the State of Texas has specifically stated that negligence claims against the superintendent of schools cannot be brought based on allegedly negligent actions of district employees.

Judge to Plaintiff's counsel: Did you address this statute in your brief?

Plaintiff's Counsel: Well, your honor, . . . I've read the statute. But no, I did not specifically address that point in my brief. But your honor, I would simply urge the Court to consider: this is a case of negligence, your honor. I mean, the child got out of the school and was walking up and down on College Avenue, a major thoroughfare in this city. Now your honor, that sort of thing does not happen--it cannot happen--without negligence. This is bold, flat-out negligence of the worst kind. And it is the superintendent's responsibility. I mean, he was in charge. He was the man. And he let this little boy wander out on the street. I mean, these parents entrusted their son to the school, to the superintendent....

Judge: But what about the statute? Does it not expressly abrogate this suit? Doesn't the statute say you can't do this?

Plaintiff's counsel: Well, your honor. This is a case--Your honor, I am simply asking that the Court would, in its discretion, just consider the negligence in this case. I mean, this man....

I was dumbstruck. Maybe I am naive. But how could he stand there and talk about discretion? How could any self-respecting attorney stare in the face of a statute that says "You can't do ABC" and ask the judge to let him do ABC? In law school, one of my professors had a question: Could you make that argument without a bag over your face? I couldn't. But I know many who could--and some who would argue anything less was not serving their clients. It's as if the law means nothing. Who cares what it says, as long as you can give the court a way to read it in your favor?

And that, my friends, is precisely what is wrong with the law today. No--not with the law. That is what is wrong with legal practice today.

Words mean something, right? Even legal documents. Especially legal documents. They mean what they say and nothing more or less. Sure, there is room for interpretation and application. That is the judges' role. But there is not room for fiction, for creative writing, for arguing for results exactly the opposite of what is written in the text. (Even though a growing body of caselaw can make it seem otherwise.)

Joseph Story, both a professor and a Supreme Court justice, wrote "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."

Are Judges from BOTH parties "working vigorously to change the role of the judge?"

This is a reference to the description of this blog. And the answer is 'YES.' Judges from both parties, judges from all over the map, are working--some deliberately and consciously, and others ignorantly--to change the role of the judge. That is, every judge who fails to understand the bounds of his role will constantly overstep those bounds. If you can't see the curb, you'll step out into the street. Few will disagree with me when I say that law schools--like so much of academia--are generally quite liberal. That's axiomatic. And how does that affect a judge? Simply in that he will be exposed to very little judicial philosophy or anything else remotely theoretical after he graduates. Discussions of the role of judge happen in two places, law schools and courtrooms (by the losing/appealing party). But a meaningful inquiry about these boundaries is rare. Liberal professors do not believe that the judge is limited to applying the law and interpreting texts. They flatly disagree. And lawyers, both liberal and conservative, are not paid to consider such things. In fact, why should they? Often the only way they can win for their clients is by asking a judge to ignore the law. I hear it all the time: "Your honor, I'm just asking you to consider, in the court's discretion...." In other words, gimme a break. Such appeals often work. So lawyers aren't interested in boundaries. They are interested in practical tools to win cases.

(Of course, you could argue that these boundaries within which a judge operates are winning tools--if you're on the other side. But it's not that simple. Imagine the argument: "Your honor, with all due respect, your honor--now I don't mean to offend--but what the plaintiff argues is beyond the scope of this Court. The only questions facing the Court today are the application of the statute. The Court simply does not have discretion...." You can see how hard it is to win such a point--to tell a judge to watch himself before he gets too big for his britches. But yes, it can be done.)

But back to the law schools. They talk about judicial philosophy and jurisprudence, but not as much as you might think. And they do not talk about the traditional role of a judge. Their graduates won't hear much about it in their practice, and it is the rare lawclerk or staff attorney that will remind him when he is overstepping his bounds. And then there are the obvious questions about the qualifications of some judges. In many local courts, judges are elected. Elections attract different candidates--politicians, police chiefs with law degrees, etc. Some of these are not likely to know or question the scope of their new duties. So when they put on the robes, even the conservatives often do what liberals have been doing for a generation--they push away the rules now and then, and ask themselves what the rule ought to be.

And that is wrong.

Robert Bork puts it this way:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him, his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government.... To give in to temptation, this one time, solves and urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Robert Bork, The Tempting of America: the Political Seduction of the Law, 1990, p. 1.

What About John Roberts, anyway?

