Saturday, September 17, 2005

I can only imagine what Lloyd Carr said to them. . .

No. 14 Michigan Rolls by E. Michigan 55-0

The win was all but expected, but even Michigan wins over MAC teams are not usually this one-sided.

I can only imagine what Lloyd Carr said to the Wolverines after last week's sorry showing against Notre Dame. He's usually a very mild-mannered guy with an "aw shucks" demeanor, but when he gets angry -- truly angry -- that energy ripples throughout Ann Arbor for the next week or so.

That's commanded respect. And that's why he coaches one of the best programs in college football.

Friday, September 16, 2005

Is "Judicial Supremacy" Desirable?

   Scott Lemieux at Lawyers, Guns, and Money explores the issue, through a discussion of the constitutionality of jurisdiction stripping statutes. Not only is it thought provoking, but it is also the first acknowledgment of the potential constitutionality of such statutes by a progressive blogger.

Check it out.

"Okay, now answer the question as The Bostonian Exile: the man."

The Midwestern Progressive posed some good questions to me in the comments to the last post. (Full disclosure: I have not touted his new (three-day-old) web presence nearly enough. He, too, blogs anonymously, though if you know me as of today, you probably know him as well. He's off to a roaring start, so go check it out already -- after you finish reading here, of course.) I had thought they were lost in a Blogger malfunction, but I managed to find them sitting in my inbox. They are as follows:

I wonder though - law aside, what do you think of Newdow's (and ultimately the "real" complainants') case?

Is it proper to have public school students recite the pledge as it is worded today?

Or would it be preferable to go back to the original wording of the pledge and leave it in public classrooms?

Alternatively, should the pledge be left out of public school classrooms altogether?


To give the simple answer, I am somewhat agnostic on the propriety of public school children reciting the Pledge in its current form. But let's go through the questions in somewhat greater depth.

I'll start by saying what a lot of people believe: Michael Newdow is a self-aggrandizing blowhard with dangerously thin skin. To this assessment I will add that, particularly for someone educated at the Michigan Law School, his writing and reasoning abilities are incredibly underwhelming. Even a marginally less arrogant front-man would work wonders for their cause.

I would support the recitation of the pledge in either form and, though recitation is my personal preference, doing away with the Pledge altogether would not bring about the apocalypse.

If the words of the Pledge are edited, though, I am more concerned about the distant effect than I am about the immediate one. Religious discourse is increasingly marginalized, discounted, and disregarded in our body politic, which to me strays from something valuable the Founders assumed about the republic they created. In the rough draft of the Declaration of Independence, Thomas Jefferson, who was not himself a religious man, wrote:

When in the course of human events it becomes necessary for a people to advance from that subordination in which they have hitherto remained, and to assume among powers of the earth the equal and independent station to which the laws of nature and of nature's god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the change.

Emphasis added. To me, the fact that a nonreligious Deist like Jefferson conceived of human freedom as arising from a divine source is instructive of how many viewed the world in which they lived and the republic they were creating. Prevalent among many people of that time was a notion that divine providence, scientific advances, and the progress of man were all somehow inextricably linked. Certainly, there were disagreements over this, and certainly there were atheists in the group (Thomas Paine comes to mind). I suppose it helps that many of the Founders (John Adams, for example) and their Enlightenment cohort were Unitarians. I suspect things would have been more turbulent had they been largely Baptist, Catholic, or any number of other faiths less open to divergent views. All the same, invocation or recognition of some divine power has a long history in how our body politic and the individual people who formed it expressed and understood our new nation, if not in how they defined it. That there were other understandings of the world and the political order at the time of the Founding, to me, does not discredit this construct, but rather enriches it.

Of course, I am concerned about too much spiritual invocation in public matters, so I do recognize the opposite position. I think that it is not necessarily excessive today, but it could be so in the near future. However, I am more immediately concerned that we are at the beginning of a new movement (one I am sure Newdow sees himself as leading) to sterilize public discourse of any and all references to God. The Pledge. The national motto ("In God we trust"). The appointment of a congressional chaplain. All play a role in this greater idea that was prevalent at the time of the Founders.

Americans have a notion of continuing progress throughout history; our nation may have represented an ideal at its inception, but it was far from perfect. Today, on the eve of the two hundred twenty-eighth anniversary of our Constitution, it is still far from perfect. However, I think we need neither disregard our past nor completely disassociate ourselves from it to advance to a better future.

Thursday, September 15, 2005

MSM Reports "Pledge Unconstitutional", Misses Bigger Story

Wednesday, the press reported that Judge Lawrence Karlton ruled that the words "under God" were unconstitutional as violations of the Establishment Clause of the First Amendment. The news was of broad enough interest that it quickly made its way into the record of questioning at the John Roberts confirmation hearing. But, that's apparently only the start of the story.

I logged onto the public case documents system for the United States District Court for the Eastern District of California to find the opinion. I accessed it without any trouble and started skimming it for the rationale on the merits that would frame the debate.

