A Rejoinder on Candor

David Stras

One of the really enjoyable aspects of being an academic is the opportunity to challenge and question the viewpoints of colleagues. In that spirit, I am a bit puzzled by Brian’s post where he suggests that if Judge Sotomayor’s comments are used to “derail her appointment,” candor will be the casualty, see here. As I and others have argued elsewhere, candor has long been a casualty of the judicial appointments process. Robert Bork, for example, is probably the most vivid example of a nominee whose candor was a key reason for his rejection by the Senate. I have read the transcripts of the confirmation hearings for virtually all of the modern nominees to the Supreme Court and it is pretty clear to me that Bork was more forthcoming with his answers than any nominee in recent history. To be sure, there were other political problems with Bork’s nomination, but his candor was certainly a major factor in his undoing. I think most scholars and commentators who study the judicial appointments process would agree with the statement that candor has not been considered a positive characteristic for Supreme Court nominees for quite some time. As evidence, we have unsurprisingly seen nominees since Bork that are “stealth” candidates, or essentially blank slates. Furthermore, participants in the process such as our current vice president have described confirmation hearings as a “kabuki dance” where no real information is learned about the nominee.

Though I am a subscriber to the school of thought that believes that judges, and particularly Supreme Court justices, are subject to political considerations in their decision-making, I do not begrudge Chief Justice Roberts for saying that judging is like calling “balls and strikes.” To the contrary, it is my experience that many judges and justices honestly believe that they are deciding cases impartially and putting their own political preferences to the side. Instead, my complaint with respect to Chief Justice Roberts (which was mostly out of his control) is that he continued the trend of Supreme Court nominees without much of a paper record on which to evaluate them. To President Obama’s great credit in selecting a nominee, Sonia Sotomayor, like Samuel Alito before her, has a long record on the federal courts (and in her various speeches) that we can evaluate. But my question for Brian is if we cannot evaluate nominees by their written and oral records, then what is left for the Senate to do? Perhaps Brian is simply critiquing the offensive use by interest groups of a single statement by Sotomayor and implicitly arguing that her statement is well within the mainstream of judicial and legal thought, but that has less to do with candor and more to do with the content of the statement at issue.

Posted 9:30 PM by David Stras [link]

The limits of "democratic constitutionalism" with an undemocratic Constitution

Sandy Levinson

The collection of essays that Jack and Reva have edited is, as one would expect, very good and highly worth reading. Why, though, am I less enthusiastic about the overall project, as described by Jack, than presumably typical members of the American Constitution Society (an organization that I support wholeheartedly)? The answer, as will surprise no one, is simple (and, some of you no doubt think, simplistic): Most of the issues that challenge us as a nation today have remarkably little to do with standard-form issues of "constitutional interpretation"; they are, therefore, not really amenable to litigation, including the most brilliant arguments made before our favorite justices or, for that matter, our favorite members of Congress or presidents.

It has become glaringly obvious, for example, that if one wants to understand why California has become, in the words of the Economist, "The Ungovernable State," May 16-22, 2009, p. 33, the answer has almost literally nothing to do with decisions by the California Supreme Court, including its decisions on Proposition 8. Rather, it has to do with basic structures of the California constitution, plus, of course, the character of the California party system and the sheer heterogeneity of the state. I, of course, believe the same is true at the national level. If we don't get significant medical care reform of a handle on the military budget, it will because of an indefensible Constitution that gives people like Max Baucus from Montana and Daniel Inouye from Hawaii totally unmerited power in the Senate, not to mention the other pathologies of the Constitution.

Unfortunately, self-styled "progressives" and devotees of "democratic constitutionialism," including some of my very best friends, seem unwilling to emulate the earlier generation of progressives, who challenged various parts of the Constitution and even brought about important changes (e.g., the 16-19th Amendments). Instead, we continue to believe that it our challenge is figuring out the one true way to interpret the Constitution and then hope that the "dialogue" among social movements, members of Congress, and the courts will work out for the best. I hope they're correct, but I don't share their implicit optimism about what is possible within unreformed political institutions. "Dialogue" sure as hell isn't working in California. At least in California, the situation has become sufficiently catastrophic that serious people are talking about a constitutional convention and serious change.

What will it take for even one "respectable" person--I take it that Larry Sabato and I are viewed simply as academic flakes--to suggest that we might at least initiate such a conversation before catastrophe occurs instead of waiting, in Bruce Ackerman's term, for "the next attack," whether that "attack" is standard-form terrorism, a further financial meltdown, or a drastic public health emergency (not to mention the general issue of global warming and the inundation of coastal America)?
Posted 8:04 PM by Sandy Levinson [link] (22) comments

How Justice Marshall Affected the Court’s Deliberations Just by Sitting There

Susan Bandes

Much of the discussion sparked by the Sotomayor nomination has focused on whether race, gender and ethnicity should shape an individual judge’s jurisprudence. But a separate question has received little attention—how these attributes of individual judges affect the deliberative process. As I've argued in previous posts here and here, one value of the deliberative process is that it increases the odds that individual assumptions about how the world works will be subject to challenge, or at least that no judge will assume his or her own perspective is universal.

I was glad to see Adam Liptak’s article in today's New York Times focusing on the impact of diversity on the deliberative process. Liptak cites a study by Washington lawyer Jennifer Peresie concluding that the presence of a female judge on a three-judge panel in a sex discrimination or sexual harassment case significantly increased the likelihood that the male judges would find for the plaintiff. He also cites a study by Tom Miles and Adam Cox concluding that the presence of an African-American judge on a three-judge panel in a voting rights case significantly increased the likelihood that a white judge on the panel would find for the plaintiff. As Peresie cautioned, these findings about three-judge courts can’t simply be extrapolated to a nine-judge court (particularly the Supreme Court, which has a different set of institutional constraints). But they do point to the importance of examining how heterogeneity affects the deliberative body as a whole.

The literature on the dynamics of judicial deliberation is surprisingly sparse. Much of what we’re learning about the dynamics of deliberation in the legal context comes from the study of juries. (Speculatively, this may be because the very notion that judicial interpretation is influenced by background or life experience offends the conventional wisdom that the rule of law transcends individual interpretation). But these jury studies contain some fascinating findings about how racial composition affects the deliberative process.

Liptak quotes Justice Scalia observing about Justice Marshall in conference, “Marshall could be a persuasive force just by sitting there. He wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.” A series of studies by Sam Sommers, a psychologist at Tufts (often in conjunction with Phoebe Ellsworth), help explain this dynamic. In one 2006 study (involving a mock jury) Sommers found, as expected, that heterogeneous groups deliberated longer and considered a wider range of information than did homogeneous groups. But this effect was not simply due to the contributions of the black participants. In fact, it occurred even when the black participants didn’t contribute to the discussion at all. “White participants were largely responsible for the influence of racial composition, as they raised more case facts, made fewer factual errors, and were more amenable to discussion of race-related issues when they were members of a diverse group.”

This effect seems to depend partly on the fact that the participants push themselves to formulate better arguments when they know they will have to justify them. But in addition, it reflects the fact that people generally try to correct for implicit attitudes of racial or gender bias when reminded to do so. A couple of the many questions for further study: How would the dynamics Sommers identified play out when other implicit biases are triggered—biases that people are not as motivated to avoid? How would the dynamics Cox and Miles and Peresie identified play out in cases in which race and gender played a role, but not as explicit a role? Perhaps the current national discussion will lead to more much-needed empirical work on the dynamics of judicial deliberation.

Labels: cognitive psychology, implicit bias, judicial deliberation, jury deliberation

Posted 3:27 PM by Susan Bandes [link]

The Return of Liberal Constitutionalism-- And A Note on Democratic Constitutionalism

JB

In today's New York Times Magazine, Jeffrey Rosen has an article about the new liberal constitutionalism. It features, among other things, Reva Siegel's and my new book, The Constitution in 2020. Rosen's article mentions the Constitution in 2020 conference held in April of 2005 at Yale Law School in which many important liberal constitutionalists debated the direction that constitutional theory should take. The flowering of liberal constitutionalism some four years later is due to many people working on these issues in the past decade. More work needs to be done and will be done in the future.

