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Lawprof Letter Against Roberts:
Over at The Yin Blog, lawprof Tung Yin takes a critical look at the recent letter signed by 160 law professors opposing the nomination of John Roberts. An excerpt:
  The weakness of the letter, as I see it, is that it fails the basic lesson of writing: "show, don't tell." The letter tells us that Judge Roberts does not deserve to be on the Supreme Court because the letter writer does not like Roberts' views of the right to an abortion or of the scope of the Commerce Clause or other areas of con law. What the letter does not do is show us that Roberts' views are intellectually flawed, deceptive, or otherwise objectionable on any basis other than outcome.
  Thanks to Michael Cernovich for the link.
Jim Rhoads (mail):
Any comments on the Taylor article in the NY Review of Books here?

While I do not agree with it, I believe we will be hearing many of the points it makes from the Minority Senators. It is well written skillfully done. I believe he makes as much as possible from the positions expressed in various memos Judge Roberts has written as a young lawyer.

It would be good to get on top of this over the weekend to break it down and get a good counter. Let the battle begin.
9.9.2005 10:11pm
Lab:
Non-recognition of the right to privacy is a big enough reason to oppose *any* SC nominee.


Resumes are neither here nor there.
9.10.2005 1:17am
David M. Nieporent (www):
So what you're saying, Lab, is that abortion (*) should be a litmus test. I suspect that this is the position of the vast majority of Democratic senators -- but if they're going to filibuster any judge nominated by Bush, we're going to be in for a long year.


(*) Let's not euphemize about "privacy," since there's no constituency out there to ban contraception.
9.10.2005 1:20am
BigBob:
Nieporent, Privacy is of central concern even to many who are uncomfortable with abortion. Gays and lesbians, for example, receive their strongest constitutional protection under the Due Process Clause, thanks to Lawrence (which, technically, did not refer to "privacy," but "liberty"). And there IS indeed a constituency opposed to contraception, and in some parts of the country, they could get local laws passed restricting it. There are also concerns other "privacy" rights, like the right to make marriage choices without state discrimination (this is NOT just a gay marriage issue, and this is not just an equal protection issue).
9.10.2005 12:10pm
Chaz (mail):
A letter stating an opinion or position from lawyers without showing evidence or proof toward that position? Sounds very un-lawyerlike to me, but that's just my opinion from a non-lawyer.

I agree that any justice who ignores the rights to privacy should be under close scrutiny (at best). However, I disagree with the notion that abortion fits under the rights to privacy. As to gay marriage and other issues, let them be settled as they may, although I think that the whole problem with gay marriage is just a matter of definition. Far from trivial, but that's where the crux of the matter is.
9.10.2005 12:55pm
SimonD:
It would seem to me that anyone who claims that there is a right to privacy (or abortion, for that matter) in the constitution should be required to point to the single exact clause in which it is delineated...

Maybe there should be a right to abortion or privacy in the constitution. But there sure as heck isn't one there as amended to date. As Mr. Justice Black wrote, dissenting in Griswold:
"The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against 'unreasonable searches and seizures.'

...One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy" as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures...I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision
. (Griswold, 381 U.S. 479, 508-10)
Like Black, "I cannot consider the Bill of Rights to be an outworn 18th Century 'strait jacket'", and I agree with his judgement that:
"Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights."(Adamson, 332 U.S. 46 , 88)
I do not much like this mindset which makes the constitution the swiss-army knife of a Juduciary recast as a legion of fixer-uppers, out to right every wrong, make just every injustice just; in Dahlia Lithwick's phrase, "a secret, super-textual constitutional role as the nation's caped crusaders—its members authorized to leap into phone booths around the world and fly back to Washington in a single bound". There seems to be a general feeling among such people that if the bill of rights does not protect everything, it is worthless and useless. The rights that it protects, as Mr. Justice Black noted, are important rights. Those which it does not are matters for each state to decide. While there is some fairly good originalist literature suggesting why some or more fundamental rights may be protected by the ninth amendment (Barnett, Droddy etc.), I'm not convinced.
9.10.2005 3:26pm
Random Law Talking Guy (mail):
I had the unique pleasure of being taught "ethics" by Prof. Bob Drinan at G-Town. I thought at the time that he was just an outlier, not to be taken too seriously. But over the following years, a number of his colleagues privately expressed to me strong approval of his radical Marxist ideals.

