Judge Friendly's pre-Roe Draft Opinion

For anyone who has not heard about this Judge Randolph speech at the last Fed Soc Lawyers Convention this November, he spoke about a never-published 1970 opinion by Judge Friendly on the first abortion case brought in a federal court.

His analysis is hostile to both the reasoning and the outcome in Roe.

Randolph argues that there is no "harm principle" in the Constitution; legislatures can regulate behavior without a requirement that that behavior be directly harmful to others. I wonder, natural rights folks, if the 9th Amendment might mean that Randolph is wrong?

One man, one vote?

I had hesitated to breach this subject, as it is a specialty of Misha's, but as he has not rushed in...

This begins to address what Sen. Biden has called a potential "extraordinary circumstance" that should permit a filibuster. Sen. Biden is not a member of the Gang of 14 that introduced this standard and may not be a competent authority.

It is my bet that Alito will openly support Baker v Carr but be more guarded on Reynolds v Sims.

Should states be allowed to have legislative districts apportioned, for instance, by territory, if they wish? The Constitution guarantees republican government in the states, but does it really mandate one-man-one-vote? Many republican governments have thought it advisable to OVERREPRESENT rural districts (Japan), or sections of the country that are the home to minority ethnic groups (UK). Why should it be viewed as impermissible BY IMPLICATION to adopt such measures here (and, pace Misha, against the express example of the US Sentate)?

So long as the overrepresentation is of the WEAK, should this not be seen as a question of policy, rather than principle? While Faction should be feared, should not counterweight-to-concentration be another prudential tool against tyranny?

Law Students Against Alito

I was reading this story about law students gearing up for "the upcoming hearings on Supreme Court nominee Samuel Alito" It notes that many are "founding Law Students Against Alito chapters on their campuses." Now I have heard of single issue clubs before, but this is just silly. You would think that those opposed to Alito could organize directly through ACS (Constitution, not Cancer), Law Democrats, or one of the other leftist/socialist student organizations on campus. Maybe a new club allows these people to suck even more student money for their causes. Maybe I should start up a Law Students for Demeaning Hitlery Clinton. At least that club would have a shelf life of greater than 6 months.

The Onion on Activist Judges

The 9th Circus Strikes Again: Teach Seven-Year Olds About Sex

I finally found something sufficiently infuriating for me to break my semester-long silence on the Fed Society blog. I hope our dearly beloved president Misha will be happy to see this.

On November 2, the 9th Circuit ruled in Fields v. Palmdale School District (2005 WL 2861946) that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it.” (emphasis in original). This shocking revelation that parents should not be allowed to protect their seven- to ten- year old children from being exposed to sexual content at their schools came from the same court who just three short years ago informed us that the Pledge of Allegiance “impermissibly coerces a religious act.” Newdow v. U.S. Cong., 328 F.3d 466 (9th Cir. 2002).

I realize that I live under a rock during the law school semester, but I certainly did not hear the public outcry about this case that I would have expected. Hence, my need to end my hiatus from this blog.

It’s nice to know that we can always count on the 9th Circuit to straighten us out when we think that the words “under God” are not a coercive state endorsement of religion and when we expect that our elementary school children will not be required to answer a survey that asks how often they think about sex. Apparently it is acceptable for a school to inculcate children with values about sex but not for a school to begin the day with recitation of the Pledge, which, of course, is not mandatory.

Parents have a right to inform their children when and as they wish on the subject of sex; they have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.

Many people subscribe to different views about the moral import of sex, but parents should have discretion about how they address such weighty matters with their young children. Parents have a fundamental right to instill their values in their children, and when the school district has final say on when and where to perpetuate its own values, that right is undermined.

Hopefully the Supreme Court will grant cert in this case and, once again, put the 9th Circuit in its place. Meanwhile, the right of parents to raise their children in the way they see fit continues to be eroded by those who believe that the State knows best. I close with what I find to be chilling words from the NEA in 1885 (reprinted in Judith Areen, Family Law 1175 (4th ed. 1999)):

The first step of the State should be to get possession of the minds of men; get control of their ideas…. This can be accomplished by a system of uniform, well-organized and liberally supported public schools…. The power of education, rightly conducted, is almost omnipotent.

Proposed Mass. law to make animal sex less illegal

Check out this link about "An Act Relative to Archaic Crimes" that would, among other things, make sex with an animal subject to a far lower penalty. Hat tip to Redstate's RedHot. Some guy at redstate says this:

Senator Santorum was right. Who knew?! First they legalized gay marriage in
Massachusetts and now they are scaling back penalties on goat rape and other
crimes related to beastiality.