Mr. Roberts seems to have been an ideal choice. There may still remain some doubt about his views in specific cases--but those are off limits anyway. As for qualifications, what doubt could there be? What a resume. His only flaw may be the way he hedged about his membership in the Federalist Society, an organization Bork referred to in a WSJ article today asa farm team full of future judicial candidates. As a Federalist myself, I was surprised by the hesitation. But otherwise, Roberts was a good choice. Still, Bush passed up a handful of possibly better candidates, though none might have been as easily confirmed as Roberts.

Then again, why don't Republicans pick the clear conservatives? Democrats sent up Ginsberg, general counsel to the ACLU, and no one said boo. Now the GOP has the majority. Use it.

Primer One: Judicial Philosophy and the Confirmation Process

There’s an old story about two judges, both of whom have achieved larger-than-life status in legal circles. It seems Learned Hand had lunch with Oliver Wendell Holmes, a man he greatly admired, and as the two waited for horse-drawn cabs to different parts of town, Hand wanted to say something profound, something meaningful.

“Do Justice, your honor. Do justice!” Hand cried as Holmes pulled away. Holmes turned and called back to the younger judge.

“That is not my job. My job is to apply the law.”

If Holmes’ response seems odd, it’s because of a recent but fundamental change in the way Americans view the role of judges.

Can’t we make her answer questions, so we know she’s not another David Souter?

The question of the day refers to the Ginsberg Rule—although in practice the rule is probably as old as the Court itself. When Ginsberg, general counsel for the ACLU, was asked for her personal views, she repeatedly and consistently declined to answer, explaining that she could not discuss issues which might come before her on the bench. But this is the U.S. Supreme Court—what issues won’t come before those on the bench?

The answer rests in an area of legal tradition many members of the legislature, the media, and the bar seem to have forgotten: the role of judges. We all know what politicians are, don’t we? In elementary school we hold elections and learn how to yield to the majority. We understand elected representatives. We vote for them—they make rules for us. But who are these men and women with the life appointments? Certainly not part of any democratic process, are they? Well, yes and no, but more on that later.

For now, consider this: a judge is not a politician. A politician is elected by the people—but not until he has spent an extraordinary amount of money and energy campaigning, telling everyone his views. And if he cannot publicize his views, he will not be elected. So when someone is nominated for the Court many expect him to do the same—especially legislators whose careers stand or fall based on their ability to mount effective campaigns. Tell us who you are and what you believe, they cry. But such an argument assumes the man is campaigning—seeking votes from the constituency he hopes to represent. Of course, he is not—and that's the point. A judge does not serve the electorate. He serves the law, and the people only indirectly. If, for the sake of analogy, the judge were said to have a constituency—a body to which he must remain faithful—that “constituency” is the nation’s body of democratically created law. To that end, he swears an oath to uphold the law, regardless of his personal feelings about the cases.

A Supreme Court justice has an even higher obligation. He takes an oath to uphold the Constitution and to faithfully judge between that text and all the lesser laws with which it may be found in conflict. This is the single purpose of the U.S. Supreme Court—analyzing the gray areas between the Constitution and the state and federal laws that cross it. And what about the judge's personal opinion on the topic? It is irrelevant. And most judges know that. In a stark contrast to the life of a politician, what a judge may think about abortion or gun control is to have no bearing on his decision in the legal case before him. That is, the question of what a judge may believe the law should be or ought to be does not come before him. My constitutional law professor called these “oughtness questions,” and though he was no doubt too “progressive” and practical to argue no judge faces such questions, I would argue exactly that. Questions of what the law ought to be are exactly the kind of questions judges are not allowed to ask. The fact is, judges have always “applied the law” as Holmes would put it. Seeking to satisfy his own inner sense of justice was never a judge’s role. In fact, for a judge to look within himself for answers rather than within the Constitution, is arguably a flagrant abuse of power or a serious dereliction of duty. The worst thing a judge or appellate justice can do is to ask himself what he thinks the law ought to be. That question is reserved to the legislators and the voters. When an individual case, with its unique set of facts, arrives before the judge, his role is to apply the law as it has come to him via the democratic process—a challenge great enough for even the sharpest minds.

