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Senator McCain's Speech on Judicial Philosophy

Senator McCain spoke at Wake Forest University today on his judicial philosophy. The text of the speech can be found here.

From a conservative perspective, he says all the right things. I take him at his word. I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.

Senator McCain also spoke eloquently about the rule of law. He concluded his speech with this passage:

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them — the hush of serious business, the quiet presence of the majesty of the law. Quite often, you can still find it there. And in all the institutions of government there is nothing to match the sight of a court of law at its best. My commitment to you and to all the American people is to help restore the standards and spirit that give the judicial branch its place of honor in our government. Every federal court should command respect, instead of just obedience. Every federal court should be a refuge from abuses of power, and not the source. In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice.

I would be interested in seeing Senator Obama's response to the speech, including a more thorough explanation of why he was one of 22 Senators to vote against Chief Justice Roberts.

Brett Bellmore:

I can't imagine that, were he elected President, he would select someone who would rankle the folks who have worked so hard to reshape the contemporary legal culture.


Really? I can't imagine him selecting someone who'd strike down his signature cause as unconstitutional. But he's got to do one or the other.
5.6.2008 12:50pm
M (mail):
Has McCain moved against the illegal wire-tapping programs? Has he spoken out against signing statements? Has he tried to make bans on torture effective rather than window-dressing? Given that the answers to these questions are 'no', I rather doubt his great dedication to the rule of law.
5.6.2008 12:55pm
tarheel:
Who's going to disagree with anything he said in the quoted passage? That is completely unobjectionable pablum.

If that's all he has to say to get the right wing cooing for him, that says something about the strength of their convictions. To the credit of many conservatives, I don't think this is enough.
5.6.2008 1:03pm
Simon Dodd (mail) (www):
Brett's point seems right - although Presidents always insist that they have no litmus test, that's a thin veil, and it's hard to imagine that McCain wouldn't want to know a nominee's views on the question, given that most legal conservatives (it's my sense, at least) think BCRA is unconstitutional. Supposing support for BCRA is a threshold question for McCain, arguendo, who is in the pool of potential nominees?

M, what's your argument that lack of opposition to signing statements conflicts with dedication to the rule of law?
5.6.2008 1:15pm
PLR:
I would be interested in seeing Senator Obama's response to the speech....

What kind of response would you like? "I agree with Senator McCain's [speechwriter's] brilliant insights?"
In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice.

I'd be interested to hear Chief Justice Roberts explain how some of his decisions on the Court of Appeals were based "solely on the interest of justice." But that's just me.
5.6.2008 1:19pm
DiverDan (mail):
While the rule of law, and a theory of Constitutional interpretation that is firmly grounded in the text, rather that a license to go rooting around in the "emanations from the shadows of the penumbras" of the Constitution, are critically important to me, this is an election in which I'll have to hold my nose &vote for the candidate with the least stink on him or her on this issue. While I think that either Obama or Clinton would be a disaster for the future of the Supreme Court (unless the Republicans in the Senate got some guts &were willing to sink to the Dems level in "Borking" any Clinton or Obama nominee), I can't say I'm enthralled with McCain looking around for a nominally conservative jurist who is also willing to uphold McCain-Feingold despite its rather obvious First Amendment problems. I can only hope that a McCain nominee would do less dammage to the Constitution than any nominee selected by either Obama or Clinton.
5.6.2008 1:24pm
Fearless:
All I can say is this:

Read before you post.

I is one thing when grammar I mangle in a comment, but I think its lame when you make mistakes in actual posts.

You mean word, not world. Word.

Yeah, and I am sure that McCain will vote for people like Roberts and Alito who will vote to overturn McCain-Feingold.

You are really naive. To say that will use Roberts and Alito as "models" does not mean that you will nominate people who will vote like them. McCain knows he has more to gain than lose by making noises about judicial nominees pleasing to conservatives. After all, conservatives who do not otherwise care for McCain need a reason to go vote. And that reason would be judicial nominees.

There is enough wiggle room for McCain to nominate who he wants in an honorable manner, even while getting conservatives off their duff to vote through the right rhetoric.
5.6.2008 1:26pm
Richard A. (mail):
It's pretty funny that the man who says, "Sometimes the expressed will of the voters is disregarded by federal judges" then goes on to criticize the court in Kelo for approving the expressed will of the voters of New London. Connecticut.

It always cracks me up when so-called opponents of judicial activism want to employ it when it suits their views.
5.6.2008 1:31pm
Fearless:
By the way, if you are really interested in Obama's views of judges, you should read chapter three of "The Audacity of Hope." His views (which are obviously nothing like your incorrect views of the Constituion) are pretty well explained there.
5.6.2008 1:31pm
merevaudevillian:
Obama's statement on Roberts is pretty cleark.

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land.
...
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
...
The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.
5.6.2008 1:34pm
GV:
(I know this is off topic, but given the posting from several days ago, I would sure be interested to hear the professor's thoughts on these studies linked to on SL&P yesterday that discuss some of the racial disparities in our criminal justice system; specifically, in the war on drugs. How does that square with the "myth" of racism in our criminal justice system perpetrated by "The Left"?)
5.6.2008 1:38pm
Fearless:
merevaudevillian,

That quote is more on point than chapter 3 of the audacity of hope, as far as the voting against Roberts goes.

I think Barack Obama is right on target. We have to ask, what do you do when history, text, and precedent are not decisive in resolving a case? It is pretty damn clear that Roberts and Alito do not have enough moral intelligence to be deciding those sorts of cases.
5.6.2008 1:41pm
MarkField (mail):

I take him at his world.


I'm sure you do.
5.6.2008 1:46pm
DangerMouse:
We have to ask, what do you do when history, text, and precedent are not decisive in resolving a case? It is pretty damn clear that Roberts and Alito do not have enough moral intelligence to be deciding those sorts of cases.

Obama has no grounds to criticize Roberts. Let's assume that what Obama says is true, and that Roberts picks the strong over the weak, and men over women. What would Obama have Roberts do? Pick the weak over the strong, and pick women over men? Why are his value choices any better than Roberts?

Plain vanilla contractual dispute: Obama picks the woman. Roberts (assuming Obama's characterization is true) picks the man. Neither would uphold the rule of law (again, assuming Obama's chatacterization of Roberts is true), because they're just choosing who wins based on their preferences. There's nothing about the substantive law at issue.

Obama wants a justice with his thumb on the scales, to pick his own preferenced groups. How is that the rule of law at all?

Or maybe it's just another mask for abortion. After all, he did vote against protecting newborn infants with the same legal rights as other people would have.
5.6.2008 1:48pm
Fearless:

Plain vanilla contractual dispute


Do you have a brain? Plain vanilla contract disputes are not among the 5% of cases to which Obama is referring. Nice try though.


Obama wants a justice with his thumb on the scales, to pick his own preferenced groups. How is that the rule of law at all?


You right! We should definitely jump to this conclusion based on your discussion of plain vanilla contract cases. Let's just totally ignore the fact that those cases are totally irrelevant!

Yeah, and conservatives say the fact that academia is dominated by liberals helps them hone their argument. If you are representative, that is clearly not the case.

Is this what passes as argument in conservative circles?
5.6.2008 1:55pm
Opher Banarie (mail) (www):
Since I'm not a law prof or law student, maybe this point is moot (or lame?): Why not an interest in seeking the truth? Time after time criminal cases are reported where the purpose appears to be to confuse the jury with wild-eyed specuation about what might have happened. Then after a verdict we learn that the attornies knew that X or Y had happened and how, but were more interested in getting a 'winning verdict' rather than the truth. Justice may be blind, but must she be stupid and cynical as well?
5.6.2008 1:56pm
GSM:
Fearless:

Your 12:26 p.m. comment was so poorly written that it was nearly unreadable ---yet you criticize Paul Cassell's post?