It is important to remember that the debate over the future of liberal constitutionalism began in the darkest days of the Bush Administration, when conservatives controlled all three branches of government and when it seemed that no one would ever pay attention to liberal views about the Constitution again. The Constitution in 2020, written against the backdrop of those times, has appeared in an era in which the Republicans and the conservative movement have been discredited by years of corruption and mismanagement. It is now up to liberals and Democrats to explain the direction they want the country to take. Stating a new constitutional vision is part of that obligation.

Earlier I mentioned that the new liberal constitutionalism has three major themes, which I called constitutional fidelity, democratic constitutionalism, and redemptive constitutionalism. In his article, Rosen focuses on the second, democratic constitutionalism. This term describes the idea that courts have neither the first nor the last word on the meaning of the Constitution, and that courts and political branches are engaged in a continuous process of mutual influence and interaction.

It is not surprising why Rosen focuses on this aspect of the new liberal constitutionalism. Rosen himself has argued for the idea that courts work best and are most legitimate when they defer to the constitutional views of the country as a whole.

Even so, focusing only on democratic constitutionalism by itself is incomplete. Constitutional interpretation must be faithful to the Constitution-- attempting to apply its text and enduring principles to new conditions-- and it must also be redemptive-- taking seriously the Constitution as an aspirational document as well as a framework of governance and attempting to realize the Constitution's values in our own time.

Moreover, Rosen's version of democratic constitutionalism understandably sees the world from the perspective of courts-- he argues that courts should follow the constitutional views of the country as a whole. This makes sense if one is worried about a judiciary that is likely to run amok and needs to be forced to behave. But a central point of democratic constitutionalism is that all branches of government and the American people are active constitutional interpreters. And whether or not judges are called active or passive in any era, they will, in the long run, conform to popular sentiments. If this is so, we should probably spend less time worrying about judicial activism or judicial restraint and more time arguing about the best interpretation of the Constitution. For in the long run, it is the views of Americans about their Constitution that matter more than the views of individual judges. Arguments about judicial activity or passivity-- which are issues of process-- are often disguised ways of arguing about what the best interpretation of the Constitution should be-- issues of substance. That is because Americans want judges to be alternatively active or passive when doing so protects the rights and interests they believe are important to protect. For this reason, it might be better to stop focusing on what judges should or should not do-- for as a group they will follow popular opinion in the long run-- and instead focus on what we as citizens understand our Constitution to mean today.

We can see this point in the current debates over Sonia Sotomayor's nomination to the U.S. Supreme Court. Sotomayor's conservative opponents are trying to attack her character, arguing that she will not judge fairly or impartially. But what is behind these attacks on character is a debate about constitutional issues that are not being directly addressed; indeed, in some cases, the attacks are deliberately obscuring them. These constitutional issues are fraught with difficulty; however, it is by no means clear that, when fully articulated, the American public now supports the Republican Party's views about the Constitution. It is more likely that the public's views are somewhere in the middle between the two parties, perhaps now a bit closer to those of the Democrats than the Republicans.

I do not think that our debates about judicial nominations will stop focusing on personal issues anytime soon. But Americans should understand that Supreme Court nominations are an important forum for Americans to debate the meaning of their Constitution, and send messages to their elected officials-- particularly the President and the Senate-- about what their Constitution means to them. Although Supreme Court nominations are about appointing judges who will interpret the Constitution, they should also be key opportunities for democratic constitutionalism.




Posted 9:50 AM by JB [link]

David Frum (American Enterprise Institute) on Judge Sonia Sotomayor: Subprime Reporting, continued.

Bernard E. Harcourt

The problem is not negligent fact-checking, it turns out. It’s deliberate misrepresentation.

Yesterday I posted on David Frum’s recent attack on Judge Sonia Sotomayor. Mr. Frum attacked Judge Sotomayor on public radio’s Marketplace for having only an “abstract and academic” experience of business law—failing to note that Judge Sotomayor was a commercial litigator for eight years in a New York corporate law firm.

I noticed only later that Mr. Frum has also pursued this line of attack on his blog at NewMajority.com. There, Mr. Frum writes that “Sonia Sotomayor reaffirms the Supreme Court’s 8 to 1 bias against lawyers with a background in business law.” Referring to the sitting Supreme Court justices, Mr. Frum adds: “all have backgrounds in academia and government. Now one more.”

“Academia and government?” What happened to the eight years of commercial litigation? True, Judge Sotomayor was also a prosecutor at the Manhattan D.A.’s office. But clearly factually wrong that Judge Sotomayor does not have a background in business law.

When I posted, I thought it was a case of negligence, of poor fact-checking. I chalked it, in part, to the financial troubles that the media are experiencing today. How naïve! It turns out that Mr. Frum intentionally misrepresented Judge Sotomayor’s background—that this is, in fact, a case of knowing misrepresentation. In response to my post, Mr. Frum acknowledged to me that he knows full well that Judge Sonia Sotomayor was an attorney at a corporate law firm and handled cases involving large corporate clients. In fact, Mr. Frum wrote to me: “As you surely know well, Sonia Sotomayor's private-sector work was very far from business counseling of the kind that I described. She worked mostly on enforcing trademarks against counterfeiters. (Fendi was a big client).”

Apparently, Mr. Frum even knows who her clients were! (And incidentally, since when is trademark infringement and intellectual property litigation not a central concern to American enterprises?) I take it then that when Mr. Frum calls Judge Sotomayor a judge “whose experience of business law is abstract and academic,” he is knowingly misstating the facts.

I urged Mr. Frum yesterday to address this in a public forum. Silence.

I must be old-fashioned, but I’m still waiting for a retraction and a correction both from the American Enterprise Institute and Marketplace. I still believe in factual accuracy in public debate—particularly on the public airwaves that reach large audiences who may not be scrutinizing everyone’s biography. It is today far too easy to swiftboat public figures. In this case, though, the problem is intentional misrepresentation regarding a public figure. That, we should never condone in our public debates.

Posted 11:42 AM by Bernard E. Harcourt [link]

Punishing Judge Sotomayor for her Candor

Brian Tamanaha

It is essential to understand what is at stake in the growing flap over Judge Sotomayor’s comments that appellate judges must occasionally make choices, and that these decisions are sometimes influenced by their backgrounds: Candor will be the casualty if her comments are used to derail her appointment.

Although a few opponents suggest that her comments are shocking or injudicious, dozens of prominent judges—including conservative judges—have said similar things going back more than a century (as elaborated in The Realism of Judges Past and Present). Here are just three examples:

Judge Thomas M. Cooley, a famous conservative in his day, wrote in 1886 that uncertainty in law is inevitable “because in the infinite variety of human transactions it becomes uncertain which of the opposing rules the respective parties contend for should be applied in a case having no exact parallel, and because it cannot possibly be known in advance what view a court…will take of questions upon which there is room for difference of opinion.” He added that “just and well-instructed [judicial] minds” can legitimately disagree in their legal interpretations, and this “must always exist so long as there is variety in human minds, human standards, and human transactions.”

Judge Irving Lehman of the highest court of New York acknowledged in 1924 that in some cases there is no clear legal answer and judges must occasionally make policy decisions. “No thoughtful judge can fail to note," he observed, "that in conferences of the court, differences of opinion are based at least to some extent upon differences of viewpoint.”

Judge Alex Kozinski, a contemporary conservative darling once touted as a Supreme Court nominee, declared: “judges do in fact have considerable discretion in certain of their decisions”; with legal principles “there is frequently some room for the exercise of personal judgment”; “precedent…frequently leaves room for judgment”; “we all view reality from our own peculiar perspective; we all have biases, interests, leanings, instincts.”

Many dozens of prominent judges, past and present, have made similar comments. Judge Sotomayor is nothing special in this regard. Indeed, the outlier is Chief Justice John “I just call balls and strikes” Roberts, who, to his discredit, stood out for his lack of candor on this issue in his confirmation hearing.

There are important questions surrounding how these choices should be made by judges (which Jack addresses below), and Judge Sotomayor should be asked about her judicial philosophy on these matters. But it is absurd to suggest that judges on the highest appellate courts do not make choices in legally uncertain cases.


Posted 10:15 AM by Brian Tamanaha [link] (105) comments

Impartiality and Empathy

JB

Michael Gerson unwittingly reveals the problem of the distinction between impartiality and empathy that Sotomayor's opponents are trying to maintain. Gerson, like Charles Krauthammer, argues that the law should be applied as it is, impartially, and not bent or altered out of a misplaced empathy for particular persons or groups.