However, I found myself completely baffled after the first reading. Apparently, Judge Karlton had decided that the Supreme Court's prior dismissal of Newdow's case for lack of "prudential standing" had left in place the Ninth Circuit precedent holding the words "under God" in contravention of the United States Constitution.

How could that be? Typically, if a claimant has no standing, that's the end of the ballgame; it's a non-case. Where was this judge drawing the distinction?

I examined this section a little more closely, finding what appeared to be a severe stretch of the precedent from a single SCOTUS case, and a single case from the Eleventh Circuit, a court clear across the country with no binding authority on Karlton's court [Edited the next day to add: and a single Ninth Circuit case that appears limited to an altogether different factual scenario]. From that inference on an inference, it appears that Karlton would hold that the previous merits ruling had been left untouched. I was flabbergasted.

I set the opinion aside for a couple of hours to try and work out the problem in my head. Standing problems (and everything arising from them) can be incredibly diffcult. Nevertheless, my gut told me that something was just not quite right. Did Karlton let his conscience dictate the result, then try to find a way to support his decision? To my mind, basing a result solely on a judge's personal predilictions -- no matter how compelling -- is an example of the highest order of judicial activism. It's a term I have grown to hate as meaningless, but what else could I call this? But, even if that was the case, why would he do this in (what I had learned was) a defense motion to dismiss Newdow's claim? It's a long way from "Plaintiffs have no case," to "Plaintiffs prevail without offering any evidence." Why would this judge not wait, at the least, until summary judgment when arguments on the merits of the present case would have been issued?

I could not just drop these nagging questions. I picked up the opinion again. This time, I finished what I had started earlier. The devil is in the detail, or here, the footnotes. In footnote 21, after noting that adult legislatures may open sessions with prayers, but students at a high school graduation may not:

This court is, of course bound by the distinction noted above, but as the saying goes, it is not gagged. The cramped view of the Establishment Clause underlying the distinction between Marsh and Lee ignores a primary function of the First Amendment; namely, to act as a bulwark barring the introduction of sectarian division into the body politic, and thus advancing the ideal of national unity.

[Emphasis mine.] Note the lack of a citation on the last point. Judge Karlton, it seems, has an axe to grind -- one belonging for purposes of this litigaton to him alone -- with his bosses in Washington. And he is letting them know of his beef in a published opinion of his court.

We arrive at Judge Karlton's order:

For all the foregoing reasons, the court ORDERS as follows:

1. Defendants motions to dismiss the claim as to the recitation of the Pledge in a classroom is DENIED; and

2. As to all the other causes of action, the motion is GRANTED.

IT IS SO ORDERED.22

As soon as I see that, though overlooked in every press report I had read, Judge Karlton had wiped most of the Plaintiffs' claims, I also notice a substantial footnote hanging at the end of the opinion:

22 This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Courts recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nations asserted religious heritage, and thus are permitted. As last terms cases, McCreary County v. ACLU, 125 S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125 S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster. It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that this is a Christian nation. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting under Christ for under God in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district.

[Emphasis mine.] Suddenly, things are much clearer. He did not want to deal with the precedent created in the two Ten Commandments cases last term, in which only Justice Breyer was in the majority for both, because he deemed it unworkable and he apparently wanted to make very clear his displeasure with the present condition. Waiting until summary judgment would have deprived him of this unique soapbox.

In fact, he probably recognized that there is a pretty good chance that this present case will be reversed and remanded on appeal. In retrospect, his argument that the Supreme Court let stand the former Ninth Circuit precedent is sufficiently feeble that it is reasonable to believe that not even the oft-reversed Ninth will embrace it.

In the end, this judge may well have prolonged litigation to make a point about his disdain at the state of the law, effectively compelling both sides to suffer increased legal costs.

Except, perhaps, for Mr. Newdow himself. After all, does he really do much else anymore besides litigate this single issue without much lasting success?

UPDATE: Doug at In The Agora expresses some good criticisms of my argument and notes, perhaps correctly, that I oversimplified the standing issue above.

UPDATE 2: Howard Bashman issues a parallel concurring opinion that is far more artful (and informed through experience) than my own. Patterico agrees, as does Eugene Volokh, though the latter is a bit more circumspect about his forecasting abilities.

Wednesday, September 14, 2005

Two sentences

Dahlia Lithwick's take on how John Roberts is holding up at his confirmation hearing:

Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.

The rest is required reading.

The Questioning Continues

Kevin McKague was kind enough to send a link to the transcript of the confirmation proceedings. I will update below over the course of the day.

Senator Brownback: Some questioning on abortion, some might say the mirror image of the questioning from Demorcatic senators from yesterday on the issue. Segues into Brown v. Board of Education and Plessy v. Ferguson. The senator really needs to stop referring to Kansas as the "host state" of Brown. Does he not get that Brown was hardly a proud moment for Kansas since the state was segregating its schools and only stopped when the Court ruled the practice unconstitutional? Playing up the role of his home state is probably not a good thing to do in this case.