"I is one thing when grammar I mangle in a comment..." I think that was your attempt at not holding yourself to the same standards you seem to hold others to, but it's tough to tell given your half-assedness. "To say that will use..." Huh?

Beyond the unreadable sentences, your central point is really unclear. So why don't you lay off the attacks ("lame" "naive") and try some substance?
5.6.2008 1:56pm
DangerMouse:
Is this what passes as argument in conservative circles?

Fine, then use your rapier wit ant tell me WHAT SORT OF CASSES he is talking about. In the thousands of Supreme Court cases which are at issue, pick one of the 5% that Obama is referring to. I don't think he's referring to some special set of cases at all, I think he's lying and actually does want a justice with his thumb on the scale.

What kind of case has no history, text, and precedent to guide it?
5.6.2008 1:59pm
Fearless:
Survey for Liberals:

Do you believe that vanilla contract disputes should be decided on the basis of race or gender where these attributes are irrelevant to the substance of the contract?

Before anyone answers, let me tally what the responses to the survey will be. (Yes, I can see into the future.)

Race and gender should be decisive, even when irrelevant.
0%
Race and gender should only be a factor, when relevant to the particular contractual relationship (i.e. discrimination in employment).
100%

Any more strawmen?
5.6.2008 2:00pm
PaulTX (mail) (www):

I take him at his world.


Yes, I take him at his world, too. And in his world, conservatives get jacked up.
5.6.2008 2:02pm
DangerMouse:
Fearless, pick a case, any case, from history, where there's no history, text, or precedent to guide a judge, which would then make his preference in choosing a woman over a man the important thing.

I don't want to set up a strawman, so go ahead and pick any case at all from history.
5.6.2008 2:02pm
Fearless:

Fine, then use your rapier wit ant tell me WHAT SORT OF CASSES he is talking about.


Read the Audacity of Hope, chapter 3 for Obama's views on the Constitution. Even better, read the whole book.
5.6.2008 2:04pm
Fearless:

Your 12:26 p.m. comment was so poorly written that it was nearly unreadable ---yet you criticize Paul Cassell's post?


That was intentional.
5.6.2008 2:06pm
DangerMouse:
Read the Audacity of Hope, chapter 3 for Obama's views on the Constitution. Even better, read the whole book.

Oh for Pete's sake. Not this classic dodge. Look, you obviously agree with Obama here. So tell me what case YOU'D think would be an example where there's no history, text or precedent to guide a judge, and that his personal preference in picking a woman over a man is the important thing. You can pick a case, or create any set of facts here.

Convince me that this approach is the right way to choose a justice.
5.6.2008 2:06pm
DangerMouse:
I'm trying to imagine how the opinion of the court would read:

Justice Picked by Obama: "This Court has no histoy, text, or precedent to guide it. But because I like women over man, the woman wins. Case closed."

Dissenting Justice picked by McCain: "This Court has no history, text, or precedent to guide it. The decision is not proper for a court to make. Case dismissed."
5.6.2008 2:12pm
Fearless:

Fearless, pick a case, any case, from history, where there's no history, text, or precedent to guide a judge, which would then make his preference in choosing a woman over a man the important thing.

I don't want to set up a strawman, so go ahead and pick any case at all from history.


You say you don't want to set up a strawman. But, you do it again (not once, but twice) in the very same post in which you claim you do not want to set up a strawman.

You want a case where there is no history, text, or precedent to guide decision? Good luck with that.

The issue (when it occurs -- remember, this is not the majority of cases) is typically not whether relevant history, text, or precedent exists. The issue is whether these things are decisive. This is not uncommon.

Second, no one is saying that one should decide for the woman over the man. Rather, what is being asserted is the perspective of women should be taken into consideration when decisions are made that affect them and history, text, and precedent are not decisive. It should be pointed out that the perspective of men should likewise be considered. (It is usually taken for granted that this perspective will be considered, as those making decisions have typically been men.)

It is not, as you characterize it in a strawman like manner, about deciding for a woman over a man for no other reason than gender.

Maybe these strawmen of yours are unintentional. Fine. I suggest you educate yourself about the views of those you criticize in the future before spouting off. Did I mention Chapter 3 of the Audacity of Hope yet?
5.6.2008 2:16pm
GSM:
Enough with Chapter 3 of the Audacity of Hope.

Why don't you provide us with some quotes from the book so we can actually engage Obama's views.
5.6.2008 2:22pm
byomtov (mail):
Has McCain moved against the illegal wire-tapping programs? Has he spoken out against signing statements? Has he tried to make bans on torture effective rather than window-dressing? Given that the answers to these questions are 'no', I rather doubt his great dedication to the rule of law.

Exactly.

McCain has had plenty of opportunity to speak out for the rule of law when it meant doing or saying something about a variety of issues. He's toed the line for Bush instead.

Spare me the praise for this boilerplate conservative rhetoric.

"Eloquent." Are you kidding?
5.6.2008 2:23pm
merevaudevillian:
If I recall, McCain has pledged never to use signing statements; Obama has said he would use them, but less frequently and of different quality than Bush.
5.6.2008 2:28pm
PersonFromPorlock:
Getting back to McCain (if I may go a bit On Topic), there isn't a politician in the country who doesn't stand foursquare for the law. Especially the one that tells him he can ignore all the others.
5.6.2008 2:32pm
DangerMouse:
The issue (when it occurs -- remember, this is not the majority of cases) is typically not whether relevant history, text, or precedent exists. The issue is whether these things are decisive. This is not uncommon.

Since this isn't so uncommon, perhaps you can provide an example. I think we're basically on the same page here when I say there is "no" history, text or precedent, and you say that these things aren't "decisive." I meant "no" in the sense that none of them are a guide, they're all "no" good. That's what I meant, and that's what I think you're meaning too.

Rather, what is being asserted is the perspective of women should be taken into consideration when decisions are made that affect them and history, text, and precedent are not decisive. It should be pointed out that the perspective of men should likewise be considered. (It is usually taken for granted that this perspective will be considered, as those making decisions have typically been men.)

But women have no single perspective, nor do men. Women disagree among themselves over things like abortion, affirmative action, etc. They are human and capable of independent thought. What kind of justice would think that women have a single perspective? That's the kind of person I WOULDN'T want on the bench.

Let's assume for a minute, however, that woman and men do have single perspectives on issues. What value would that provide to the justice? Their perspectives would be considered, but how could the judge possibly use that to determine which is the factor that decides the case? Their perspectives are equally valid, aren't they?
5.6.2008 2:32pm
GSM:
So where exactly do the candidates stand on judicial nominees. Apparently one has to buy Obama's book and read Chapter 3 because you won't find anything about judges on his webpage. His 64 page "Blueprint for Change" doesn't mention judges or judicial nominees...at all.

McCain's website at least provides us some insight (or "boilerplae rhetoric" depending on where you stand).