Ironically, in defense of their position, both of them offer the case of Frank Ricci, the dyslexic firefighter who worked so hard to pass New Haven's promotion test, and lost his chance when New Haven discarded the test because it resulted in no promotions for blacks. Ricci sued under Title VII, the federal employment discrimination statute. Ricci is revealed to us as a person of character who overcame setbacks of his own, who got a raw deal from the city of New Haven, and who deserves our empathy, as well as our sympathy. Indeed he does.

But what if the law surrounding the federal employment discrimination statute, Title VII, is fairly clear, so that under an impartial application of the law, Ricci loses? That might explain why the Second Circuit panel (that included Sonia Sotomayor) that considered Ricci's case affirmed the lower court's decision without opinion. What if Judge Jose Cabranes and other judges on the Second Circuit were moved by Ricci's plight and the deep unfairness of what New Haven had done and argued for rehearing the case on the grounds that the current interpretation of the law is wrong and should be altered? And what if five members of the Supreme Court, also moved by empathy to Ricci, and the unfairness of current doctrine, do not apply the law as it currently stands, but alter it so that Ricci can prevail? Under those circumstances, who is administering justice without respect to persons, and doing equal right to the poor and to the rich? It is Sotomayor and the second circuit panel who are being impartial, for they are applying the law as it is; it is Sotomayor's critics who want to change the law out of empathy for Frank Ricci and his plight.

But, you might respond, the law of Title VII is not clear. One can make arguments on both sides. This is especially so because behind the statutory question are arguments about how the Constitution applies when the employer is the government. Perhaps the judges in the second circuit panel honestly thought that the law was clear, and affirmed, thinking they were being impartial. But if so, then they were just mistaken. And if the law is not clear, then surely we should take into account the real world consequences of the law, and interpret it so that good people like Frank Ricci are not badly treated. Simple justice requires this.

Perhaps you are right about this. But this brings us to the central point. Gerson and Krauthammer can use Ricci's case to argue for impartiality in judging because they assume that the law clearly favors Frank Ricci. But it does not. An impartial judge reading the law impartially might find against him. But if that is so, what work is the distinction between empathy and impartiality doing in their argument? Impartiality may not be on Ricci's side; empathy may be. Or perhaps-- and this is the most likely scenario-- the law that applies to the case is not entirely clear.

The most controversial cases that come before the federal courts are usually not clear, even though the lawyers on both sides often persuade themselves that the law is clear and believe that an impartial judge will have no problem finding for their side. That is not surprising. What makes a case controversial is precisely the fact that people disagree strongly about what the law is and how it should apply. The problem is what to do with these cases, where both sides fervently claim that impartiality and objectivity are on their side and claim that the other side is mistaken and wants to twist or deform the law. Arguing for impartiality is simply not going to solve the problem.

One gets the sense in Gerson and Krauthammer's arguments, though, that they are running together two different ideas of impartiality. One principle is that judges should be impartial in interpreting the law-- they should apply the law no matter what its content happens to be, regardless of who comes before them. The second idea is that the content of the law should have a certain character-- it should allow for no distinctions whatsoever based on group membership or personal characteristics. But suppose the law allows for such distinctions, for example, as current law does for certain affirmative action programs. Then the first principle of impartial application of the law whatever it may be conflicts with the second principle of neutrality with respect to groups, or, in this case, colorblindness. This problem happens all the time. Krauthammer gives the example of the progressive income tax, which taxes the rich proportionately more than the poor. If a judge was asked to apply that law impartially, he or she would not be treating rich and poor alike substantively, for the rich person would have to pay more. Rather, the judge would be impartial formally, applying the same law (which makes a distinction based on income) to rich and poor alike.

Which brings us back to the central problem: If you are impartial in the sense that we normally expect of judges, applying the law fairly as it is written without respect to persons, you might well find against Frank Ricci. Of course, as I noted before, it is far more likely that the law is actually unclear, which is why the Supreme Court is taking the case in the first place.

Faced with this possibility, one assumes Gerson and Krauthammer would say that the law is an ass if it finds against Frank Ricci. Where the laws are unclear, or there are plausible arguments on both sides, we should interpret laws to promote what is just, and not what is unjust. I have no doubt that Sonia Sotomayor would agree with these sentiments completely. But if so, this pretty significantly alters the nature of the debate. What separates her from her critics, then, is not that one side believes in impartiality and the other believes in empathy. What separates them is that they disagree about what is just and unjust.

Posted 8:35 AM by JB [link]

Tylenol kills again?

Andrew Koppelman

If you don’t read this blog post, you might die.

Legal theorists dispute the efficiency of unregulated markets. Particularly in the area of medicine, where enormous information is now available on the internet, some have suggested that regulation is less necessary than it used to be, because consumers can easily inform themselves.

The limits of the efficient-market hypothesis became clear to me when, in the past few days, I went shopping for a bottle of Tylenol or generic equivalent (acetaminophen). I quickly discovered that it is hard to find it in a store in less than toxic doses.

It’s perhaps two years since I last shopped for a bottle of the stuff. Back then, everyplace I went had both the regular strength (325 mg) and extra strength (500 mg) varieties. Somehow, in the past two years, the regular strength Tylenol has disappeared from the market. Some stores did not have it at all. A large specialty drug store had a few bottles of 325 mg, together with row after row of 500 mg.

My guess is that what’s going on is the typical American proclivity for bigger and stronger and more powerful: why mess around with regular strength when extra strength will do a better job? Extra strength Tylenol is the Hummer of pills. It steamrolls over your pain. So consumers consistently buy the extra strength, while the regular strength pills expire on the shelf and have to be thrown away. That would explain why the stores have stopped stocking them.

Unfortunately, it also places serious stress on your liver, and the stress is considerably greater with the 500 mg dose than the 325 mg dose. The danger is particularly great if you have more than two alcoholic drinks a day. So there continue to be frequent episodes of unintentional overdose, despite years of consumer-education campaigns. For this reason, an FDA report today recommended that the maximum dose be limited to two 325 mg pills. If consumers had perfect information, you’d expect there to be at least a market niche for that dosage. But most consumers have no idea what’s going on. (I’m no expert, either; I just happened to see a news report on one of the studies a couple of years ago.) In other words, the market and the experts are marching in exactly opposite directions, to such an extent that it has become difficult to purchase the medicine in a safe dose. Check your medicine cabinet. Reading this could save your life. Evidently the free market won’t.

It’s hard to imagine a more powerful case for aggressive government regulation, even in the age of the internet.



Posted 9:16 PM by Andrew Koppelman [link]

Dear reporters: please stop.

Heather K. Gerken

Recently several reporters have asked me some variation on the following questions: "what role does identity politics play on the Court, and should those who support civil-rights causes be happy about Judge Sotomayor's nomination?" (This, for what it's worth, is almost a direct quote).

For those interested, I’ve posted my snarky take on the subject on the new "Double X" blog. It begins: "There is only one sensible answer to such questions. Please stop. Honestly. It’s embarrassing even to have to say this, but let me spell it out."

Posted 1:29 PM by Heather K. Gerken [link]

Judge Sotomayor as Legal Realist

Mark Tushnet

Posted 10:01 AM by Mark Tushnet [link]

What to make of the "temperament" issue

Mary L. Dudziak

Scott Moss at Politico has a very helpful piece "The case against the case against Sonia Sotomayor." In particular, Moss provides a useful way of thinking about one expected line of challenge to Judge Sonia Sotomayor's nomination, raised by Jeffrey Rosen in his rather unfortunate "The case against Sonia Sotomayor." Both Rosen's article and evaluations by lawyers in the Almanac of the Federal Judiciary are based on anonymous sources. What should we make of them?

Here's Moss's take:

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.

Moss notes that his"small-number statistics don’t qualify as an official empirical study." Nevertheless, "anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men."

Hear, hear.

What's more, "The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason." They miss the different approach needed in managing the human drama of a trial court, and what goes on in an appellate court. Supreme Court advocates, he suggests, can handle a justice who challenges them. We should hope so.