Our system does not give politicians a vote in individual cases. Nations whose legal systems are so porous that political bosses can control the outcome of legal cases—taking on the judge’s role—are among the most corrupt places on Earth: North Korea, Sudan, Afghanistan under the Taliban, Iraq under Saddam. And yet, most Americans don’t even notice when judges take on a legislative role. Nevertheless, the fact remains that judges are not to ask themselves what they think the law ought to be. What the law ought to be was already determined, by the framers of the Constitution and the voters and legislators who drafted the rest of America’s federal and state law. Consider the contrast: on the one hand you have the Constitution and another state or federal law hammered out in the give-and-take of a lengthy and complex legislative process. On the other hand, you have a judge willing to ignore both while he looks inside himself at some fallable internal compass. Would you be willing to put the fate of America’s future in the hands of a judge contemplating his own navel? Or to put the question in more democratic terms, would you rather bet your nations’ hopes on the beliefs of hundreds and hundreds of people who campaigned on those beliefs, or one a handful of judges who have spent their lives professional lives arguing so many different sides to each question that what they may secretly believe will forever remain a mystery? In other words, it is the politicians who get to follow their hearts. But after legislators draft the law, judges are forbidden to follow their hearts. They must follow the law. This is the democratic process.

The judge’s opinion, therefore, is irrelevant—a distraction at best. And because he is not to seek counsel in his own opinion, his opinions are likewise off limits during the confirmation process. The only question he is to consider is the meaning of the Constitution as interpreted by the Court to date.

This brings us to the more acceptable questions about a judge's character, temperament, and judicial philosophy. When you consider that he is expected to reject his personal opinions, you can see how important these questions are. It is not easy for anyone to ignore their passionately held beliefs and rule in favor of parties they privately oppose. But that is what our traditions require. (Some notable opinions deal with just this issue. For example, as a Catholic, Justice Scalia is opposed to the death penalty, and has noted the same in an opinion—before voting in favor of a law requiring it.)

By now, you're asking--So, just how naive are you, right?

I admit it--In the 1970s the Warren Court ignored this tradition, basing some decisions on their personal opinions and—many believe—little else. Since then, many justices have followed suit. Nevertheless, judges know what is expected of them, even if commentators do not.

The judge's "constituency" is the Constitution, not her personal opinions or even the opinions of her supporters. During the coming battle remember—the nominee must support the Constitution, not Democrats and not Republicans. What matters is not her personal opinions, but her commitment to put those opinions aside when necessary and rule according to the text.

Primer Two: What about Roe v. Wade? Will it be overturned? Stare De-Who?

What thoughtful American isn’t speculating on the abortion question? You can probably get odds from the on-line bookies. But this begs the not-insignificant stare decisis question. The Latin phrase means “to stand by things decided,” and refers to those cases that bind the Supreme Court. One wildly popular radio pundit wrongly used this term recently to describe a lower court’s obligation to follow a higher court’s opinion. But that’s not what lawyers commonly refer to as stare decisis. Stare decisis refers to the practice, the rule, really, that the Supreme Court follows its own opinions.

Yes, believe it or not, even the highest court in the land can’t just go around making up law—or it’s not supposed to anyway. That’s the job of the legislature, remember? Again, Americans understand that because they voted for them. Conversely, when nine judges—appointed for life and accountable to no one—start making up new law, aptly described as ‘legislating from the bench,’ people are outraged. And often they should be. The way the Supreme Court “makes” law is by tossing out laws made elsewhere—some in lower courts, but most through America’s unsurpassed democratic processes. The Roe v. Wade decision, for example, threw out a Texas law making abortion illegal. Numerous other states had similar laws, all of them drawn up by legislatures, composed of hundreds of people duly elected to represent and enact the will of the hundreds of thousands of citizens in those states. What the Court did—and continues to do in cases every session—is toss out laws written and passed through a pure democratic process. But the same cannot be said for the processes of the Court. The nature of the Supreme Court—life appointments, the “cult” of privacy (how many people you know would recognize John Paul Stevens or Antonin Scalia if they walked into the room?)—removes it from the political pressures of the democratic process. And the Court’s process is not democratic. Some writers call it anti-democratic, simply because its work as often as not requires the Court to reject democratically created laws. So then, the Court, doing exactly what the founders designed it to do, is not a democratic body. Instead, it is an auditor, keeping the books on all state and federal laws, making sure the numbers add up according to the rules of that higher authority known as the Constitution.

Most people understand this process and adapt. When state laws are ruled unconstitutional, citizens generally accept the decision. Perhaps those offended by the rejection of laws drafted and passed according to the will of the people can shrug their shoulders and give the Court the benefit of the doubt, knowing it acts on behalf of a higher authority, the U.S. Constitution.