Again, a prime example of Obama's murky "change you can believe in" we just won't tell you what that change is.
5.6.2008 2:34pm
Terrivus:
Fearless:

I take no position on your substantive views -- for or against. But your writing is execrable. Please learn to write better.
5.6.2008 2:39pm
GSC:
The reason Obama voted against Roberts was that it was a political calculation. According to some sources, he wanted to vote for him but his political advisors (Axelrod, I think) told him to vote no otherwise he would be hurt in a Democratic primary if he decided to run for President. (I believe this was in the NY Times piece on Obama's senate record, but I could have read it elsewhere.) He knew that Roberts would be confirmed easily, and he did the politically expedient thing with his vote. He also stresses that he has defended his colleagues who voted for Roberts. (For the record, I support Obama and would also have voted to confirm Roberts, but no one asked me.)
5.6.2008 2:40pm
Kathi Smith (mail):
I have no problem with activist judges. We have an activist president who's worked out just fine, don't we?
5.6.2008 2:41pm
Joe Kowalski (mail):
The irony of Obama's vote against Roberts is that if Obama ends up getting elected, the person who will swear him in will be the same person he strategically voted against....Roberts.
5.6.2008 2:52pm
Kathi Smith (mail):
Irony? No, it's pure American. Wasn't Prez Clinton sworn in by Rehnquist? Maybe it's poetic justice--these right wing nuts have to grit their teeth and swear in a Democratic prez.
5.6.2008 2:55pm
SteveW:
McCain said, "One Justice of the Court remarked in a recent opinion that he was basing a conclusion on 'my own experience, even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him."

I think McCain was referring to Justice Stevens' concurring opinion in Baze v. Rees (the lethal injection case). Scalia also criticized Stevens for that.
5.6.2008 3:00pm
SIG357:
Fearless

"We have to ask, what do you do when history, text, and precedent are not decisive in resolving a case?"


It's hard to believe that this is a serious question. If there is no history, text, or precedent which can be brought to bear on a case, the Court is supposed to acknowledge that the case is one of those many instances which are beyond it's own purview, and kick the matter back to the other branches of government. It's not supposed to make up new law based on it's own conceptions of what is "fair" and "moral".


Please, tell me that you're not a lawyer. It would be too depressing for words to think that somebody could make it through law school believing as you do.
5.6.2008 3:02pm
Vovan:

It's hard to believe that this is a serious question. If there is no history, text, or precedent which can be brought to bear on a case, the Court is supposed to acknowledge that the case is one of those many instances which are beyond it's own purview, and kick the matter back to the other branches of government. It's not supposed to make up new law based on it's own conceptions of what is "fair" and "moral".



SIG, so court should not have decided whether prohibition interracial marriage is constitutional?
5.6.2008 3:16pm
J'hn'1:
McCain CANNOT get strict constructionist judges.
He, with the other Republicans that were part of the Group of 14, already conceded that to the Democrats in the Senate.
Unless he admits to betraying the Constitution just to stab Bush 43 in the back, he will have to live, as President, with the precedent he stuffed down our throats.
To wit, that the Democrats of the US Senate, unlike the Republicans of the Senate, are permitted to vet candidates based upon political views and deny them a vote based upon that criteria alone.
He supported it then.
He would have to live with it as President.
He would not be able to get non-liberal non-activist judges into the Federal Judiciary.
5.6.2008 3:20pm
JosephSlater (mail):
While I tend to think this is pretty much meaningless pablum, I was curious about this part of the quote:

There was a day when all could enter the federal courthouses of our country feeling something distinctive about them — the hush of serious business, the quiet presence of the majesty of the law.

So, when was that day? Conservatives have been complaining about the federal courts being too liberal for at least half a century, and some of the commenters and posters here would put the Downfall in the 1930s. I doubt McCain was pining for, say, the 1960s or 1970s. So, were those great old days in the 1950s? 1940s? 1930s? 1920s? If so, why? In what way were the courts then more hushed, quiet (interesting that he used both those terms -- are courts too noisy for him now?) or serious? And in what way was the law of that era more majestic?
5.6.2008 3:28pm
Just an Observer:
Unfortunately, the most difficult issues we have faced lately pertaining to "the rule of law" have little to do with judicical selection, but everything to do with the president's own duty to "take care that the laws be faithfully executed" McCain is the heir of a rogue administration that has assumed extra-constitutional powers and then sought at all costs to avoid judicial review of those acts.

Ironically, the real legal conservatives who were nominated and confirmed during this adminstration would almost certainly strike down the radical constitutional theories of Cheney, Yoo, Addington and company if those theories were ever presented squarely before them in a test case. But the administration has deliberately kept those theories from being tested in the courts.

Throughout this process, McCain has certainly not stood for "the rule of law." More often, he toed the party line. I watched in vain, for example, to see if this vaunted "maverick" would decry the blatant violations of FISA and demand accountability.

To be sure, on the particular issue of torture, McCain has staked out a political position opposed to that of the incumbent. (Thank goodness he is not Rudy Giuliani or another imitator from the original GOP field.) But McCain's objections to torture seem more rooted in his military values than in the law.

And McCain has a record in favor of retroactive amnesty to actors who, even in his own apparent judgment, have broken the law.

So if McCain want to speak about "the rule of law," to me he will have to articulate a clear break with the Bush administration's legal legacy. Theoretically he has some time left to do so. But at the moment, he is still pandering in the other direction. I have no serious expectation that he will do anything to offend the constituency that put Cheney, Addington and Yoo into office.

Parroting the usual cliches about appointing conservative judges does not impress me.
5.6.2008 3:37pm
frankcross (mail):
Well, women are protected, albeit at an intermediate standard, under the equal protection clause. There's not much support for that other than notions of fairness in reading a vague text. So if you want to be outraged, Dangermouse, be outraged by women being protected under the equal protection clause. Though even the most conservative justices show no interest in reversing that.

Or perhaps Brown vs. Board of Education, pretty much decided on fairness grounds. Or how about applying the equal protection clause to the federal government? Basically justified on fairness grounds, not history or text. But these are universally accepted by all justices, including Scalia and Roberts, etc.
5.6.2008 3:52pm
DangerMouse:
Or perhaps Brown vs. Board of Education, pretty much decided on fairness grounds. Or how about applying the equal protection clause to the federal government? Basically justified on fairness grounds, not history or text.

So you don't think it's a problem that justices decide things for us based on their own preferences, instead of whether there is any history or text to back up their decision?

If a major decision is to be made, for example regarding separate and equal services, or preferences, or equal protection, don't you think it serves democracy and society good to have a convincing decision that rests on something stronger than vague notions of fairness? What do you think will happen when generations of people read these cases and see the absolute idiocy of deciding that the 5th amendment really has an equal protection component that is obviously not there? I think it will serve as an example allowing them to push the boundaries even further. "Fairness" then becomes any preference you can convince a majority of. Taking property without compensation, for example, despite clear textual prohibitions. Or banning political speech, or engaging in any number of constitutionally prohibited things because of notions of "fairness."

Am I to seriously believe that this sort of attitude applies only to 5% of cases that are really hard? Family law in this country is notoriously biased towards women, often because judges don't give fathers a fair hearing. This kind of "women win and men lose" attitude isn't something that's limited to 5% of Supreme court cases. How many people have lost when they should've won because of some elitist judge's "fairness"?
5.6.2008 4:18pm
SIG357:
So you don't think it's a problem that justices decide things for us based on their own preferences, instead of whether there is any history or text to back up their decision?