Hat tip: Feminist Law Professors.
Posted 11:19 AM by Mary L. Dudziak [link]

The Good News in Today’s California Marriage Decision

Andrew Koppelman

I agree with Mary Dudziak’s smart post on today’s California Supreme Court decision upholding Proposition 8, which abolished same-sex marriage in that state (though it did not retroactively nullify marriages already validly celebrated). If anything, she has understated the pro-gay valence of the opinion: the Court held that a broader restriction on same-sex couples’ rights might well have been invalid, and that same-sex couples in that state continue to have a constitutional right to have their relationships recognized. Like Vermont (which has since enacted marriage by legislation without court prompting) and New Jersey, California is constitutionally required to provide domestic partnerships with all the same rights and obligations as heterosexual marriage. Discrimination on the basis of sexual orientation remains unconstitutional. In short, most of the holding of the Court’s earlier marriage decision remains untouched by Proposition 8.

The central issue in the case was whether Proposition 8 was an “amendment,” in which case it was valid, or a “revision,” which, under California constitutional law, cannot permissibly be done by referendum. The distinction is an abstruse one, but the Court went some way toward clarifying it. It held that a revision is a “wholesale or fundamental alteration of the constitutional structure,” and Proposition 8 did not accomplish that.

It reached this conclusion, however, by construing Proposition 8 to have a very narrow effect on preexisting law, including its own previous decision in the Marriage Cases that the right of same-sex couples to legal recognition was protected by the California constitution.

The key paragraph is the following (from pp. 92-93 of the slip opinion):

“Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples — including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses — with the sole, albeit significant, exception that the designation of “marriage” is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means “repeal” or “strip” gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of “marriage” to describe their relationship. Thus, except with respect to the designation of “marriage,” any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally “suspect” under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion. Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution.”

The less remarkable part of the opinion was the part holding that Prop. 8 did not have retroactive application. The Court relied on the established principle "that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (P. 129)


Unfortunately, it unnecessarily weakened the logic leading to this sensible conclusion by buttressing it with the following implausible parade of horribles:


“A retroactive application of the initiative would disrupt thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives according to the law as it has been determined by this state’s highest court.”

But if Proposition 8 only affected the label of marriage, as the earlier part of the opinion had just held, then retroactive application would simply have converted those relationships to domestic partnerships, which under California law create the same property rights as marriages, don’t they?

The bottom line is that sexual orientation remains a suspect classification in California. Same-sex couples can’t be disadvantaged in any tangible way without a compelling reason. And a constitutional amendment that restricted their rights more than Proposition 8 did might – the Court won’t say – be invalid. Not a good day for same-sex couples, but hardly a disaster.

Posted 5:15 PM by Andrew Koppelman [link]

Berns on prerogative and truth commissions

Sandy Levinson

I strongly recommend reading Walter Berns's op-ed in Saturday's Wall Street Journal on presidential prerogative. Like Harvey Mansfield (and John Yoo), Berns offers a reading of Article II that basically incorporates the theory of "prerogative" from Locke's Second Treatise. Especially interesting is the conclusion to his essay:

Questions arise: Was the Constitution or, better, the nation actually in jeopardy after 9/11? Was Mr. Bush entitled to imprison the terrorists in Guantanamo? Were the interrogations justified? Were they more severe than necessary? Did they prove useful in protecting the nation and its citizens? These are the sorts of questions Locke may have had in mind in his chapter on the prerogative. Who, he then asked, shall be judge whether "this power is made right use of?" Initially, of course, the executive but, ultimately, the people.

The executive in our case, at least to begin with, is represented by the three Justice Department officials who wrote the memos that Mr. Graham and many members of the Obama administration have found offensive. They have been accused of justifying torture, but they have not yet been given the opportunity in an official setting or forum to defend what they did.

That forum could be a committee of Congress or a "truth commission" -- so long as, in addition to the assistance of counsel, they would be judged by "an impartial jury," have the right to call witnesses in their favor, to call for the release of evidence including the CIA memos showing the success of enhanced interrogations, and the right to "confront the witnesses" against them as the Constitution's Fifth and Sixth Amendments provide. There is much to be said for a process that, among other things, would require Nancy Pelosi to testify under oath.

One is not sure, of course, whether Berns is being completely serious in his seeming quasi-endorsement of a "truth commission." But I do not think that anyone should be dissuaded from supporting such a commission by the prospect of requiring the Speaker to testify under oath. Many Democrats have absolutely nothing to be proud of with regard to their acquiescence to the Bush Administration and its policies of torture and rendition to countries that torture. Much was available prior to the release of the Abu Ghraib photographs, and not one prominent Democrat was critical of what was clearly taking place. Sen. Jay Rockefeller publicly endorsed "extraordinary rendition" when it was clear that torture would be used. It would not shock me if Speaker Pelosi has been less than fully candid, though, frankly, it would also not surprise me if the CIA is basically distorting the record and that Pelosi's story will stand up. But, surely, no one should oppose a truth commission simply because a number of Democrats may end up being tarnished (along with far more Bushies).
Posted 4:29 PM by Sandy Levinson [link] (38) comments

Wittes responds

Sandy Levinson

Ben Wittes was kind enough to send me the following comment after reading my posting yesterday, which he has authorized me to post:

Dear Sandy:

I appreciated your thoughtful blog post on my comment to the Times other day. A word of pushback, if I may:

While I grant you that my citation of the oath was not a direct quotation, I think you read much too much into the wording of an off-hand paraphrase to a reporter. The implication of your post is that I believe that non-criminal detention offend constitutional values but that I think it is okay anyway because the President has sworn an oath to protect the country (as opposed to the Constitution) and is, therefore, entitled to violate the Constitution by way of fulfilling his oath. I don't believe any of these things.

For starters, I believe that quite apart from questions of presidential power, there is ample space under extant constitutional law for preventive detention in the terrorism context--just as there are preventive detention authorities under a variety of other statutes. This is a complicated question that I treat at some length in my book and will not rehash here. Suffice it to say that American law tolerates preventive detention in a variety of contexts if the danger the individual poses is great enough and the proceeses for assessing that danger are adequate.

Second, the use of "protect the country" as a short-hand for the president's oath is only at odds with an oath whose literal language promises to protect the Constitution if one believes that the steps necessary to protect the country actually affront the Constitution. Otherwise, there really isn't a tension. The "country," after all, is a political entity constituted by the Constitution. Protecting the Constitution requires protecting the country more broadly, and protecting the country is merely a defense of physical space if one does not also defend the values that constituted it.

Third, as the Constitution also constitutes the Office of the President, I do not believe the President has any power to act beyond the powers the Constitution grants him. Presidents, of course, have occasionally done so in good-faith efforts to defend the nation (and the Constitution). But I do not argue for the legality of such actions, however necessary under the circumstances that gave rise to them they might have been.

Posted 4:17 PM by Sandy Levinson [link]

Quick take on the California Same-Sex Marriage Decision

Mary L. Dudziak

An initial take on the California Supreme Court decision today upholding Proposition 8, which bans same-sex marriage. (I will revise later if needed after a more careful read of the court's very lengthy opinion.) My bottom line: opponents of same-sex marriage may have won the battle, but lost the war.

Importantly, in today's ruling, the court did not take up the basic question of whether there is a fundamental right to same-sex marriage under the state constitution, but rather the more narrow question of whether Proposition 8, which overturned the court's earlier ruling that there was such a right, was a constitutional amendment or a constitutional revision. Amendments are proper subjects for voter initiatives in California. Revisions, which are more fundamental changes, must go though a state constitutional convention. The court found that Prop. 8 was an amendment (and so was proper), rather than a revision. To get there, however, the court narrowly interpreted Proposition 8. [More below the fold.]

The court noted:

In analyzing the constitutional challenges presently before us, we first explain that the provision added to the California Constitution by Proposition 8...properly must be understood as having a considerably narrower scope and more limited effect than suggested by petitioners in the cases before us. Contrary to petitioners’ assertion, Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple’s state constitutional right of privacy and due process that was analyzed in the majority opinion in the Marriage Cases — that is, the constitutional right of same-sex couples to “choose one’s life partner and enter with that person into a committed, officially recognized, and protected family relationship that enjoys all of the constitutionally based incidents of marriage” (Marriage Cases, supra, 43 Cal.4th at p. 829). Nor does Proposition 8 fundamentally alter the meaning and substance of state constitutional equal protection principles as articulated in that opinion. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of
opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.

