FedSoc Blog

At Liberty Law Blog, Mike Rappaport, professor at University of San Diego law school, weighs in on The New York Times' change of position on filibusters:

I don’t think there is anything unconstitutional or improper about filibustering nominees.  Nor do I believe the Senate should necessarily vote to confirm qualified nominees if they disagree with the nominee’s legal philosophy.  There is nothing in the Constitution that requires the Senate to defer to the President.

That said, I believe the best arrangement governing nominees is as follows: Lower court judges should be subject to a majority confirmation rule.  Thus, they should not be subject to being filibustered.  Supreme Court Justices, however, should be subject to a supermajority rule for confirmation.  They have enormous power and there is a benefit from having the more centrist justices that a supermajority rule would produce.  I defend this arrangement in these two articles written with John McGinnis.

This arrangement should be adopted through an agreement by both parties and now would be a good time to do so.   . . . [N]o one knows who will win the next Presidential election or hold a majority in the Senate.  Thus, an agreement to establish the arrangement in January 2013 would be possible if there were support for it.  But there is no real support for a supermajority rule for Supreme Court appointments.  I don’t even think there is Senate support to eliminate filibusters of lower court judges.

In 2003, the Federalist Society published a white paper on filibusters and the constitution authored by Reid Alan Cox, Tammi Kannar, Allyson Newton Ho, and Evan Rikhye.  

You might also wish to read the transcript of the 2003 hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights on the subject “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.”  Among the speakers are Steven G. Calabresi, John C. Eastman, Bruce Fein, Michael Gerhardt, Marcia D. Greenberger, and Douglas W. Kmiec.

The Los Angeles Times reports that the implementation of the contraceptive mandate in the Obama administration's healthcare law is likely to end up in the Supreme Court:

The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the healthcare law, appear to be on another collision course over whether church-run schools, universities, hospitals and charities must provide free contraceptives to their students and employees.

The dispute stems from one of the more popular parts of the new healthcare law: its requirement that all health plans provide “preventive services” for free. That category includes vaccines and such routine screenings as cholesterol checkups and mammograms. Starting this year, it also includes coverage of birth control pills, IUDs and other contraceptives.

Catholic leaders reacted fiercely when the administration announced in recent days that it would hold most religious institutions to that mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”

Already two religious colleges have sued, and their cause got a major boost earlier this month from a unanimous Supreme Court decision that greatly expanded the definition of religious freedom.

Archbishop Timothy M. Dolan in New York, president of the U.S. Conference of Catholic Bishops, denounced the requirement as “unconscionable,” saying the church should not be forced “to act as if pregnancy is a disease to be prevented at all costs.”

Women’s rights groups, on the other side, say that without the law’s coverage, hundreds of thousands of women, including students at Catholic universities and workers at church-related hospitals, would be denied coverage for one of the most commonly used forms of healthcare.

For FedSoc's previous coverage of the health care and conscience debate, see here.

The Chronicle of Higher Education profiles Jonathan Haidt, a psychologist who claims that the social sciences would be improved by the influx of more conservative professors, the presence of which would help mitigate liberal biases.  A professor of psychology at the University of Virginia, Haidt stirred controversy last year by making such points in a talk he gave at the annual convention of the Society for Personality and Social Psychology.  Haidt's newest book, The Righteous Mind: Why Good People Are Divided by Politics and Religion, will be published next month.

According to the Chronicle:

One of the core ideas in Jonathan Haidt's new book is that morality "binds and blinds." As the psychologist dug into that topic, it led him in an unexpected direction: examining what he sees as the liberal bias of his own field.

The University of Virginia professor went public with his concerns in an incendiary talk last year, portraying social psychologists as "a tribal moral community" bound together by liberal values.

In the speech at the annual convention of the Society for Personality and Social Psychology, the main scholarly organization for social psychologists, Haidt argued that the field discourages conservatives from entering—and leaves those who do feeling like closeted homosexuals. He called for affirmative action to make the field 10 percent conservative by 2020.

In support of his ideas, Haidt pointed to "taboos and danger zones," subjects that turn on the moral "force field" and prevent researchers from exploring "the full range of alternative hypotheses." He offered as one example the controversy that engulfed Lawrence H. Summers, a former president of Harvard, after he speculated that innate differences might partially explain why men are overrepresented in mathematics and science departments at leading universities.

"We psychologists should have been outraged by the outrage," Haidt said. "We should have defended his right to think freely."

Haidt also pointed to the extreme underrepresentation of conservatives in social psychology. When he surveyed the 1,000 colleagues who attended his talk, 80 to 90 percent identified themselves as liberals. Only three people said they were conservatives.

In an editorial over the weekend, The New York Times called for a stop to filibusters against nominees for presidential appointments:

The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.

This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly.