That looks like one of them there 'rhetorical questions'. We all know the answer, don't we?
5.6.2008 4:23pm
Simon Dodd (mail) (www):
Frank, I think Scalia would probably accept Bolling based on stare decisis rather than conviction that it was correctly decided as an original matter.
5.6.2008 4:24pm
Ed Weston:
I'm personally confident that Obama's explanation was just another fabrication. The 5% of difficult cases are not really his concern. He's concerned about cases that actually fall in the 95% category, but in which he does not like the answer that's supported by legal precedent and rules of construction. That has been the pattern of leftist demagoguery for many years - to accuse the courts of "turning back the clock" whenever they follow established law instead of making new law. That was their ridiculous response to the 1989 Title VII cases, and it's been repeated at least a dozen time since. I don't believe for a minute that Obama has any different approach.
5.6.2008 4:27pm
DangerMouse:
He's concerned about cases that actually fall in the 95% category, but in which he does not like the answer that's supported by legal precedent and rules of construction. That has been the pattern of leftist demagoguery for many years - to accuse the courts of "turning back the clock" whenever they follow established law instead of making new law. That was their ridiculous response to the 1989 Title VII cases, and it's been repeated at least a dozen time since. I don't believe for a minute that Obama has any different approach.

Bingo. The left has wanted their thumbs on the scales of justice for years now. Women over men, minorities over majorities, criminals over police, etc., etc. Their entire philosophy is that government should help the oppressed. "Justice is blind" does not fit into that philosophy at all.
5.6.2008 4:32pm
Prosecutorial Indiscretion:
I have no problem with activist judges. We have an activist president who's worked out just fine, don't we?

That attempt at analogy ignores some fairly important fundamental differences between the function of a judge and the function of a president.
5.6.2008 4:38pm
SIG357:
SIG, so court should not have decided whether prohibition interracial marriage is constitutional?


Is that meant as a serious question? No, the court has no authority to do any such thing. The Constitution is conspicuously silent on the question of whether states can pass such laws.




"Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967."



Yes. And his retort, "the idea that we can't consider inviduous gender distinctions (for example) an equal protection problem because they weren't considered problematic in 1865 is unpersuasive in the extreme", is itself a very unpersuasive effort to bypass the law via some hand-waving. The governments powers ARE unambiguously limited by the Constitution.

The fact that something is not "fair" does not mean it is unconstitutional. It is not the role of the Constitution to ensure that fairness is maximised in America. In fact the word "fair" and the concept itself is notably missing in the Constitution.

Judges are there to apply the law as written, not to impose what they see as fairness based on their own moral compass.

Would you be as casual about a street cop who dispenses his own justice as he sees it? What about the average citizen? If they can't do it, why can a member of the Supreme Court?
5.6.2008 4:42pm
Oren:
No, the court has no authority to do any such thing. The Constitution is conspicuously silent on the question of whether states can pass such laws.
It's nice to see that you can write the guarantee of equal protection entirely out of the Constitution. I wonder what you'll excise next . . .
5.6.2008 4:45pm
Tom952 (mail):
I think Barack Obama is right on target. We have to ask, what do you do when history, text, and precedent are not decisive in resolving a case?

Well, you could always let the democratically elected congress pass a law to solve the problem.
5.6.2008 4:47pm
Mark Field (mail):

The irony of Obama's vote against Roberts is that if Obama ends up getting elected, the person who will swear him in will be the same person he strategically voted against....Roberts.


I think irony was when Roger Taney swore in Abraham Lincoln.
5.6.2008 4:47pm
Oren:
If a major decision is to be made, for example regarding separate and equal services, or preferences, or equal protection, don't you think it serves democracy and society good to have a convincing decision that rests on something stronger than vague notions of fairness?
I don't see Brown, Loving and Bolling as resting on 'vague notions' of fairness - they rest on the 14A's guarantee of equal protection. If you can convince yourself that a state can pass such laws consistent with the 14A, then I have a bridge to sell you.
5.6.2008 4:53pm
Oren:
I think irony was when Roger Taney swore in Abraham Lincoln.
But wasn't that before Lincoln just up and ignored him in Ex Parte Merryman? In the instant case, the Chief Justice will be swearing in the POTUS after being snubbed.
5.6.2008 4:54pm
Oren:
Well, you could always let the democratically elected congress pass a law to solve the problem.
Except of course where the Constitutional provision at hand is specifically written to curtail the power of the legislature. For example (uncontroversial, I hope), nobody seriously believes that Congress should have the power to determine the extent to which campaign finance reform complies with the first amendment. That's fundamentally illogical, since the first amendment is expressly written to limit Congress's power.
5.6.2008 4:57pm
SIG357:
It's nice to see that you can write the guarantee of equal protection entirely out of the Constitution. I wonder what you'll excise next .

Get back to me when the states legally ratify the 14th Amendment.

That aside, it's remarkable that the 14th meant something completely different starting in the 1950's than it did for the preceding ninety years. It's almost as if the law means whatever the people on the bench say it means at any instant. Which is exactly what Obama believes.
5.6.2008 4:59pm
SIG357:
Except of course where the Constitutional provision at hand is specifically written to curtail the power of the legislature.


That was in answer to the question, "what do you do when history, text, and precedent are not decisive in resolving a case?" That seems to pointedly exclude things like CFR.
5.6.2008 5:01pm
Justin Levine:
Mr. Cassell -

A quick question. Did you also take President Bush at his word when he insisted that he would nominate judges "in the mold of Scalia and Thomas"? If so, what was your reaction to the Harriet Miers debacle that was only overcome by a full scale revolt by nearly the entire party?

What is it about McCain's record that you feel gives him more credibility on this issue than Bush had pre-Miers?

You are being more than a bit naive here...
5.6.2008 5:04pm
DangerMouse:
I don't see Brown, Loving and Bolling as resting on 'vague notions' of fairness - they rest on the 14A's guarantee of equal protection.

Fine. Then perhaps you can divine for me whether the equal protection clause requires states to recognize so-called gay "marriage", despite not being recognized for the last 200-odd years. Does equal protection require the government to discriminate to make up for past discrimination? Anything else that's clear as crystal based on "equal protection"? Are states allowed to have bathrooms for men and women also, or do they have to be gender-neutral like most universities are moving towards?

Is it unconstitutional for a state to pick an arbitrary number like 21 to make the drinking age? Does it violate equal protection to permit parents to have rights over their children, but not grandparents over their grandchildren? Does it violate equal protection for a sperm donor to be forced to pay child support when he has never seen his child but the live-in boyfriend doesn't pay squat? Or the other way around?

Modern liberal justices read "equal protection" to say "fairness," but it is not the same thing. Equal protection doesn't require us to do many of the things liberal judes would view as "fair."
5.6.2008 5:10pm
JosephSlater (mail):
Ed and Dangermouse:

Getting past your general denunciations of the left, isn't the specific case of the reaction to the 1989 (and other) interpretations of Title VII a rather poor example for the position that "the left" wants judicial activism?

After all, the response to Wards Cove and related cases was to get a clear bi-partisan majority in Congress to amend Title VII (and that radical leftist George H.W. Bush signed the 1991 Amendments). That's what critics of court interpretations of legislation are SUPPOSED to do -- try and amend the law through democratic processes -- right?
5.6.2008 5:13pm
dcuser (mail):
Just what golden age does McCain think he is talking about? Was it before the Warren Court -- meaning that he is harkening back to the old days when blatantly racist judges denied black Americans equal justice (and sometimes even defied directly binding precedent, in their own form of massive resistance)? It seems to me that the decisions he doesn't like from the 60s came along with a whole heck of a lot of changes that he can't criticize. That means there were no good old days -- his speech is built on a myth that simply ignores all the problems occuring at the time he now eulogizes.
5.6.2008 5:22pm
JosephSlater (mail):
dcuser:

You make more directly I point I tried to make above. Conservatives often extol the good old days, back when people had better virtues and character, society was more wholesome, etc. But when you try to pin them down on when exactly that was, they often get pretty vague, in part for reason you mention.
5.6.2008 5:26pm
Mark Field (mail):

But wasn't that before Lincoln just up and ignored him in Ex Parte Merryman? In the instant case, the Chief Justice will be swearing in the POTUS after being snubbed.