But how do people feel when the Court overturns its own prior rulings? When it considers stare decisis, but determines that correcting a decades-old wrong is more important? People feel bad. More specifically, they feel cynical, skeptical, often angry. When Roe v. Wade was created it was a bad ruling with no basis in the Constitution. Clearly abortion should have remained an issue for the states. But the activist Warren Court (a group famous for making law out of its own opinion, then burying that opinion like an artifact under balancing tests, multi-pronged considerations, and the “nexus” of various policies and doctrines, both foreign and domestic) took up the issue and decided abortion should be legal, regardless of the democratic process in the states. In other words, regardless of the voters—screw the will of the people. Let them eat cake. (Again, the Court is not democratic.)

The decision was bad for conservatives. It angered them initially and has enraged them more and more in the years since. Ironically, much of the success of the Republican Party today is due to conservative Democrats who left their own party when it became the pro-choice, one-issue party. But the decision was bad for liberals too. It became the model, the monument to an activist court. In the thirty years since Roe v. Wade, it is the contemplation of this single case that has caused Americans of every stripe to forget entirely what it once meant to have a non-political Supreme Court. Pondering Roe v. Wade, the worst opinion of the century, has left all of us ignorant about the judicial process.

So should Roe be overturned?

Yes—if all you care about is the immediate political result. Overturn the opinion and return the issue to the states. But if you would consider the long-term results, the answer may not be so simple. Ours is not the post-war nation of patriots and true believers it still was during the 1960s and even early 1970s. Thirty years after Watergate and dozens more scandals, we suffer bitter divisions. Would Americans be content with a 5-4 decision overturning Roe? More importantly, if Roe were overturned, would they respect the new law or would they see it as something that changes depending on who is in office? Isn’t that how you would see it? Isn’t that how everyone seems to be looking at the nominations of Roberts and Miers: trade O’Connor for Roberts (or Miers, or someone even more conservative) and we can overturn Roe v. Wade?

And what happens when liberals regain the majority? Will another 5-4 decision make abortion legal again?

Can the Court change the law the way you change your shoes? Do we wish to erode Americans’ respect for the law any further? To sow more seeds of cynicism about lawyers, judges, politicians, and the democratic process?

(Incidentally, these questions are entirely political and thus fall outside the traditional considerations of judges, as noted in a previous posting. Justices taking a traditional approach to their role could be expected only to analyze statutes, the text of the Constitution, and relevant case law. Should an aberrant case require overturning, such result might occur regardless of the larger affect such a ruling might have on the culture or morale of the people.)

Clearly the best solution to Roe v. Wade is a constitutional amendment, passed by a 2/3 majority of each house. Americans understand that. They can respect that. Maybe it isn’t possible yet. The only other solution to the most politicized case in the 200-year history of the Court is a unanimous ruling from the Court. That may not be possible now or ever. But even history’s worst and most controversial opinion raises the question of stare decisis—and precisely because of that controversy. For thirty-two years, the Roe decision has been hammering away at the foundations of America’s faith in the rule of law. And overturning Roe too soon or by a less than unanimous Court would only exacerbate that damage.

The play A Man for All Seasons documents the life of Sir Thomas More, England’s Lord Chancellor. A key scene includes his debate with his son-in-law, a righteous man who is frustrated by his father-in-law’s unwillingness to arrest a man everyone knows to be bad. More won’t do it without proper grounds. His son-in-law says in effect, forget the law. Tear down the law if you have to, but get the bad man. More asks to what lengths his son-in-law would go to prosecute the devil. The young man explains hotly that he would destroy the entire English law to get at the devil. More then asks where the young man would turn for protection when the devil turned on him.

Likewise, the question facing conservatives is: to what length will we go to get at a bad case—to get Roe v. Wade?

Should conservatives destroy the institution of the law and the respect of future generations by trampling stare decisis? The film’s Thomas More would answer no. And did the movie romanticize its hero? Unlikely. More is known to have once explained that were he sitting on the bench and asked to judge between his father on one side and the devil on the other, “his cause being right, the devil should have his due.”

Those who urge respect for the law and a non-political approach to judging should not be quick to advocate the brazen political move of an immediate reversal--even of the most damaging, most cynically politicized case in U.S. history. Overturning Roe v. Wade would further politicize and thereby marginalize the U.S. Supreme Court, not only in the eyes of Roe’s supporters, but also in the eyes of its enemies—and everyone in between.

In Roe v. Wade, an ostensibly a-political court was hijacked by politicians, and a legislative flag hung proudly above the bench. Reversing that case too soon might please a majority of Americans. But it would only increase Americans’ cynicism and misunderstanding about the law and judicial process. And no matter who sits on the bench or how judicious and conservative they may appear, they would still be marching under a politician’s colors.