Sorry, but since then, this lawyer has never had much respect for law professors as a group. Some individuals, yes, but when they all get together, they pander to the most leftward common denominator of their group and the result is almost always asinine.
9.10.2005 3:41pm
jgshapiro (mail):
Interesting to peruse the list of signatories to the letter to Specter and Leahy: many from 2nd tier law schools or worse (the University of the District of Columbia law school? Nova Southeastern University law school?); several clinical professors; almost no professors with national reputations outside the academy.

I am not a member of the academy, so maybe some of these names are better known that I realize within the academy, but the only one I recognized was Erwin Chemerinsky. Where are the other leading names affiliated with the Democratic Party, such as Tribe, Sunstein, Estrich, etc.? Not to mention the professors without obvious leanings toward the left?

Seems to me that the letter will just be seen as a group of very liberal professors stating that they would prefer a more liberal judge. Shocking! Will it have any impact on moderate Republicans (or even moderate Democrats) whose votes might be swayed? Doubtful.

I'm sure you could have found 160 professors from Pepperdine and the like to write a counterpart letter opposing the nomination of Ruth Ginsburg. Does anyone believe it would have made any difference? To make a difference with Roberts, you would need opposition from lots of professors who are nationally well-known and/or from prominent law schools *and* regarded as politically neutral or to the right. I haven't seen it.
9.10.2005 5:10pm
sir mix a lot:
these aren't even 2nd tier schools; they're third and fourth tier schools. and the professors are nobodies.
9.11.2005 12:32am
Gene Vilensky (mail) (www):
To those who say, show me where in the Constitution it says that you have a right to privacy, it's called the Ninth Amendment my friend. Yes, I know that Robert Bork thinks that it's an inkblot and Scalia doesn't like it much either, but it is important.

Those who say that the right to privacy ought to be a litmus test, why not also make the right to property a litmus test? How about a right to make one's living as one sees fit? Breyer and Ginsburg would fail instantly on those grounds.

I think that those rights are as vital, especially in the context of American political thought, as the right to privacy is. Why not also make knowledge of basic vocabulary a prerequisite? Somehow, Justice Jackson of "neither commerce nor interstate is necessary for something to be interstate commerce"-fame got on the Court.

Look, everyone picks out their favorite hobby-horse to pound the other side over the head with. Chemerinsky likes privacy but hates property. Scalia likes property but hates privacy. Who cares?
9.11.2005 5:50am
BigBob:
There's the Ninth Amendment, as Gene points out. And there's also the Privileges and Immunities Clause of the 14th Amendment. There's a powerful (and obvious) textual and historical argument that the clause protects basic things like privacy, notwithstanding the Supreme Court's stupid and tortured construction of it over 100 years ago. So yes, the Constitution's TEXT protects the right to privacy.
9.11.2005 10:08am
SimonD:
<blockquote>So yes, the Constitution's TEXT protects the right to privacy.</blockquote>Even the most ardent proponents of the "rigth to privacy" don't pretend that the right is TEXTUAL, my friend. They resort to penumbras and inferences; the "spirit" of the document, anything but text. I don't buy that the ninth amendendment says any such thing, and while the P&I clause certainly supports incorporation, it doesn't support a nebulous "right to privacy" any more than does the text it incorporates.
9.11.2005 5:46pm
BigBob:
[Sigh].

"Even the most ardent proponents of the "rigth to privacy" don't pretend that the right is TEXTUAL, my friend. "

Actually, this is completely wrong. You seemed to be confusing two things: (1) what people think and (2) their litigation/political strategy. The ACLU and their friends don't argue about P&I Clause and the 9th Amendment because they know the usually-convservative Supreme Court wouldn't go near those clauses...and the lower courts would be even more reluctant. But most "ardent supporters" of privacy rights do recognize that the Constitution's text protects privacy. And in any event, the fact that some of them don't rely on the text doesn't mean they couldn't, so I'm not sure what you're trying to argue.

As for "penumbras," nobody argues about penumbras anymore, though conservatives love to pretend they do. Liberals make arguments about privacy as being a "liberty" textually protected by the due process clause. I know the flaws in that argument, so you don't need to tell me them. But liberals only make the flawed arguments because the Supreme Court, by butchering the P&I clause and ignoring the 9th amendment, has left them no choice.