Yes, the swearing-in came before Merryman. But it came after Lincoln had said that Dred Scott wasn't entitled to precedential value and had accused Taney of attempting to nationalize slavery in a quasi-conspiracy with Douglas, Pierce, and Buchanan.
5.6.2008 5:28pm
DangerMouse:
Getting past your general denunciations of the left, isn't the specific case of the reaction to the 1989 (and other) interpretations of Title VII a rather poor example for the position that "the left" wants judicial activism?
... That's what critics of court interpretations of legislation are SUPPOSED to do -- try and amend the law through democratic processes -- right?


Who limited this discussion to legislation? We're talking about judges with their thumb on the scale making constitutional decisions also. Obama mentions affirmative action, abortion, and the commerce clause. He wants his thumb on the scale on all of those things. They want judges to decide these issues as constitutional cases precisely to take them out of the hands of voters forever, so that their leftist values will forever be entrenched.
5.6.2008 5:29pm
Oren:
Sig, the 14A is part of the Constitution, full stop. If you want to go gallivanting in some alternative history in which it is not part of the Constitution, then you'll have to excuse me if I don't take you terribly seriously.

That aside, it's remarkable that the 14th meant something completely different starting in the 1950's than it did for the preceding ninety years.
No, it meant the exact same thing for all those years. Plessey was just plain wrongly decided. It requires no great feat of imagination to conclude that continued support for Jim Crow in the South and a lack of desire on the part of Northerners to enforce the 14A could lead this country to complete misapprehension of what it means.

Then perhaps you can divine for me whether the equal protection clause requires states to recognize so-called gay "marriage", despite not being recognized for the last 200-odd years.
I think Civil Union would satisfy equal protection.
Does equal protection require the government to discriminate to make up for past discrimination?
No.
Anything else that's clear as crystal based on "equal protection"?
I think Loving v. Virginia was crystal clear.
Are states allowed to have bathrooms for men and women also, or do they have to be gender-neutral like most universities are moving towards?
Passes scrutiny fairly easily.

Is it unconstitutional for a state to pick an arbitrary number like 21 to make the drinking age?
Power to regulate liquor is expressly reserved to the states by the 21st amendment, which takes precedence over the 14th.
Does it violate equal protection to permit parents to have rights over their children, but not grandparents over their grandchildren?
Parental guardianship is considered a fundamental unenumerated right (and about as convincing an unenumerated right as can be) and "essential for the function of ordered liberty" entirely separately from the concept of equal protection (i.e. it's totally irrelevant in this context) See, e.g. Pierce v. Society of Sisters and so
forth.
Does it violate equal protection for a sperm donor to be forced to pay child support when he has never seen his child but the live-in boyfriend doesn't pay squat? Or the other way around?
I don't know how these cases could possibly be relevant.

Modern liberal justices read "equal protection" to say "fairness," but it is not the same thing. Equal protection doesn't require us to do many of the things liberal judes would view as "fair."
And Conservative Justices read "equal protection" and "due process" to mean nothing at all (another inkblot, probably).
5.6.2008 5:33pm
Charlie Tips:
Can you say, "Hello, Justice Graham"?
5.6.2008 5:34pm
DangerMouse:
I think Civil Union would satisfy equal protection.

Now there's a winning argument. Your preferences are law, apparently.

Passes scrutiny fairly easily.

Excuse me, but my copy of the constitution doesn't have the word "scrutiny" in it. Can you point me to that? Thanks.

Parental guardianship is considered a fundamental unenumerated right (and about as convincing an unenumerated right as can be) and "essential for the function of ordered liberty" entirely separately from the concept of equal protection (i.e. it's totally irrelevant in this context) See, e.g. Pierce v. Society of Sisters and so forth.

That hardly answers the question of whether grandparents have some kind of parental right over their grandchildren, though. Can't you tell the answer for me? Don't bother doing research. The answer, if you're a liberal, is what's "fair."

And Conservative Justices read "equal protection" and "due process" to mean nothing at all (another inkblot, probably).

Do you know what a "process" is? Do you know what "protection" is? I don't think those words mean what you think they mean.
5.6.2008 5:42pm
JosephSlater (mail):
Dangermouse:

My point was that your example of the 1991 amendments doesn't show that anybody wanted any judges to have their thumbs on the scale. The Court that decided Wards Cove was out of step with what a majority in Congress thought Title VII meant, so Congress and Bush, Sr. amended it. What is the big moral of that story to you? Again, isn't that how things are supposed to work?
5.6.2008 5:42pm
SIG357:
Sig, the 14A is part of the Constitution, full stop. If you want to go gallivanting in some alternative history

Given that you are a law profesor, I suspect that you don't need me to explain to you the process by which the 14th was "ratified". It's part of the Constitition, but it did not become so by any Constititional process.


then you'll have to excuse me if I don't take you terribly seriously.

If you like, I'll be happy to describe in detail the mechanism by which it WAS passed, and you can explain why you don't take history or the Constitution seriously.



Plessey was just plain wrongly decided. It requires no great feat of imagination to conclude that continued support for Jim Crow in the South and a lack of desire on the part of Northerners to enforce the 14A could lead this country to complete misapprehension of what it means.

But we moderns have a clearer view of things, eh? I can see Blackmun nodding in agreement. Heck, he did nod in agreement.
5.6.2008 5:43pm
SIG357:
Sorry, I mistook Oren for Orin Kerr. They are different people I take it?
5.6.2008 5:47pm
Philistine (mail):
@SIG357

Are you seriously contending that the Supreme Court should (must as a legal matter) decide that the 14th Amendment (and presumably the 13th and 15th as well) were incorrectly ratified and thus not a part of the Constitution?

Or are you just grousing?
5.6.2008 5:57pm
DangerMouse:
My point was that your example of the 1991 amendments doesn't show that anybody wanted any judges to have their thumbs on the scale. The Court that decided Wards Cove was out of step with what a majority in Congress thought Title VII meant, so Congress and Bush, Sr. amended it. What is the big moral of that story to you? Again, isn't that how things are supposed to work?

The 1989 Title VII cases were used as an example by Ed Weston to show that liberals do want their preferences to influence plain vanilla disputes, and not just the hard 5% of cases that Obama claims preferences would apply to.

Besides, it's not that "Congress" wants "judges" with their thumbs on the scale. LIBERALS want LIBERAL judges to put their LIBERAL thumbs on the scale to enforce LIBERALISM. Their entire philosophy is that government should help the oppressed, and justice cannot be blind in order to accomplish that.

Conservatives believe that justice should be blind.
5.6.2008 6:01pm
SIG357:
Philistine

I presume that you are aware of the legal process for ratifying an amendment to the US Constitutuion.

I presume that you are also aware, or capable of finding out very quickly, that the 14th amendment was not ratified in accordance with this process. (Something of an understatement.)

So let me ask you - on what basis do YOU think the 14th Amendment was legally ratified? Or do you acknowledge that it was not, and simply not care?



Are you seriously contending that the Supreme Court should (must as a legal matter) decide that the 14th Amendment (and presumably the 13th and 15th as well) were incorrectly ratified and thus not a part of the Constitution?