The court carved out space for the rights of same-sex couples protected in the Marriage Cases, emphasizing: "among the various constitutional protections recognized in the Marriage Cases as available to same-sex couples, it is only the designation of marriage — albeit significant — that has been removed by this initiative measure." (emphasis added). Taking into account the "actual limited effect of Proposition 8 upon the preexisting state constitutional right of privacy and due process and upon the guarantee of equal protection of the laws," (emphasis added), the court found Prop 8 not to be a constitutional revision.

What does all this mean? One possibility, especially when considered in light of the court's refusal to invalidate the marriages performed before Prop 8 went into effect (on the basis that Prop 8 was not meant to be retroactive), is that opponents of gay marriage have won the battle, but lost the war. It was only by narrowing the effect of Prop 8, thereby preserving many rights of same-sex couples in California, that the court reached this outcome. As life goes on in California, with 18,000 legally married same-sex couples, voters may well discover, as have residents of other states, that the sky will not fall. It will simply be a matter of time before Prop 8 is overturned by a new state initiative.

Full disclosure: I signed an amicus brief in the case arguing that Proposition 8 should be overturned.

Update: In addition to Andrew Koppelman's excellent post, Ilya Somin, weighs in, furthering a helpful line of posts of his questioning the "hollow hope" line of argument about gay rights and the courts.
Posted 2:37 PM by Mary L. Dudziak [link]

Why the Sotomayor Nomination Makes Sense

JB

Barack Obama's nomination of Sonia Sotomayor is a good example of how Presidents make Supreme Court appointments: they balance political constituencies they wish to favor or reward and the predicted ease or difficulty of confirmation with their desire to have jurists who will cooperate with their policy initiatives.

Sotomayor will be the first Hispanic to serve on the Supreme Court if one does not count Benjamin Cardozo, a Sephardic Jew whose great-grandfather, Abraham Nunez Cardozo, emigrated to the United States from England. Her appointment is designed to please a two important constituencies for the Democratic party, Hispanics and women. Although the media debate has largely been about what the Court "needs" in terms of diversity and background experience (for example, the debate about "empathy"), a President is far more likely to be concerned with promoting his electoral interests and those of his party.

The fact that Sotomayor is both a woman and a Hispanic may help her win confirmation in the Senate, for Senators are just as aware of the politics of appointments as Obama is. Obama will likely need one or two Republicans to avoid any threat of a fillibuster; a candidate who appeals to important constituencies that Republicans also need will be harder to oppose and can help provide the 60th vote. Also helpful may be the fact that Sotomayor was first appointed to the bench by a Republican and is being positioned as a moderate or pragmatic liberal. In this respect, the careful positioning of Sotomayor as not the most liberal candidate Obama was considering helps to make her confirmation easier and also helps establish Obama's own image as a non-doctrinaire pragmatist. (This may explain why the names of seemingly more liberal candidates were regularly floated in the media.) Thus the choice of nominee also reflects back on the President who nominates. It is also worth noting that the pick was handled relatively efficiently and with a minimum of drama. The way that a nominee is chosen reflects back on a President's ability to manage important decisions.

Obama's pick of Sotomayor gives him a liberal replacement to David Souter who is likely to form part of the liberal coalition of Justices currently on the Court. Sotomayor has a fairly long track record as a judge. As a result, Obama knows pretty much what he is getting, which suggests that Sotomayor is unlikely to disappoint Obama repeatedly on the issues he cares about, at least while Obama is President.

When you put these factors together, Sotomayor seems like a perfectly sensible pick (assuming, as always, that no embarrassing details emerge in the confirmation hearings). There are other very suitable people Obama might have chosen instead, but he is likely to have other opportunities during his presidency. Therefore we should not understand his failure to pick someone like Diane Wood or Elena Kagan, for example, as reflecting any difficulties with these candidates. They may well end up on the Supreme Court, just as Steve Breyer eventually was selected by Bill Clinton after having been passed over the first time.



Posted 9:42 AM by JB [link]

The Return of Liberal Constitutionalism

JB

This Wall Street journal article discusses Reva Siegel's and my edited collection, The Constitution in 2020 (Oxford University Press 2009) and Pam Karlan, Goodwin Liu and Chris Schroeder's book, Keeping Faith With the Constitution (American Constitution Society 2009).

These two books are part of a renaissance of liberal constitutional thought that has emerged in the past five years. The original Constitution in 2020 Conference held at Yale Law School in April 2005 brought together many different legal thinkers to think about how liberals could respond to the conservative constitutional views that had dominated American politics for the past twenty five years. The Constitution in 2020 project was begun shortly after George W. Bush's 2004 election, when it seemed that conservatives would be in power forever. Five years later, the conservative movement seems to have exhausted itself, at least for the moment. Now it is time for liberals to offer a positive vision of the Constitution in a new political era.

The new liberal constitutionalism has many different versions. This should not surprising given the many talented people doing work these days. Nevertheless, three key themes have emerged:

The first theme is constitutional fidelity. Karlan, Liu and Schroeder call their theory constitutional fidelity. Their approach to interpretation builds on previous work by constitutional scholars, including my own. Constitutional fidelity means fidelity to the constitutional text and to the principles stated in the text or that underlie the text. Because these principles are often abstract and open ended, it falls to each generation to decide how to apply them in their own time. The text and basic principles endure, but their applications can change over time. The semantic meaning of the constitutional text does not change without amendment, but constitutional constructions that attempt to implement the text and flesh out its vague and abstract clauses in practice can and have changed over time in response to changing circumstances. It is in this sense that people say that the Constitution's "meaning" changes over time. What changes is how we apply its words, in particular its abstract and vague clauses, not the dictionary definitions of the words themselves. The words "equal protection," for example, mean what they meant in 1868, but how we apply them is very different today. Thus, what people sometimes call living constitutionalism is fully consistent with fidelity to the constitutional text and its underlying principles.

The second theme is democratic constitutionalism. Reva Siegel and Robert Post coined this term to describe the ways in which constitutional decision making by courts is always in dialogue with constitutional claims made in politics. Courts have neither the first word nor the last word on the meaning of the Constitution. Rather, their interpretations reflect the values of their time, including the work of political and social movements that make claims on the Constitution and shape constitutional culture. In addition, the decisions of courts often give rise to protest and counter-mobilizations that eventually shape the way that doctrine develops. Because in our system of government ordinary citizens have both the right and the ability to talk back to courts, the development of constitutional law maintains its democratic legitimacy.

Democratic constitutionalism has a second meaning-- the idea that in the current age many of the most important constitutional questions are best handled by the political branches rather than by courts. (This is sometimes called legislative constitutionalism.) The civil rights revolution of the 1960s and 1970s is famous for its judicial decisions, but in fact many of the most important innovations came from the great civil rights acts of the 1960s, which the courts ratified. Today many of the most important articulations of constitutional values will come not from the development of new constitutional doctrines by the courts, but from congressional statutes that promote constitutional values. For example, economic and social rights, like rights to health care and education, are best achieved through legislative action, with courts playing a supporting role rather than taking the lead. In the long run, then, courts tend to support and ratify constitutional constructions by the national political process, and many of the most important constitutional constructions come from the political branches.

The third theme is redemptive constitutionalism. Redemptive constitutionalism is the idea that the Constitution is part of an inter-generational project to create, in the words of the Preamble, a more perfect union. The Constitution contains commitments that we have only partially lived up to, promises that have yet to be fulfilled. Our Constitution is a work in progress, and it belongs to each generation to do its part to fulfill its great promises. Redemptive constitutionalism assumes that the Constitution is deeply aspirational, and that pledging fidelity to the Constitution means working to improve our society and to achieve its ideals of liberty and equality over time. Redemptive constitutionalism is the great American tradition of constitutional change: in each generation people have seen injustice in their society and made claims in the name of the Constitution in order to remedy these injustices. The great social movements that secured the basic rights and liberties that Americans now take for granted-- for example, the civil rights movement and the women's movement-- are examples of redemptive constitutionalism at work.