To get a sense of just how "major" this "change of position" is, compare this NYT editorial from 2005, during the George W. Bush administration:

The Senate will return from Easter vacation with nuclear options on its mind. Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable. In the past we've been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes.

Similarly, in 2003 the Times' editorial board called for Democrats to maintain the filibuster against Miguel Estrada, whom President Bush had nominated for the United States Court of Appeals for the District of Columbia Circuit:

Republicans are attacking Democratic senators for using a filibuster. The criticism rings hollow, given that some Republicans making it, including the majority leader, Bill Frist, voted to filibuster when President Clinton nominated Richard Paez, a Mexican-American, to an appeals court.

UPDATE: At the Volokh Conspiracy, Jonathan H. Adler defends the spirit of the NYT's current position:

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Writing for The Hill, Alan Charles Raul, a partner at Sidley Austin who served as vice chairman of the Privacy and Civil Liberties Oversight Board, offers his concerns about the newly created Consumer Financial Protection Bureau:

The Department of Justice’s Office of Legal Counsel opined recently that since most of the Senators weren’t around during their pro forma sessions, the Senate wasn’t really in a position to advise and consent regarding the President’s nominees. But OLC’s opinion never actually concluded that the specific recess appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau was constitutionally valid. This raises serious issues for anyone concerned about excessive concentration of government power. 

The reason the OLC opinion doesn’t address whether the Senate was available to consider Mr. Cordray’s nomination is obvious. The Senate did in fact consider Mr. Cordray’s nomination. On December 8, 2011, the Senate provided President Obama with all the advice he needed and rejected cloture on Cordray’s nomination by a 53-45 vote.

The Senate’s problem with Cordray was not at all personal, but rather, was a matter of principle involving serious constitutional concerns about the new agency itself. Sen. Richard Shelby (R-Ala.), wrote to President Obama on May 5 calling on him to support structural changes to the CFPB that would enhance oversight and make the new agency more accountable. As Shelby as said, “Unless Congress enacts reform, it is only a matter of time before this concentration of power is abused or misused to the detriment of American businesses and consumers.”

 So whether there was a constitutionality sufficient “recess” to appoint Mr. Cordray is a red herring – it is the director’s unchecked power that is the fundamental problem. The new agency simultaneously offends the constitutional authorities – and responsibilities – of both the Congress and the President. And it is no cure that both branches acquiesced in the infringement of their own authority. The Dodd-Frank legislators simply let their good intentions blind them to the need for respecting traditional checks and balances.

In December 2010, C. Boyden Gray and John Shu expressed similar misgivings about Dodd-Frank in an article they published in Engage, FedSoc's practice journal.  As they wrote in their introduction:

There has been much debate over whether Dodd-Frank will accomplish its stated intent, but there is also a growing exchange about whether the law is constitutionally infirm, primarily due to separation of powers, vagueness, and due process. Central to this discussion is the fact that Dodd-Frank grants bureaucracies broad and unchallengeable discretionary authority; we query whether the Act provides effective oversight by any branch of government—the President, Congress, or the Judiciary.

Writing for The American Spectator, Jack Park, an attorney at Strickland Brockington Lewis, comments on the Supreme Court's decision in Perry v. Perez:

On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court's ruling highlights the importance of a state's legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.

In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn't done with its work.

The Supreme Court told the Texas court to give greater respect to the legislature's work. As the Court explained, that's as it should be, given that redistricting involves the making of "policy judgments" that courts are "at best, ill suited" to make.

The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out "any discriminatory purpose" on the part of a covered jurisdiction.

When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren't. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don't have the purpose or effect of "denying or abridging the right to vote on account of race or color."

The Wall Street Journal reports that a federal court in North Dakota dismissed a complaint filed by the Obama Justice Department against three oil companies under the Migratory Bird Act:

Continental Resources, Brigham Oil & Gas and Newfield Production Company were accused of causing the deaths of six Mallard ducks and one Say's Phoebe, which had waded in oil pits. The criminal charges carried fines and potential prison sentences.

In a ruling that can only be called withering, district Judge Daniel Hovland contrasted "incidental and unintended" deaths during "legal, commercially-useful activity" with "hunting and poaching." The court rejected U.S. Attorney Timothy Purdon's "expansive interpretation of the law" because it "would yield absurd results": If the government's case carried the day, "many everyday activities become unlawful—and subject to criminal sanctions—when they cause the death of pigeons, starlings, and other common birds."

The newspaper had previously claimed that the Obama administration was selectively prosecuting the Migratory Bird Act against oil companies but not companies generating energy via wind turbines, which kill many birds.

For some of the Federalist Society's previous examination of overcriminalization in federal law, see here. On January 31st, FedSoc's Triangle Lawyers Chapter will be hosting a talk on the subject in Raleigh, North Carolina.  The guest speaker is John S. Baker, Jr., Distinguished Scholar in Residence at Catholic University of America Law School and Emeritus Professor at Louisiana State University Law School.

