Tuesday, November 29, 2005

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?

Tuesday, November 15, 2005

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.


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.


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.


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....

Monday, November 14, 2005

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.

Thursday, November 10, 2005

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 20th 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 20th 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.”

Monday, November 07, 2005

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...."

Friday, November 04, 2005

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.

Wednesday, November 02, 2005

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.

Tuesday, November 01, 2005

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.


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.

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?