These three ideas-- democratic constitutionalism, redemptive constitutionalism, and constitutional fidelity-- are all connected. Ordinary citizens, social movements and political parties make claims on the Constitution, arguing about what the Constitution truly means, and calling for its restoration and its redemption. If they succeed in persuading others to their point of view, they eventually affect how the Constitution is interpreted by courts and built out by the political branches. This is the process of democratic constitutionalism. In each generation, Americans argue with each other about how best to apply the Constitution's enduring principles and redeem them in their own time. They respond to changing times and circumstances by asking how to apply a basic text and enduring principles that do not change. This is the practice of constitutional redemption, and it is also the way that Americans engage in constitutional fidelity. It is how each generation pledges faith in the Constitution and makes the Constitution its own.


Posted 6:50 AM by JB [link]

Further notes on constitutional dictatorship

Sandy Levinson

1. I begin with the lead story in yesterday's New York Times, titled "Obama Detention Plan Poses Fundamental Test" in the print version and, interestingly enough, "President's Detention Plan Tests American Legal Tradition" on the web. In any event, the story details the possibility that the United States will attempt to confine, perhaps for a lifetime, people it considers national security threats without trial or, indeed, even after acquittal in a trial. There is much that could be said, but I want to note only a quotation by Benjamin Wittes, who has written a book, Law and the Long War: The Future of Justice in the Age of Terror that argues "for an indefinite detention system," according to the Times. "This is the guy who has swotn an oath to protect the country," Mr. Wittes said, "and if you look at the question of how many people can you try and how many people are your terrified to release, you have to have some kind of detention authority" even in the absence of anything that could be dignified with the term fair trial.

Perhaps Mr. Wittes is correct, in which case we should simply change the oath of office from the present "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States" to “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States and will always act in the best interests of the United States."

Perhaps Mr. Wittes (and many other people) believe this would change nothing, but some naive readers may believe that Presidents are actually confined by the Constitution on occasion and may have to come to the reluctant conclusion that what they believe is in the best interests of the country is actually beyond their constitutional authority. So adopting an updated constitutional oath would clear up any such confusion and make altogether clear that when we elect a President, we are indeed willing to give him/her basically dictatorial authority.

President Obama himself has noted, "In our constitutional system, prolonged detention should not be the decision onf any one man. But, of course, it's actually quite misleading to believe that a "constitutional dictatorship" really must reduced so completely to fiat rule. And, in addition, the President is much too busy to make the exquisite decisions person-by-person. So, as in all other aspects of the modern administrative state, we're really talking about the ability of the President to "delegate" such decision-making authority to a small group of men and women who will know, presumably, that they won't have to defend their decisions before anything that might be described as a traditional Article III court applying traditional legal standards.

2. The Times also ran an extremely story by John Burns on the scandal toucning all parties in the current British Parliament, which, Burns suggests, has generateed talk "of a political system grown petrified, and in urgent need of a root-and-branch overheal that restores the accountability of politicians--and of the government--to the people." Indeed, he notes that some critics of the present parliamentary system in England refer to a "parliamentary dictatorship," where the Prime Minister is able, much of the time, to rule more-or-less with the rubber-stemp compliance of his (or, as in the case of Margaret Thatcher, he) party, "with the only moment of meaningful accountability for governments coming at general elections...."

It's a very fine article that everyone should read. Where Mr. Burns, alas, goes dreadfully wrong is his almost chauvinistic suggestion that the United States is free from the British disease. Thus he writes that "American presidents, who struggle with hostile majorities in Congress or assertive Supreme Courts, have envied the relatively untrammeled power wielded" by British prime ministers. We, apparently, operate under the "balance-of-power constraints of the American Constitution." Then how explain that Margaret Thatcher was unceremoniously bounced by her party when the discerned her as an electoral liability and that Tony Blair was almost as unceremoniously pushed from office by the Labour Party? And how explain that when presidents are not faced with "hostile majorities" in Congress, they can increasingly count--especially if Republican--on the lemming-like loyalty of congressional majorities who are especially delighted to provide not an ounce of the oversight that the naive might believe attach to a separation-of-powers system? And, of course, even when George W. Bush was faced with divided government in 2007-2009, he was still able to exercise quasi-dictatorial powers with regard to military and foreign policy.

But enough of Bush bashing. After all, the President who seems determined not to hold any high-ranking member of that Administration accountable for disgracing the country and making us less safe to boot by adopting torture as a national policy is Barack Obama, to whose campaign I contributed and for whom I happily voted (and whose presidency, overall, still leaves me delighted). But surely we should recognize that the American version of "constitutional dictatorship" is built into our system and not simply a function of charcter. I confess I was much concerned by a conversation that I had last week with an old graduate school classmate, the most brilliant member of our cohort and a specialist on international and military relations (and, for what it is worth, a registered Republican to boot). He expressed great concern about the looming catastrophe facing the United States as the result of Presidentn Obama's ill-thought-out escalation of the war in Afghanistan. My friend noted that Kandahar was originally established by Alexander the Great, who was merely the first outsider who had delusionary visions of establishing a hegemony over Afghanistan. It's simply never been done, with the British and the Soviets being our most recent predecessors in such an effort. There is no reason to believe the U.S. will be more successful, and one possibility of our escalation in Afghanistan will be to exacerbate the situation in what is truly the world's most dangerous country, Pakistan.

Though newspapers do occasionally suggest that some Democrats are unsettled about the Obama policy, there is scarcely a great debate taking place in Congress. And the mad-dog Republicans seem to be concerned only with arguing that the United States, alone among the nations of the world, cannot have a single "terrorist" in its territory, even if incarcerated in a maximum security prison.

3. Finally, I note Paul Krugman's excellent column, which bewails the current state of politics in California." So." Krugman asks, "will America follow California into ungovernability? Well, California has some special weaknesses that aren’t shared by the federal government. In particular, tax increases at the federal level don’t require a two-thirds majority, and can in some cases bypass the filibuster. So acting responsibly should be easier in Washington than in Sacramento." Sigh.... It should be easier, but, of course, is may not. Part of the reason is mad-dog Republicans who have decided to drink Rush Limbaugh's hemlock. But perhaps a Nobel Prize economist, who ends his column by writing, "On the other hand, the problems that plague California politics apply at the national level too," might address the possibility that our Constitution, too, has features in it that make responsible near impossible.

I have opted to allow comments. But I do hope that most of you will post on the structural arguments attached to the presence (or absence) of "constitutional dictatorship" either here or in the UK rather than rushing immediately to an argument on the substance of the policy. Perhaps you think Obama's policy in Afghanistan is just terrific. Fine. Just address the fact that it is his policy, rather than something truly authorized, after significant debate, in and by Congress.

Posted 3:31 PM by Sandy Levinson [link] (33) comments

Why is Empathy Controversial? Or Liberal?

Susan Bandes

Emotion terms are notoriously slippery. But if we understand empathy as the ability to take the perspective of another, it ought to be uncontroversial that empathy is an important component of judicial judgment. Empathy, so understood, is a basic and necessary tool for making sense of the intentions and actions of others.

So, as Mark Graber asks, who could be against empathy? And more particularly, why is empathy liberal, if we all use it? Perhaps because empathy goes by another name when it comes easily—for example, when Supreme Court justices take the perspective of those from similar backgrounds or with similar worldviews. This sort of empathy looks neutral and natural, not ideological or partial. It tends to be portrayed as garden-variety judicial reasoning.

We all use empathy, and despite our best intentions, it is always selective and riddled with blind spots. We can try to correct for this partiality if we are self-aware. But those who study cognitive psychology and decision-making find that we aren’t all that good at identifying and critiquing our own background assumptions. A better way to encourage this sort of correction is through debate with others who hold differing viewpoints. Judges, like the rest of us, make better decisions when forced to examine and articulate their premises.

The oral argument in Safford v. Redding, the school strip search case, is a nice illustration of how pervasive empathy is in judging, and of how selective empathy can affect legal reasoning. The justices spent substantial time examining the viewpoint of the school administrators faced with keeping students safe from dangerous drugs. They took the administrators' concerns very seriously, and viewed them in a favorable light. Here is Justice Souter, for example, imagining what would go through the head of the principal charged with keeping the students safe: “My thought process is I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry.”