Tuesday, September 13, 2005

Hey, I was watching that!

   CNN cut away from John Robert's confirmation hearing for its evening programming before the hearing day ended. I don't have CSPAN3 here, and I don't quite trust my connection to carry the video from their website, so that's all for now.

   When I get my hands on a transcript, I'll add some short comments below concerning the remaining senators questions.

The Questioning Begins: Initial Impressions

As the questioning of John Roberts begins today, I offer some impressions of the questioning under each Senator. I will keep this at the top of the page for today and may update it at the day goes on.

Senator Spector: Perhaps takes some of the wind from Democratic sails by opening the questioning on abortion, right to privacy, and other hot button issues. Roberts says that he supports a right to privacy, though he seems to have his own take on where it comes from. Though he acknowledges that it arises from the First, Third, Fourth, and Fifth Amendments, he omits any discussion of "penumbral reasoning" that appears in Griswold v. Connecticut. I dispise these penumbras used as justification because of concerns that it opens the door to judicial whimsy, but the framework Roberts discusses sounds like something that a strict constructionist could sign onto with a little more information, as well as one that more liberal senators are going to have a slightly more difficult time opposing. Time will tell.

Senator Leahy: Two things become apparent over the course of this half hour of questioning: John Roberts, until proven otherwise, is the smartest person in the room on the state of the law; and, because of this, the Democratic strategy is probably best typified as "guilt by association." When the discussion is on the finer legal points, Leahy is trying very hard to make his points, but is pretty well outmatched by Roberts. However, to counter this impression when discussion of politics or policy, Leahy is signaling to the other Democrats where to go with questioning, always tying Judge Roberts to the "Reagan Office of White House Counsel," or the "Kenneth Starr Solicitor General's Office." Roberts is not afraid to fire back, though; when asked about a Title IX case where the government (and Roberts as its attorney) argued against the existence of a remedy for a teenage girl who had been sexually harassed by her high school teacher, after Leahy tries to paint the position as a sympathy with the defendant teacher, Roberts sends a salvo of his own by noting that he abhored the teacher's actions, that circuits courts had previously taken the position then articulated by the government, and that the courts had taken that position because Congress had failed to spell out an explicit remedy, leaving the existence of any such remedy completely open to question. Score a point for willingness to throw misgivings about the required outcome back at the body that drafted the law in the first place.

Senator Hatch: Ho hum. Misgivings about overreach by the court. Took exception the Violence Against Women Act, which he sponsored, being struck down. [Look for further updates here.]

Senator Kennedy: The Liberal Lion rears his head. For the first time in this hearing, we hear crosstalk between a senator and Judge Roberts. Kennedy succumbs to giving long-winded speeches that peter out before arriving at a discernable question. Some contention over Kennedy's characterization of Roberts's own words. Kennedy later appears on CNN expressing his regrets that Roberts is not going to toe his line. Surprise, surprise.

Senator Grassley: CNN pre-empted his questioning for the presidential press conference and the Kennedy interview. TiVo is unforgiving like that.

Senator Biden: Jokes going in that he wishes the nominee were someone else, because at least he could then be sure that he "knows as much" as the nominee. It is becoming clear that Biden is serious about running for president; I don't recall Biden playing his own "nice guy" card like he has the last couple of days, all the while asking tough questions. Biden is the first Democratic senator to put on a good offensive. Good grilling, drawing contrasts between the hearings and answers of Ginsberg and Roberts. Questioning turns to Violence Against Women Act. Biden alternately looks in control and flustered. Jeff Greenfield rightly notes that this is the first time that we see Judge Roberts at all "on his heels". Tough round of questioning, if a bit excessively showy.

Senator Kyl: Asks about the propriety of using foreign law as precedent in anazlyzing American constitutional law. Roberts is apparently against this. Roberts also discusses his days clerking for Judge Friendly and Justice Rehnquist.

Senator Kohl: Largely pre-empted by CNN interviews. Some discussion of how Roberts's views have changed over the years.

Senator DeWine: The senator notes that he is the halfway point of the panel. Discussion about oversight of FISA court. Also discussion of the First Amendment, generally, and the role of the court in overturning legislation.

Senator Feinstein: Opens with a litany of supposedly implied misogynistic statements. She's trying to score points where there are none to be had. Now going into some vague questioning on "beginning of life" and "end of life" issues. She fails to score any real points as to the Mission Viejo ("hapless toad") case.

Senator Sessions: Splitting his time due to a floor vote at 4:30.

Monday, September 12, 2005

Dear Mr. President,

   What took you so damn long to dispatch embattled FEMA director Mike Brown?

Sincerely,

The Bostonian Exile

Game on!

   The confirmation hearings for John G. Roberts begin today with a whimper, consisting mostly of opening statements.

   Look for the sparks to start flying tomorrow.

Sunday, September 11, 2005

Four years later

   Take a moment to think about what we remember, and what we've forgotten.