I should point out that I do not have a problem with allowing people to use their property as they wish (including aborting their own children) and that consenting adults should be allowed to engage in whatever acts they like. I just find pointing this out the liberals funny, because I do not think that there is a meaningful difference between allowing any type of sex (gay or straight) and allowing goat sex (as long as the goat owner consents). I know that some will say that the goat can not consent, but the goat cannot consent to lots of things. The goat cannot consent to being eaten, to being whipped, to being milked. I hardly see it as being that great of a leap to allow the goat owner to do other things for gratification by use of a goat. The law against animal sex wasn't about protecting the animal anyways; it was about outlawing the immoral activity. Perhaps if the law was part of a bill that regulated how animals are to be treated I would consider this issue differently, but as you can see from the above link, the law was to prevent immoral sex.

In Defense of High Gas Prices

Last week saw another sad grandstanding display by our elected politicians. Trying to respond to the public clamor over high gas prices, the Senate dragged in executives from five major oil companies to demand answers. These hearings demonstrate a disturbing trend in our polity.

The underlying premise of the entire hearings misconceives the role of corporate employees, like CEO. Simply put, the Senators are calling these executives to task for doing their jobs. Consider the following questions- What exactly should these execs have done in the face of a rise in demand for their product? Do you realize that these people have jobs appointed by the board of directors with the purpose of enhancing shareholder value? Should they have charged less than the market rate (market rate= rate that they could obtain from the market) just because it is in the interests of some Americans? In fact, if oil executives failed to raise gas prices, their board of directors should fire them on the spot, and the company’s shareholders should sue them for breach of fiduciary duty.

If the government wants to subsidize people in their consumption of gas, they should give out a tax break or hand out a voucher for gas. This would be horrible and near-socialist, but it is miles better than calling in private businessmen who are violating no law and doing their jobs, and demanding that they sacrifice the interests of their employers for the sake of the so-called “public interest.”

Stare Decisis?

Don Cates, Monday lunch, made a persuasive case that the 2nd Amendment cannot mean what current Supreme Court jurisprudence seems to say: it's about the state militias, aka Nat Guard. Rather, he insists, its meaning is what it appears on its face: "keep and bear arms" gives INDIVIDUALS the un-infringable right to own and carry a gun, everywhere in the country.

The plain meaning, the original meaning and consistent reading of this amendment congruently with other contemporaneous amendments ("rights" refers to individuals, "powers" refers to states), he claims, ALL tend toward this understanding.

Can the Supreme Court persist in applying current precedent?

Alito is a Slam Dunk to be Confirmed

Alito is obviously among the numerous candidates that fulfills the President’s pledge to nominate someone in the mold of Scalia and Thomas- the only question now is whether he will be confirmed. I think he answer to that is a slam-dunk “yes.” During the Miers nomination debacle, some (including some on this board) blamed the Republicans in the gang of 14 for the choice, saying they made the nomination of a qualified conservative impossible. I think the Alito nomination will show that I was right to defend those Republicans and that Bush miscalculated greatly if that was his reason for nominating such an unknown as Miers.

Mike DeWine was just on TV (one of the gang of 14), saying that Alito is nowhere close to extraordinary circumstances. I expect John McCain and the rest of those who worked well with Democrats to save the filibuster for truly extraordinary circumstances will issue similar statements in the next couple of days. The Democrats will see the writing on the wall for any attempt at a filibuster, not want to lose the option for truly extraordinary circumstances, and back down after a bunch of posturing. Alito will be confirmed with over 60 votes, and the filibuster deal will be established as not something to be used as a litmus test, but rather as a last ditch measure for when the process goes really wrong.

This is a very good day for the American judiciary.

Welcome to the Lions' Den, J. Alito!

This is the kind of POLITICAL argument that must have argued in favor of Alito.

Could McConnell have been passed over because of Bush v Gore?

A Great Opportunity

In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.

The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”

In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.

McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):

1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.

2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.

3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.

4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.

5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.

I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.

Judicial Nominations & Republican Politics

I would like to respond to a comment Dave Lane (glad we have intelligent liberal contributions on the blog - thanks!) made on a previous post:

"I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):
1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork). "

The Miers nomination raises reasonable doubts about the sincerity of conservatives who suggested that the presidential nominating power was sacrosanct. Many conservatives made compelling arguments that "advice and consent" could not mean that a president had the DUTY to prequalify nominees with the Senate. In the case of Miers, the President made a choice and the reaction was outrage - How dare he! In defense of the abovementioned conservatives, I would distinguish between saying that the Constitution requires senatorial participation in the selection of nominees (a novel interpretation of the Constitution opportunistically advanced recently by some Democrats) and saying that a president's choices can be criticized (a freedom fully exercised by Republican citizens in recent weeks). Republican senators did not initiate or even participate in the rebellion against Miers and their subtle telegraphing of a difficult confirmation seemed to underscore the generally accepted notion of senatorial veto power to a presidential power of choice.