Finally, you might not like the "nebulous" concept of right to privacy, but you have to admit that the words "privileges and immunities" are pretty nebulous themselves. Are we just going to ignore the text when we need it difficult to interpret?
9.11.2005 6:48pm
SimonD:
Well, if nothing else, we can at least agree that the Supreme Court has erred grievously in reading the P&I clause out of the text. As mentioned above (and here), I would rest incorporation on P&I.

I can't get on board for the suggestion that the ninth amendment creates a resevoir of justiciable rights, to be determined as the Justices see fit. As mentioned above, I've read materials that try to make an originalist case for it, I've read materials which make a living constitution case for it; and although I'll grant you that it's less prima facie preposterous to use the ninth amendment as a resevoir than, for example, the due process clause, I'm not convinced. The ninth and tenth amendments both explicate the federal structure, confirming that those rights and powers which have not been surrendered remained unchanged. Specifically, the ninth amendment declares that the bill of rights is not a complete list of the rights of the people, but rather, a list of the rights protected from the federal government's actions. All other rights are reserved to the people, save those which they might at various times choose to surrender to their state governments via state constitutions. This provision is perfectly meaningfull and important, even if it doesn't support the weight of a resevoir of unenumerated rights, which I simply don't believe it does.
9.11.2005 7:10pm
BigBob:
to the extent that you're arguing that unenumerated rights should be less judicially-enforceable than other rights, you're doing exactly what the Ninth's do-not-disparage language prohibits.
9.12.2005 1:03am
SimonD:
Don't you think that argument's a little circular, Bob? Your argument is that the ninth amendment creates rights enforcable in Federal courts, while I'm saying that it does no such thing; in rebuttal, you say that I'm disparaging the rights guaranteed by the ninth amendment.

Read the text. Look at the context of the time. Look at what the framers were concerned about. The Federalist argument was basically that enumerating some rights might lead to a construction that said that all that wasn't reserved is given, which is the opposite of the constitution's design, in which all that is not given is reserved. The ninth amendment says, in effect, "the following list is not an exhaustive list of all the rights of the people, but rather, those rights which are deemed so fundamental to the concept of ordered liberty that they must be protected here". Within this paradigm, "disparaging" the other rights does not mean denying that those rights are justiciable, but rather, disparaging them would mean claiming that the bill of rights was an exhaustive list of the rights of the people. Which sounds absurd to our modern ears, but when you look at the context of the time, when you look at the ratification debates that surrounded the overall schema of the Constituion, the purpose of the ninth and tenth amendment snap into sharp focus. They are federalism provisions. And not, as is commonly written, "mere federalism provisions"; I hate that phrase, because it suggests that somehow federalism provisions are incidental to the constitution; they are not, the federal structure and how the federal government related to the states and to the people was THE issue surrounding the constitution at the time of ratification, as I read the history.

Incidentally, for your version to ring true, the State legislatures would have had to sign off on a text that allowed their actions to be reviewed and nullified by federal courts on the basis of no actual text in the constitution. These folks were already concerned that the federal power went too far in terms of what it DID enumerate - are we really to believe that they either blithely said "okay, the Federal judiciary can abrogate our actions to comport with the evolving standards of decency", or alternatively, that every single state legislature just completely misunderstood what the ninth amendment would do? This seems a little hard to believe. I've not seen ANY evidence that even the most devout anti-federalist raised such an objection against the ninth amendment, which is pretty good evidence that the original understanding of the ninth amendment was pretty similar to what I've outlined above. See generally, Thomas McAffee, The Original Meaning of the Ninth Amendment, 90 Colum. L. Rev. 1215.
9.12.2005 10:45am
BigBob:
Ah, yes, Thomas McAffee. His work has been thoroughly rebutted by other scholars, like Randy Barnett, John Yoo and Akihil Amar.

Don't have time to go into this anymore, sorry, but yes, I understand your arguments now. My only response, for now, is to note that even if the 9th Amend. once meaned what you say, subsequent constitutional amendments have completely transformed the constiuttion's concept of "rights." The 9th amendment -- whose plain text tells us to look elsewhere in the constitution to know what it's talking about -- has thus likewise been transformed.

Plus, I'd agree with Akhil Amar that the P&I clause covers everything the 9th could cover, so in some sense the debate over the 9th amend doesn't matter.
9.12.2005 3:14pm
BigBob:
ah, yes, i'm using words like "meaned." this is not a good sign. i need a nap.
9.12.2005 3:17pm