The Court’s effort to understand the viewpoint of the plaintiff was far more cursory (and often downright strange). Several of the justices consulted their memory of their own experience in school locker rooms, and concluded that their experience was a good measure of how intrusive the strip search was -- no different from asking students to change clothes in a locker room. Justice Ginsburg informed her brethren that this was no locker room suit-up. The search involved a thirteen-year-old girl forced to strip to her underwear and shake out her bra and underpants in front of school officials who suspected her of concealing prescription ibuprofen. The point is not that Justice Ginsburg's account is entitled to deference. The point is that she played the important role of reminding the other judges that their own experiences in school were not universal—or entitled to automatic deference.

To resolve the Fourth Amendment issue, the Court must determine how intrusive the search was, how important the government interest was, and whether the government adopted a reasonable means of addressing its concern. To do that, it first has to understand what’s at stake for all the litigants. That’s where empathy plays a role. Empathy offers no guidance in weighing the competing values of security and privacy at stake in the fourth amendment analysis. But when selective judicial empathy is left unaddressed, legal analysis may turn on questionable and unexamined assumptions about human behavior.

Labels: emotion and cognition, empathy

Posted 9:48 AM by Susan Bandes [link]

Rethinking Empathy

Mark Graber

Empathy is hot among liberals. President Obama insists he will appoint a Supreme Court justice able to empathize with the litigants before the Court. Conservatives are aghast.

From one perspective, who could be against empathy, particularly if empathy is understood as an ability to see things from the perspective of the various litigants. This obviously should be in the toolbox of every judge, everybody who makes decisions, and all human beings.

On the other hand, I imagine members of the Nazi Party, the Klan, Al Quida, etc., regard themselves as persecuted victims. Many probably firmly believe that our disdain of them is a consequence of a failure of empathy. If we could truly imagine the world they see, we would be on their side. I suspect all I can say is that I think the world they see is distorted. Nevertheless, this suggests to me that, whatever the theoretical differences, most failures of empathy are likely to be rooted in different values, not judicial abilities or inabilities to see the world from the perspective of other people.

In a great many cases that justices decide, I suspect, empathy problems may exist on all sides. Consider the strip search of the 13 year old girl that is presently Exhibit A for the merits of empathy. On the one hand, as has been pointed out, Justice Ginsburg is the only member of the present Supreme Court who has the experience of being a 13 year old girl. On the other hand, all the Justices have had the experience of being 13 years old (can Stevens remember that far back?), many, I suspect, have had the experience of being in a middle school with an overbearing assistant principal, and several, I believe, have had the experience of having a thirteen year old daughter, friend, or sister. I am 3-3 on that score. On the other hand, how many Supreme Court justices have had the experience of being a harried middle school principal in an overcrowded school with significant drug and alcohol problems? How many have family members or close friends that fit that description? Put differently, I am not exactly sure where the failure of empathy is most likely to occur in this case.

In short, a good justice should try to learn as much about the values actually at stake in the case and the perspectives of the different parties. But empathy may be more of a slogan than a plan of action.



Posted 2:35 PM by Mark Graber [link] (98) comments

Support your local bigot

Andrew Koppelman

I have written several times that there should be accommodation for religious conservatives who have conscientious objections to recognizing same-sex marriages. Religious exemptions from antidiscrimination laws are fairly costless, I’ve argued: as long as the religious dissenters are idiosyncratic outliers – and they generally will be, based on the scant number of accommodation claims we’ve seen – they’ll have no effect on gay people’s opportunities, and so they can harmlessly be left to live out their ideals in peace.

This has elicited the following objection from several friends: why do you want to accommodate bigots? The issue is now being squarely presented in New Hampshire, where opponents of religious accommodation are now ready to let same-sex marriage die in that state rather than, as one supporter has put it, “enshrine homophobia into the statutes of the New Hampshire Legislature.”

What is bigotry, anyway, and why is it a bad thing? The answer to this question will provide an answer to my skeptical friends, and also show why the legislators resisting religious accommodations in New Hampshire are sadly mistaken in their priorities.


Bigotry is wrong for two reasons. First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these.

The most obvious harm of bigotry is that people are hurt by it. Racism hurts racial minorities; sexism hurts women; homophobia hurts gay people. This harm occurs even if the people who are doing the discriminating are innocently deluded about what they are up to. “Honest to God when I was a kid, I believed that junk,” a white southerner, Hugh Wilson, explains in Jason Sokol’s recent book There Goes My Everything: White Southerners in the Age of Civil Rights, 1945-1975. “I was just like everybody else. Too many of us thought that, we knew individual blacks to be awful fine folks but we thought of blacks as a race as being sort of an Amos and Andy situation . . . . I began to get a lot older before I began to realize.” Perhaps, in his situation, Wilson can be excused for his ignorance. But excusable or not, his attitudes were profoundly destructive. Calling young Wilson a bigot is not to say that he’s a bad person who should be punished. It’s saying that he’s a deluded person who needs to be stopped from damaging others.

A second wrong of bigotry is the wrong of unjust perception. This is wrong even if it causes no harm at all. In a revealing little parable in her 1971 book, The Sovereignty of Good, Iris Murdoch elegantly refutes a then-fashionable school of moral philosophy that concerned itself only with the appropriateness of conduct, and which was entirely indifferent to people’s internal mental states.

A woman, M, feels hostile toward her daughter-in-law, D. M thinks that her son has married beneath him, and finds D unrefined, brusque, and rude. However, M always behaves beautifully toward D, and keeps her real opinion well concealed. And then suppose that the young couple emigrates, or D dies, so that whatever happens after that happens only in M’s mind. M now reflects on D, moved only by love for her son and a desire to be just. She concludes that D has many good qualities that M had failed to appreciate: she is not undignified but spontaneous, not vulgar but refreshingly simple, and so on. In the course of these reflections, Murdoch insists, M has been “active, she has been doing something, something which we approve of, something which is somehow worth doing in itself.”

The relevance here of Murdoch’s point can be made clearer, perhaps, by considering the odd case of Japanese anti-Semitism, which our host Jack Balkin describes in his book Cultural Software. “[A]nti-Semitic books and comments have appeared continually in Japan over the years, often repeating the most vicious claims of Nazi ideology and Eastern European anti-Semitism. Especially popular are beliefs about a secret worldwide Jewish financial and media conspiracy of enormous scope and power.” This nonsense functions for the Japanese as a way of accounting for and complaining about the power of the United States, which is taken to be controlled by the Jews. It does not, however, have much impact on anyone: “There are very few Jews in Japan today and thus very few opportunities for discrimination against them.” Bigotry is bigotry in Germany or in Japan, but it doesn’t matter for the same reasons in both places. In Japan, the complaint is entirely Murdochian: it is wrong to judge people unjustly. But why should the law care about this kind of harmless injustice?

There is, of course, a moral category of reprehensible ignorance, recognized as far back as Aquinas, who thought that error was culpable if it were either directly voluntary (because the agent deliberately avoided uncomfortable information) or if the agent were negligent about knowing what he ought to know. And one can be reprehensible in this way both for one’s private thoughts, in the Murdochian sense, and for one’s actions that ignorantly damage other people. I have no doubt that there are some homophobes who are culpable in just this way. I also think that there are others who are in the grip of a world view according to which homosexuality just can’t imaginably be morally acceptable, and who aren’t penetrable by any data to the contrary. I’m less inclined to blame them, particularly since, as the struggles of those within the “ex-gay movement” shows, there are some gay people among them.

Finally to return to the question of religious exemptions! The objection to religious exemptions can’t be that they’ll harm gay people, because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities. It is rather that we shouldn’t accommodate bigotry. Now, I disagree with the views of religious conservatives who think homosexual conduct to be morally wrong. I think that these views are mistaken in just the way that M’s views had been in the early part of Murdoch’s story. I even think that some of those who hold those views are morally culpable. But does this mean that the law ought to be used to punish them?

Retribution is appropriate only if there is harm. Imagine you discover that someone has spent all afternoon sticking pins in dolls representing some people he doesn’t like (but has no just complaint against), hoping that this will cause their painful deaths. You’re entitled to decide that he’s a nasty person. But does he deserve punishment? For what, exactly?

If they can be rendered harmless, antigay bigots, even the morally reprehensible ones, will be just like the guy with the pins and the dolls. Nasty, maybe (though I know people on that side of the political divide who, I’m convinced, are honestly doing their best to pursue the right as it is given to them to see the right). But why is it important for the law to beat up on them?