Brian Kalt is guest blogging at the Volokh Conspiracy regarding his new book Constitutional Cliffhangers.   In his first post, the Michigan State University professor defines "constitutional cliffhangers" as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.”  Why should we care about scenarios that many might think are bizarre and unlikely?  Kalt explains:

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late.

The Supreme Court today delivered its opinion in United States v. Jones, a case regarding whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violated the Fourth Amendment.  (Find Orin Kerr's earlier SCOTUScast on the case here.)  The court ruled unanimously that the use of the GPS tracking was in fact an unconstitutional search.

Justice Antonin Scalia delivered the opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Sonia Sotomayor (who also filed a concurring opinion), and Clarence Thomas:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

Justice Samuel Alito filed a concurring opinion, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan. Alito wrote:

[The majority's] holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Fox News reports:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.

The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena. 

Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

"To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." Romero told Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.

Ken Kersch, a political science professor at Boston College, recently published a law journal article that might be of interest.  It's titled "Beyond Originalism: Conservative Declarationism and Constitutional Redemption."  According to the introduction:

Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.

Numerous websites--including Wikipedia, Google, Reddit, Craigslist--went dark today to protest the proposed Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA).  The Daily Caller reported on one prominent defender of the legislation:

Former Connecticut Democratic Sen. Chris Dodd, currently chairman and CEO of the Motion Picture Association of America, condemned the SOPA “Blackout Day” as a “gimmick” and an “abuse of power” by the Web companies participating in the protest against pending anti-piracy legislation. . . .

While supporters of the legislation — including the MPAA, the Recording Industry Association of America and the U.S. Chamber of Commerce — have argued that legislation is needed to tackle the problem of foreign “rogue sites” that peddle counterfeit products to Americans, opponents of the legislation argue that it would jeopardize free speech.

Dodd . . . issued a statement on the eve of Wednesday’s “blackout,” in which he said that the blackout day was a “dangerous” “gimmick” “designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.”

“It is an irresponsible response and a disservice to people who rely on them for information and use their services,” said Dodd.

"It is also an abuse of power given the freedoms these companies enjoy in the marketplace today,” said Dodd, “It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Writing for Forbes, Josh Barro of the Manhattan Institute attempted to place the debate over SOPA in historic context by arguing that the MPAA's fear of the internet is reminiscent of the organization's earlier fear of VCRs:

Thirty years before SOPA, the MPAA was in Washington, demanding legislative protection from a new and dangerous technology: the VCR. Here’s then-MPAA head Jack Valenti, testifying before a House Judiciary Subcommittee in 1982:

 I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone…

The Mediastat’s analyst says that 67 percent of the VCR owners own no prerecorded cassettes and 72 percent plan to buy one in the coming year and 48 percent have never rented a prerecorded cassette. The major source of programing material is home recording, which thus preempts prerecorded tapes and their revenue…

The loser will be your public because they don’t have these expensive machines. And that is what I am saying, sir. The public is the loser when creative property is taken and here is the reason why. The investment of hundreds of millions of dollars each year to produce quality programs to theaters and television will surely decline.

Of course, home video (and later DVD) went on to become a hugely profitable delivery channel for movie studios. Far from decimating the industry, it grew profits, especially for studios like Disney with valuable back catalogs. It just goes to show, disruptive technologies can have different effects than you expect.

SCOTUSblog reports on the first lawsuit opposing President Obama's recess appointments:

A group of business organizations and individual firms on Friday began the first challenge to President Obama’s new government appointments while the Senate is out of town, using a case involving the National Labor Relations Board to test the issue.  In a motion filed in U.S. District Court in Washington, along with a legal memorandum, the challengers argued that the NLRB has no power to go ahead with a pending rule on workers’ rights because the three new appointees were not legally named, so the Board has no operating quorum.

Professor John McGinnis and Kirkland & Ellis associate Russell D. Mangas team up in the Wall Street Journal to suggest a major overhaul in how lawyers are educated and licensed:

The high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees. And higher fees place legal services out of the reach of middle-income families at a time when increasing complexity demands more access to these services. In short, the current system leaves citizens underserved and young lawyers indebted. . . .

Here is a straightforward solution: States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.

This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

No sheriffs were shot, but a photo of reggae star Bob Marley made an appearance in a recent decision written by Judge Richard Posner.  In a ruling regarding a prison inmate's pro se suit to be permitted to wear dreadlocks on religious grounds despite his not being a Rastafarian, the judge included the photo to demonstrate that "Dreadlocks can attain a formidable length and density," and thus can be a hiding place for weapons.  However, Posner ruled that since the prison permits Rastafarians to wear dreadlocks for religious reasons, if the prisoner genuinely believes his religion similarly obligates such hair, he ought to be permitted to wear it as well.