"Every nominee deserves an up or down vote" refers not to public opposition, which derailed this nominee, but to (ab)use of Senate rules to prevent a vote coming to the Senate floor, notably the filibuster. The objection is not to free speech but to minority thwarting of the majority will. The Miers withdrawal was a submission to popular will.

Miers was not generally treated abusively. She was a very weak nominee, offering ample material for substantive objections, and the attacks hardly had the chance to get personal in the short time involved. Judge Bork, on the other hand, was subjected to the full fury of modern media politics.

You have a point on abortion litmus tests.

I believe the Miers nomination was, as Geoff Shipsides reported in a post before Miers' nomination, a sacrifice nomination. The abortion element was crucial to setting up the next nominee. Here's how:

It has by now been established that Miers opposes abortion (and Karl Rove made sure that we'd all find out) and it seems reasonable to assume that she would have been a vote to overturn Roe as well. The Democrats hardly raised a peep against Miers but instead held their fire as they saw Republicans seeming to do their work. BUT the Miers prologue simply strengthens the importance of QUALIFICATIONS in the public mind; opposition to abortion hardly got a chance to be brought up as a problem.

So, we are left with: 1) qualifications are the key to evaluating a nominee (another Republican talking point), and 2) opposition to abortion is not a problem.

I think the next nominee will be: Edith Jones, Emilio Garza, or Michael McConnell. And any of them will now have a much easier time getting confirmed after Miers. There will be a tough fight but the ground is well prepared for the engagement.

Fatal flaw?

One might wonder whether such a thing (a negative view of Roe, to such an extent that the decision should be overturned) should eliminate a nominee, but this indicates that Miers might have a serious problem in front of the Senate Jud Com.

Some odds-makers have turned against Miers...

Blame It On the Senate

In reading the most recent Fed Soc blogs on the nominations of Ms. Miers, I must say I'm a little surprised that two big points have been completely overlooked. First is the role of the "moderate Republicans" in the Senate. Second is the fact that the Court moves to the right regardless of the result of the Miers hearings.

Had a Luttig or Garza received this nomination, I doubt that the moderate Republican Senators would have stood solidly behind him. Their history with the fillibuster "compromise" proves very unpromising. If such a candidate had been nominated and challenged by the Demos, I doubt the Republicans would have used the nuclear option. They did not even stand for this principle in the abstract; why would they suddenly invoke it when it makes a practical difference and they would open themselves up to even more charges of partisanship? Cow-towing to Democrats on such a nomination would communicate that not even the Republican party wants to align itself with these "controversial conservatives," and could greatly set back the work that conservative groups like the Federalist Society have done in making conservative ideas part of the mainstream legal dialogue.

Because Luttig and Garza were not nominated, these same moderate Republicans are now up-in-arms. The Democrats seem to be happy enough. This is also a very good thing since the moderate Republicans are the ones that make or break the confirmation. If the Republicans do decide to reject Miers as a candidate, it puts them in a position to have to stick by their guns when Bush nominates a candidate with a more substantial conservative track record. The moderates could not avoid acknowledging the conservative branch of their party as easily the second time around if their reasons for rejecting Miers included inability to determine her jurisprudential views. It would put them in a position to have to take a stand for conservative jurisprudence by legitimizing judges with a solid conservative history. It would be much easier for a conservative judge to be confirmed if the Senate rejects Miers.

Secondly, I'm not as sure as my Fed Soc colleagues that Miers is such a horrible pick. I have to disagree that there is a certain path or a certain set of credentials that reveals a judge has a strong unassailable philosophy. Or even that a woman that doesn't have those credentials is intellectually inferior to those that do. Ultimately, the fears of Federalist Society members should not be that Miers is not intellectual; the fear should be that she does not have a consistent jurisprudential philosophy. Many Supreme Court justices that did not follow what we see today as the typical track were effective nonetheless in this important area, including Marshall, Warren, Harlan, Frankfurter, and Jackson. (http://writ.news.findlaw.com/commentary/20051005_gerber.html) Whatever criticisms can be made of these men (especially Warren and Marshall) not having a consistent judicial philosophy is not among them. The main point is that, if confirmed, I think Miers replacing O'Conner will move the court slightly "to the right." And that is a good thing.

Whatever happens next, it seems the court goes our way. Either the Senate denies her nomination and is forced to support someone with stronger conservative ties, or they confirm her, and we get a controversial candidate slightly more conservative than O'Conner. I'm not sure the Miers nomination is a great idea; I'm just not so sure it's a bad one.