More pertinently, why is beating up on them so important that it’s worth letting same-sex marriage die in New Hampshire altogether rather than give those people any accommodation?

There are people who are reprehensibly embracing self-aggrandizing fantasies that are hurting real people. But I’m sorry to say that they’re not the Christian conservatives. They are the people on my side, the gay rights side, who are willing to sacrifice the hopes of New Hampshire gays who want to marry, out of pure malice toward their political opponents.


Posted 4:56 PM by Andrew Koppelman [link]

Elena Kagan and the z-axis

David Stras

A few days ago, Jan Crawford Greenburg had an interesting post on her Legalities blog regarding the political calculus for a White House looking to making a Supreme Court appointment. “When selecting a Supreme Court nominee,” Greenburg writes, “[o]n the x-axis, you measure how closely the nominee fits with what you want in a Justice,” and “on the y-axis, you measure how easily the nominee could be confirmed.” Of course, the optimal point for a nominee, Greenburg opines, is the upper right quadrant of the graph where you are essentially a judicial rock star who can be easily confirmed. Applying those criteria, Jan views Elena Kagan as the front-runner to replace the retiring David Souter.

I tend to agree with Jan that if I were to bet on a nominee at this point to replace Justice Souter, it would be Elena Kagan. I think that Kagan can be confirmed more easily than either Wood or Sotomayer (though Wood is likely confirmable too given the current composition of the Senate), and she likely fits the criteria the Obama administration is looking for in a nominee. I say “likely” because it is not even clear to me what judicial qualities Obama is searching for in his nominee. Even if one assumes that “empathy” is the predominant criteria for Obama’s nominee, which I highly doubt given the importance of qualifications and ideology in the selection process, empathy is not exactly a term that precisely describes a judicial philosophy. Phrases such as “strict constructionist” or a nominee with “empathy” are useful to sell a nominee to the public, but are not very helpful in defining the contours of a nominee’s judicial philosophy. But I digress and that is the subject of a post for another day.

While I often find Jan’s posts interesting and helpful, the axes in her graph are underinclusive. If I were to add a third axis to make the graph three-dimensional, it would undoubtedly include a nominee’s ability to influence and move the Court, particularly the median Justice. To paraphrase Justice Brennan, understanding the Supreme Court is all about counting to five and a Justice that can build coalitions and persuade colleagues is at least as useful to a President as a Justice that perfectly mirrors a President’s ideological preferences, particularly when it involves a nomination that will do little over the short term to alter the ideological balance of the Court. During October Term 2006, Justice Kennedy was in the majority in every one of the Term’s 26 5-4 decisions. Those 5-4 decisions constituted nearly one-third of the Court’s plenary cases from that Term. In other words, a Justice that can even moderately influence Justice Kennedy (or a future swing Justice) can have far more influence than one who merely votes the President’s ideological preferences without engaging with colleagues.

The problem with that third axis, or to use Jan’s terminology the z-axis, is that it very difficult to assess whether a new Justice can be successful in moving the median. No doubt a motivating factor behind the nomination of John Roberts as Chief Justice was the hope by the Bush administration that Roberts’ strong intellect and collegial behavior would help build lasting coalitions on the Court. In that regard, Roberts has only been moderately successful. While his first Term on the Court resulted in a number of unanimous opinions, the addition of Alito and Roberts has not really pushed the median of the Court to the right, at least as much as many people thought they would. On the other end of the spectrum, the papers of a number of Justices reveal that Justice Brennan was particularly effective at building coalitions, even when the majority coalition issued an opinion that was not in line with Brennan’s ideal policy preferences. I doubt seriously that any of the people involved in vetting the nomination of William Brennan from the Eisenhower administration anticipated in advance his uncanny ability to build coalitions on the left. Thus, it is very difficult on an ex ante basis to predict a prospective Justice’s ability to influence colleagues and move the Court. Perhaps it is even more difficult than anticipating ideological drift, a subject about which fellow Balkinization blogger Lee Epstein has written extensively.

Nonetheless, the reason why I believe that Elena Kagan makes the most sense for the Obama administration is that she does well on the two axes identified by Jan Greenburg, but also potentially excels on the z-axis in her ability to build coalitions on the Court. From all accounts, Kagan did a superb job at Harvard Law School as Dean and pleased both conservatives and liberals alike with the moves she made during her tenure. In a recent article by David Savage and James Oliphant, Harvard Professor Charles Fried described Kagan as the “really outstanding” potential nominee among his choices because “she respects everyone and makes the conservatives feel comfortable.” Other conservatives also lined up to support Kagan during her confirmation hearings as Solicitor General.

There are certainly reasons not to nominate Kagan. For one thing, she is not a sitting appellate court judge, though I think that the emphasis on prior judicial experience is seriously overblown and unnecessary. Second, she does not have a great deal of litigation experience, particularly before the Supreme Court, but that did not seem to harm her in her confirmation as Solicitor General where arguably prior litigation experience is even more important than as a sitting Supreme Court Justice. Third, she has backed off considerably from the position she took in a 1995 article from the University of Chicago Law Review where she powerfully argued that nominees should answer questions that reveal their “substantive views.” As we have witnessed over time, inconsistency can create difficulty for a nominee. I am sure that there are other potential stumbling blocks to her confirmation, but on all three axes, Kagan seems to do better than the other short-listers and thus in my mind is the leading contender for Justice Souter’s seat. She certainly would not be my personal choice for a nominee to the Supreme Court, but she may well end up being Obama's.

Posted 11:46 PM by David Stras [link]

The Democracy Index

Heather K. Gerken

Alert Balkinization readers may have noticed that a new book is featured on the right hand column of the blog: The Democracy Index: Why Our Election System is Failing and How to Fix It. It argues that we should create a Democracy Index, which would rank states and localities based on their election performance. Imagine the rough equivalent of a U.S. News and World Reports ranking, one that focuses on the basic questions that matter to voters: how long were the lines? how many ballots got discarded? how many machines broke down?

I first proposed the idea in 2007. Within a few months then-Senators Obama and Clinton put the idea into separate bills. Within the year, Congress set aside $10 million to fund the efforts of five states to improve their data-collection processes. During the same period, foundations and think tanks have organized several meetings to discuss the proposal. The idea has attracted keen interest from several foundations, including the Pew Trusts' Center on the States, which has played a leading role in improving state governance and promoting data-driven decision-making.

As I explain in detail on the book, the ranking should be useful to the three key leverage points for election reform: voters, policymakers, and bureaucrats. Voters would have the information they need to hold election officials accountable for their missteps and reward them for good performance. Policymakers would have the information they need to figure out whether their state is doing as well as it should and to identify cost-effective strategies for improving performance. Election administrators would have a means of diffusing the professional norms that are the hallmark of a well-run system.

The book offers a good deal of analysis on how our election system is run and why it is hard to change. I spent a year and a half interviewing people in every part of the system, from low-level bureaucrats to secretaries of state, from on-the-ground reformers to academics. Their stories help frame the arguments I make. The book is also written for a general audience, so the style (I hope!) is accessible.

Finally, while the argument is grounded in a concrete policy proposal, it is animated by a larger theme, one that I first wrote about on Balkinization.

We have a "here to there" problem in election reform. We spend a great deal of time thinking about what’s wrong with our election system (the "here") and how to fix it (the "there"). But we spend almost no time thinking about how to get from here to there -- how to create an environment in which reform can actually take root. Rather than continuing to fight the same fight on this hostile terrain in the vague hope that something will eventually take, we should take a step back and figure out how to create an environment that is more receptive to change generally. In my view, it is time to think less about the end game and more about the interim strategies and institutional tweaks that will help us get from here to there.

The Democracy Index is a quintessential "here to there" approach. It does not create national performance standards. It does not take power away from partisan officials. It does not even endorse a set of best practices for administering elections. Instead, it pushes in the direction of better performance, less partisanship, and greater professionalism. The Index does so not by trying to resist the fierce push against change generated by our political system's twin engines -- partisan warfare and local competition -- but by harnessing partisanship and localism in the service of change. It is a modest reform that makes bigger, better reform possible. It gets us from here to there.


Posted 10:00 AM by Heather K. Gerken [link]