Is that supposed to be a serious question? On what legal basis could it uphold them?

I look forward to your response.
5.6.2008 6:07pm
JosephSlater (mail):
Dangermouse:

Again, the 1991 CRA amendments don't prove what you are trying to say they prove. Again, a majority of folks in Congress acted in a bipartisan way to amend a statute after concluding that the Court was misinterpreting said statute. How does that show that "LIBERALS" want "LIBERAL" judges to put their "LIBERAL thumbs" on the scale to enforce "LIBERALISM"? And was George H.W. Bush part of this liberal conspiracy when he signed the 1991 law?

Indeed, this whole episode rather proves the opposite of what you are trying to say, unless your real point is, "whenever anybody acts politically to further the arguably more liberal side of things, it's illegitimate, even if they do so with a bi-partisan majority through proper legislative means." But that wouldn't be a very "justice is blind" attitude on your part.
5.6.2008 6:08pm
SIG357:
Again, a majority of folks in Congress acted in a bipartisan way to amend a statute after concluding that the Court was misinterpreting said statute

Isn't that the way it's supposed to work, as opposed to judges telling the legislature what the law they passed really means?
5.6.2008 6:13pm
DangerMouse:
Joseph,

First - I didn't not mention the 1991 Amendments, the 1989 case, or anything relating to those. I agreed with Ed Weston that liberals don't merely want their preferences in the 5% of hard cases, but also the normal everyday cases of the day. If you're having trouble determining who made these arguments and their distinctions, I suggest you re-read this thread. Frankly, I have no idea why you're bringing this up at all.

Liberals want women to win cases over men, minorities over nonminorities, individuals over the police, government over individuals and corporations, etc. All the liberal preferences are to be enforced by judicial fiat.

That's why liberals want the Court to enforce gay marriage, overthrow partial birth abortion laws, enforce affirmative action discrimination quotas, remove police powers, and other things. Obama himself said that it was important that a judge be siding with women over men.

Do you think that the history of liberals on the court overturning bans on partial birth abortion has any relevance here? Or that liberals on the court consistently vote to uphold government discrimination in the form of preferences? Or that liberals on the court consistently vote to disempower the police? Or that liberals consistently vote to strip individuals of their rights against the government commerce, taxing, and regulatory power? My point is that they do these things irrespective of any history, precedent, or text. Just a couple of weeks ago there was a posting on this Blog about Justice Goldberg, who flatly admitted fixing his cases to suit his preferences, working backwards from the result he wanted.

Do you think that the liberal value of government helping the "oppressed" and being "fair" has any conflict with the notion of justice being blind? If not, then why does Obama care about women vs. men, or powerful vs. minorities, or any other grouping? The law should be blind.
5.6.2008 6:20pm
JosephSlater (mail):
Dangermouse:

You're right, it was Ed Weston that brought up the 1989 cases and by implication, the 1991 amendments. You were agreeing with him, I thought, that this proved something about liberal judges wanting to put their thumbs on scales. It doesn't, we agree, right?
5.6.2008 6:23pm
Oren:
Now there's a winning argument. Your preferences are law, apparently.
No, I think Loving v. Virginia was a winning argument. To wit:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.
But I gather that all precedent contrary to yours view of how the Constitution should operate is somehow invalid.

Excuse me, but my copy of the constitution doesn't have the word "scrutiny" in it.
I hope that's a joke. How the hell do you want the first amendment (for example) to work if every restriction on speech has to be adjudicated on the same standard? That doesn't even make sense. Nobody seriously believes that content-based and content-neutral (time/place/manner) should be subject to the same standard. Formalizing a system of "strict scrutiny" is nothing more that stating clearly what is common sense.

If you like, I'll be happy to describe in detail the mechanism by which it WAS passed, and you can explain why you don't take history or the Constitution seriously.
I may not be a law prof but I do read history. Disputes about the mechanism by which the 14A passed are so entirely irrelevant to this discussion that, if you want to discuss them, you should get a conspirator to post a thread devoted just to it (and expect a few hundred comments).
5.6.2008 6:26pm
Brian K (mail):
Liberals want women to win cases over men, minorities over nonminorities, individuals over the police, government over individuals and corporations, etc. All the liberal preferences are to be enforced by judicial fiat.

we do? i'm a liberal and this is news to me. you're arguments seem to consist of little more than negative caricatures of "liberals", positive caricatures of "conservatives" and strawmen.
5.6.2008 6:27pm
JosephSlater (mail):
Dangermouse:

More substantively, you might be interested in what Judge Posner's new book says about conservative and liberal judges. There's a thread about it on Balkinization. The argument made by Posner (no liberal or leftist) is summarized there as follows:

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal Justices (some of the numbers can be found here); and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican appointed judges over the past eighty years (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republican appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed judges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%).

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.
5.6.2008 6:27pm
frankcross (mail):
In a way, I think Dangermouse and SIG are right. While the 14th Amendment can be read in a way to grant equal protection rights to women, school integration, etc., I think this is pretty clearly not the original intent. And I understand that SIG may well be right that the 14th Amendment shouldn't even be part of the Constitution, due to ratification flaws.

But there is a point that the most conservative justices on the Court, from Scalia to Roberts, reject this position. So bash them. In fact, I'm not aware of a single leading constitutional legal scholar, or politician, who agrees with the ultimate claims of this position.
5.6.2008 6:29pm
SIG357:
Article V.

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."



The only part of this NOT violated in the ratification of the 14th Amendment was "Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article". And that only because 1808 was long past.
5.6.2008 6:29pm
DangerMouse:
It doesn't, we agree, right?

I don't know enough about the 1989 cases at all to say. My understanding of the 1989 case is that the Court, with Rhenquist leading it, ruled in favor of the business over the minorities. The Congress, run by liberal democrats at the time, disliked the ruling and explicitly clarified the law to favor the stricter standard for business instead of the more lenient one that Rhenquist had written.

If that synopsis is basically correct, it CANNOT be the case that that example has anything to do with liberal judges having their thumb on the scale. Perhaps you can try to say that the example is a case of conservatives having their thumb on the scale for a conservative end, but I don't see conservatives saying that businesses should win over minorities, similar to what Obama is saying.
5.6.2008 6:30pm
Brian K (mail):
posted too soon.

individuals over the police, government over individuals

how does this even make sense? you've attributed two contradictory views to "liberals".
5.6.2008 6:31pm
Philistine (mail):

I presume that you are aware of the legal process for ratifying an amendment to the US Constitutuion.



Yes.



I presume that you are also aware, or capable of finding out very quickly, that the 14th amendment was not ratified in accordance with this process. (Something of an understatement.)



Yes.


So let me ask you - on what basis do YOU think the 14th Amendment was legally ratified? Or do you acknowledge that it was not, and simply not care?



The latter, given the passage of time. Similar to my feeling on claims relating to the ratification of the 16th and 19th.



Is that supposed to be a serious question? On what legal basis could it uphold them



Well... stare decisis for a start. Presumably, the court would now say it was non-justiciable.

Is there any indication that a single Supreme Court Justice (or Circuit Court Judge, for that matter) would invalidate the 14th Amendment?

I guess my real question is--do you think that making the argument in a filing in federal court would not subject you to Rule 11 sanctions?
5.6.2008 6:33pm
SIG357:
I'm not aware of a single leading constitutional legal scholar, or politician, who agrees with the ultimate claims of this position.


I'm not aware of too many who even want to address it. It's a can of worms most people prefer to keep closed.

However, Professor Ackerman of Yale Law School has said the things I'm saying. I think he counts as at least one leading constitutional scholar.


And the truth should never be ashamed to be spoken, however politically inconvienent it may be for some people.
5.6.2008 6:37pm
DangerMouse:
frankcross,

Don't confuse me with anyone else on this thread. I've never said that the 14th amendment wasn't ratified.

But there is a point that the most conservative justices on the Court, from Scalia to Roberts, reject this position. So bash them.

Interesting how you're more ready to organize a mob than try to convince me if I'm wrong. But in any event, it's one thing to say that Scalia won't overturn Bolling because to do so would be a hassle, it's another thing to say that the Bolling opinion is convincing. It clearly isn't. It also clearly would be hard to overturn.

Brian K: "we do? i'm a liberal and this is news to me. you're arguments seem to consist of little more than negative caricatures of "liberals", positive caricatures of "conservatives" and strawmen."

Then why does Obama want a justice who has sympathy for women winning over men? What possible relevance would a sympathy for women over men have to a system where justice is supposed to be blind?!
5.6.2008 6:43pm
Don de Drain:
"In every federal court in America, we must have confidence again that no rule applies except the rule of law, and that no interest is served except the interest of justice."

McCain's speech would have been much more meaningful if he had actively criticized the politicization of the Department of "Just Us" that has occurred during the last 7+ years. I'm sure he'll make that speech any day now......

IMO, very few politicians are actually in favor of anything other than judges who share their personal philosphy. Do you think McCain is any different? I don't. McCain's speech quoted by Paul Cassell has a "Leave it to Beaver" mentality. Those "good old days" were never that good. Justice was never blind. Instead, Justice hung out at the bar around the corner from the Courthouse. If you were a drinking buddy with those who hung out at the bar, you might have gotten some Justice. If you didn't drink, or weren't part of the right crowd, your chances of getting Justice diminished significantly. And if you were "different", i.e., your skin was the wrong color, or were from the wrong country, Justice was often nothing but an unobtainable dream. There were notable exceptions where Justice was obtained, but most cases did not go up on appeal, where Justice was a bit easier to obtain.

For all of our system's imperfections, however, I think it is better than most other judicial systems. But we definitely need to keep working to make it better. IMO, a healthy diversity of judicial perspectives is the best. I'd like to see both prosecutors and defense counsel appointed as judges, both plaintiff's counsel and defense counsel. Both "conservatives" and "liberals". God help us if all of the judges that are appointed are screened and approved by the Federalist Society, or, for that matter, by the ACLU.
5.6.2008 6:46pm
DangerMouse:
how does this even make sense? you've attributed two contradictory views to "liberals".

Sorry if I'm typing too fast. I meant that liberals think suspected criminals should prevail over police (or that police should be hampered by inventing requirements like Miranda), and also that government should prevail over individuals when it comes to things like their property rights &etc. (like in the Kelo case).
5.6.2008 6:46pm
SIG357:
The latter, given the passage of time. Similar to my feeling on claims relating to the ratification of the 16th and 19th.


So to recap, you acknowledge that the passage of these acts was flagrantly unconstitutional, but you don't care, because of the passage of time?



Is there any indication that a single Supreme Court Justice (or Circuit Court Judge, for that matter) would invalidate the 14th Amendment?


You're talking politics, I'm talking law. It's not relevent what any justice on the court would do. After all, they have built a mighty edifice on the 14th. They are hardly disinterested observers.


stare decisis for a start

Again, let me clarify. You oppose stare decisis with respect to Plessey, and I'm sure several other precedents which were overturned. But in the case of actions which you acknowledge were illegal, you feel that we should ignore this fact and apply stare decisis? On what basis then should Plessey have been overturned? It may have been wrong, but it was precedent.
5.6.2008 6:48pm
SIG357:
I've never said that the 14th amendment wasn't ratified.


Well, why the heck not? ;)
5.6.2008 6:50pm
DangerMouse:
Well, why the heck not? ;)

I'd never heard of that argument until today. I had to view the synopsis of that argument on the Wikipedia page for the 14th Amendment, because I'd never seen it anywhere.

It's an interesting historical footnote, and might make for an interesting blog post later, but ultimately for purposes of this discussion I think it's a distraction.
5.6.2008 6:52pm
Oren:
Justice is blind, not stupid. Sympathy for women should mean (and maybe I'm projecting what I hope BO meant) that historical non-fulfillment of the promise of equal protection means that current attempts

For instance, suppose that two roughly equivalent claims of unlawful discrimination (gender, race, whatever you want) are brought against two companies and the only difference is that in one there is a history of invidious discrimination whereas in the second, it appears to be a one-off sort of thing. Common sense indicates that we treat the former case with much more care.
5.6.2008 6:53pm
Oren:
Gah, the first paragraph should read:

"Justice is blind, not stupid. Sympathy for women should mean (and maybe I'm projecting what I hope BO meant) that historical non-fulfillment of the promise of equal protection means that current attempts to discriminate are much more harmful than they would be in the absence of that history."
5.6.2008 6:55pm
SIG357:
It's a distraction, for sure. Somebody picked up on a casual remark I made and it turned into a minor threadjack.

But I'm surprised it's a new argument to the type of people who frequent this blog - at the interesection of law and politics.

Anyway, enough said.
5.6.2008 6:57pm
Philistine (mail):

So to recap, you acknowledge that the passage of these acts was flagrantly unconstitutional, but you don't care, because of the passage of time?



Yes (given that it's almost 150 years, now). That and universal acceptance of the legitimacy of the Amendments. (Of course, several of the rejecting states did vote to ratify in the 20th Century, so that's another argument, I suppose).

In the same way that if there were an argument that the technical requirements for ratification of the Constitution were not complied with, I don't think revoking the Constitution would be appropriate.

Now, I think such arguments would have been fair game in some time period after the adoption of the Amendments--but 140 years later--no.
5.6.2008 6:59pm
SIG357:
Sympathy for women should mean (and maybe I'm projecting what I hope BO meant) that historical non-fulfillment of the promise of equal protection means that current attempts



It is not the role of the law to have sympathy for women, or for anyone else. You want sympathy, visit your mom. You want the laws applied, visit a court. You want the law changed, visit your Congressman.
5.6.2008 7:00pm
Oren:
I'd never heard of that argument until today. I had to view the synopsis of that argument on the Wikipedia page for the 14th Amendment, because I'd never seen it anywhere.
Me too. I'd read the history and the objections at the time to the manner but I'd never heard anyone claim that it follows that the 14A isn't part of the Constitution today.

I have a lot of respect for Ackerman in general, and especially his work on the GWoT. I can even buy his argument that the ratification of the 14A was illegitimate (although I have serious reservations best left for a thread on the matter) but I don't think that even he claims that it is at all practical (let alone better!) to start afresh now.
5.6.2008 7:00pm
Oren:
You want the laws applied, visit a court.
Yes, I want the law applied, even the parts of the 14A that you disagree with.
5.6.2008 7:01pm
Oren:
In the same way that if there were an argument that the technical requirements for ratification of the Constitution were not complied with, I don't think revoking the Constitution would be appropriate.
In fact, the ratification process for the Constitution was flagrantly illegal under the Articles of Confederation (unanimous consent from the states requires to amend). Are we supposed to start all the way from scratch again?
5.6.2008 7:02pm
Philistine (mail):

It's a distraction, for sure. Somebody picked up on a casual remark I made and it turned into a minor threadjack.


Hell, I think it's a much more interesting discussion than McCain's platitudes on picking Justices, but maybe that's just me.
5.6.2008 7:02pm
DangerMouse:
Oren,

Either we have a justice system that is blind, or we don't. Obama wants a system where justices favor women over men. It can't get more explicitly biased than that. He is all but admitting that he wants judges with their thumb on the scale.

I don't know how you can wordsmith your way out of that. Aren't judges supposed to abstain from sympathy, from their preferences, and from their biases? Now we're seeing people arguing in FAVOR of biases, preferences, etc? What's to stop someone from saying that a judge should have a preference for men? Or for anything else? Do you really want a justice system with all those kinds of biased loyalties? How can anyone make that kind of argument these days with a straight face?
5.6.2008 7:03pm
SIG357:
That and universal acceptance of the legitimacy of the Amendments.

Hmm, it's a good thing I said I'd drop this. I'm sure that among the political clerisy at any rate, the 14th enjoys an exalted status. I mean, it's the source of their power.
5.6.2008 7:03pm
Oren:
DangerMouse, I'm not in favor of any bias or preference, but I thinks it's common sense that invidious discrimination is more harmful when it happens as part of a historical trend as opposed to being an isolated incident.
5.6.2008 7:06pm
Oren:
To clarify, if there is a company the routinely discriminates against whites, I think a claim of racial discrimination against a white employee has more weight than if the company had a "clean" history. This has nothing to do with preferences for white employees but rather just plain common sense.
5.6.2008 7:08pm
SIG357:
I'd read the history and the objections at the time to the manner but I'd never heard anyone claim that it follows that the 14A isn't part of the Constitution today.

Legally speaking, which is a manner of speaking which seems foreign to you, the latter follows the former as night follows day.

If party A signs a contract with party B under duress, the mere fact that it occurred a while ago does not make the contract any more valid, and no court would uphold such a claim.

The 14th was "passed" by brute force, and is maintained in the same fashion. It's politically expedient for our centralised state to have such a law on the books, so it does. Law and justice does not enter into the matter. I'm sure I'm not telling you anything you don't already know here.
5.6.2008 7:12pm
DangerMouse:
To clarify, if there is a company the routinely discriminates against whites, I think a claim of racial discrimination against a white employee has more weight than if the company had a "clean" history. This has nothing to do with preferences for white employees but rather just plain common sense.

Trial judges can always weigh relevant facts. I don't know why that has anything to do with whether Constitutional law should permit preferences, or other things that liberals are sympathetic to and of which they want their values entrenched. Trial judges weighing relevant facts isn't what Obama is talking about (although I suspect that the logical conclusion of accepting his biases would be to corrupt the trier of facts as well). He's talking about a situation where the Court is supposed to favor women over men, and hence, overturn bans on gender preferences. He's talking about a situation where the court rejects challenges to affirmative action discrimination against whites. He wants the court to generally favor minoroties over majorities, which would entail overturning traditional marriage laws, etc.

When Obama says that a justice should be sympathetic to the claims of women over men, that to me is an unambiguous statement in favor of judicial preferences for women in the courtroom. I would never, ever, ever permit a client of mine to walk into a courtroom with a judge appointed by Obama if that client were a man and he was against a women, in any situation whatsoever, period.
5.6.2008 7:14pm
SIG357:
I think it's a much more interesting discussion than McCain's platitudes on picking Justices, but maybe that's just me.


I knew there was something about this guy that I liked. ;)

Still, way off topic, stopping now.
5.6.2008 7:15pm
Oren:
If party A signs a contract with party B under duress, the mere fact that it occurred a while ago does not make the contract any more valid, and no court would uphold such a claim.
The Constitution is not a mere contract. Enough said.
5.6.2008 7:17pm
Oren:
DangerMouse, you are certainly right about everything you said, but your interpretation of "sympathy" is begging the question: if we accept your interpretation, then I wholeheartedly condemn it. I was attempting to point out that one can interpret it consistently with the principles you've espoused.

I don't think the Constitution should favor anyone, and yet I see no problem with the notion that historical abdication of the promise of equal protection can relevant. It is in fact supremely relevant in cases where individual acts of discrimination do not meet the threshold of legal action but, when taken as a whole, add up to a substantial abridgment of civil rights.
5.6.2008 7:23pm
DangerMouse:
if we accept your interpretation, then I wholeheartedly condemn it. I was attempting to point out that one can interpret it consistently with the principles you've espoused.

Orin Kerr just posted Obama's reaction to McCain's statement in a new thread, where Obama said, and I quote: "Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves."

He wants courts to have an agenda and favor certain groups and policies over others. It's actually worse than what I thought. This is truly a nightmare waiting to happen.
5.6.2008 7:30pm
SIG357:
The Constitution is not a mere contract. Enough said.

Not enough said. What is the Constitution then? I'm prepared to argue that at the time it was ratified it was seen as a contract between the several states, and a contract with "the People", seen as a collective body which found expression in those several states.

What is the Constitution to you? Be prepared to cite historical sources in support of your view.
5.6.2008 8:11pm
Oren:
The Constitution is a document laying down the terms under which coercive force can be used legitimately. As such, it must logically pre-exist any 'mere contract' that relies on such a framework for the coercive imposition of its terms. You can't have contracts without first having a government to impose them!
5.6.2008 8:43pm
SIG357:
You can't have contracts without first having a government to impose them!


That seems about as historically ignorant as I was expecting. As you obviously don't know, there was a pre-existing government at the time of the Constitutional convention. Several governments in fact.

The actual Constitution, which placed very sharp restrictions on the power of the Federal government, gave it no authority to impose anything on anyone. Hell, there was no such thing as a central army at the time - all military power rested with the individuals states. The Feds not only lacked the authority to impose their will, they lacked the force.


And this was all part of the contract which the states agreed on in ratifying the Constitution.


If we take your position seriously then America has no contractual obligations under the United Nations or Geneva Conventions or any other treaty it has signed. After all, there is no "government" which can compel the US to comply with these documents.
5.6.2008 9:33pm
SIG357:
To make the point perfectly clear, people did not ratify the Constitution, states did. States with governments and their own military forces.
5.6.2008 9:35pm
Extraneus (mail):
Lurking on this interesting thread, I don't have anything too valuable to add (although I join with the blind justice advocates, apparantly opposed in that by Obama and his ilk), but I hadn't seen anyone mention that Mildred Loving died Friday.
5.6.2008 10:16pm
Philistine (mail):

If party A signs a contract with party B under duress, the mere fact that it occurred a while ago does not make the contract any more valid, and no court would uphold such a claim.


Sure they would. A contract entered into under duress is binding if treated as still in force once the duress has ended.

To get back to the 14th Amendment, aside from the States continuing to treat the 14th as in effect after Reconstruction ended--most of the States that opposed the 14th have now expressly ratified it.
5.6.2008 10:24pm
Oren:
(1) Treaties between countries are not 'contractual' in the sense that they do not contemplate coercive imposition of their terms. They contemplate the parties voluntarily compliance, nothing more. That's not to say we aren't morally obligated to keep our word (or withdraw from the treaties we no longer approve of) but they are in a different class than enforceable contracts.

(2) If you view the Constitution as a contract between the states, then it is clearly invalid because not all the states agreed to it before it was implemented. Clearly the actions of 9 states could not bind the other 4.
5.6.2008 11:31pm
Oren:
Sig, suppose that in 1870 some black guy was coerced into selling his farm (not that far fetched, eh?) and, time passes, and now a subdivision is built on his farm. Do his heirs have the right to reclaim it because the original sale was coerced?
5.6.2008 11:33pm