Monday, March 31, 2003
More Fallout from the Spargo judicial partisan activity case See this article from law.com.
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Fact Finding by the Three Judge BCRA Court Orin Kerr of the Volokh Conspiracy writes here:
what to do if Congress has created a special review procedure that requires a panel of three judges to find the facts, and the judges disagree? Are the "facts" for the purposes of higher court review the facts found by the majority of the judges on the panel? What if all three judges disagree on the facts? What if two judges agree on one point but another set of two judges agrees on another point-- should the higher court patch together the set of facts that had two votes, if there is one? Or does some other rule govern? This may have come up before: three judge trial panels are used occasionally by Congress, pursuant to 28 U.S.C. 2284. But my quick Westlaw search didn't find any cases on this question. Does anyone know of any prior cases in which this came up, or know of any statutory authority that covers it?
The problem is not as novel as it may seem---three judge courts are fairly common in election law litigation. Here is what I wrote in response to a proposal to use three judge courts to consider the constitutionality of voter initiatives:
A three-judge panel could minimize the ideological outlier problem as it manifests itself in findings of fact because fact-finding would be the product of at least a two-judge majority on the three-judge court. Delay for its own sake might be less prevalent as well. These concerns might justify the use of three-judge courts, though three-judge panels significantly increase administrative costs as they require use of additional scarce judicial resources. Apparently it is not easy for litigants to try cases before three judges. Additionally, administrative concerns may delay consideration of these cases.
Richard L. Hasen, Judging the Judges of Initiatives: A Comment on Holman and Stern, 31 Loy. L.A. L. Rev. 1267 (1998). My article cites to what is likely still the leading article on the topic, Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. Mich. J.L. Ref. 79 (1996). I don't have the article in front of me, but it looks like the discussion on 104-109 deals with the question of factfinding.
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More on the Nina Totenberg Story on the BCRA, and What It Means for the Law's Fate People are fascinated by Nina Totenberg's report (described two posts below this one). Many are shocked by the breach of confidentiality (How Appealing offered a link to my post under the description that Totenberg's report is a "must read," and it has already gotten 500 hits---that's far more than my usual arcane area of the law gets). Election law specialists are shocked by the possibility of a 1,000 page opinion.
But what is the larger significance of the story, assuming it is true? It provides some rational explanation for why there has been the delay (rather than, as some cynics have suggested, an attempt to wait out the changing of the guard at the Supreme Court). But it does nothing to suggest that the opinion will come any time soon. Perhaps NOW is the time (as I suggested in a post nearly a month ago) for the parties to seek mandamus from the Supreme Court, demanding that the court issue an opinion. If Totenberg's story is true, perhaps the two district court judges will oblige by issuing a ruling, letting the third judge's concurrence or concurrence and dissent come later. If nothing happens, the end result will be what I have been predicting all along---the constitutionality of the statute will turn on who retires this term and whether President Bush gets to name a replacement. Imagine if the lower court opinion is 2-1 striking down major portions of the law, and that gets upheld on a 4-4 split on a Supreme Court lacking a Chief Justice.
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Branch v. Smith and the 800 Pound Bush v. Gore Gorilla In today's opinion in Branch v. Smith, the Supreme Court unanimously agreed that a federal court was correct to impose a redistricting plan in Mississippi because a rival state plan proposed by a Mississippi state court had not been precleared by the Justice Department under section 5 of the Voting Rights Act. The state court plan would have been precleared automatically had Justice not objected within 60 days, but before that 60 days was up, Justice asked for more information and started the 60 day clock again. (Some had accused Justice of restarting the clock to aid Republicans (who benefited under the federal court plan) and hinder Democrats (who would have benefited under the state court plan).
Although the Justices were unanimous in holding that the federal court was correct in failing to defer to the state court plan that had not been precleared, they disagreed over the scope of federal statutes governing what the federal court was to put in place. 2 USC section 2a(c)(5) seemed to mandate the use of at-large districting, while later enacted 2 USC 2(c) seemed to require the use of single member districts. A majority of the court said that the federal court was to craft a plan with single member districts. Within that majority, a plurality read 2a(c)(5) as being applied to only a very narrow class of cases where "the state legislature, and state and federal courts have all failed to redistrict...[the provision governs a forthcoming election only when ] the election is so imminent that no entity competent to complete redistricting pursuant to state law...is able to do so without disrupting the election process." Plurality slip op. at 19. Three other Justices viewed section 2(c) as repealing section 2a(c)(5) by implication. Two dissenting Justices believed that section 2a(c)(5) should have applied in this case and the district court "should have ordered at-large elections for the entire state congressional delegation." Dissent slip. op. at 22.
Perhaps the most interesting part of this case is the precedent that is not cited: Bush v. Gore. In the Branch federal court action, the federal court put forward two reasons for implementing its plan. First, the court stated (and the Supreme Court has now agreed) that the state court plan could not be implemented without preclearance. As an alternative holding, the federal district court made an argument (much like the concurring opinion of Chief Justice Rehnquist in Bush v. Gore) that a state court has no authority to adopt a redistricting plan, because Article I, section 4 of the United States Constitution gives only the state legislature, not state courts, the power to redistrict. Because the Mississippi legislature had not given that power to the state court, the state court could not redistrict.
The Supreme Court unanimously declined to reach the alternative constitutional holding, declaring that the issue was unnecessary to the ruling. "The District Court's alternative holding is not to be regarded as supporting the injunction we have affirmed on the principal ground, or as binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery court."
So the Supreme Court put this genie back in the bottle for now. The question is how long it will stay there. The issue arose once after Bush v. Gore in the Torrecelli controversy, where it was claimed that the N.J. Supreme Court was changing the rules for replacing Senate candidates on the ballot without permission of the legislature. Expect the argument to be in the arsenal of election lawyers as they look for ways to challenge state court rulings governing federal elections.
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Fascinating Speculation on What is Holding Up the BCRA Opinion J.J. Gass of the Brennan Center passes on this transcript from Saturday's Weekend All Things Considered:
Weekend All Things Considered
National Public Radio
Saturday, March 29 2003
Copyright, National Public Radio
John Ydstie: With the war dominating the headlines, politicians don`t like to talk about it, but they can`t afford to stop raising campaign money, and they`re doing it this year under the provisions of the new McCain-Feingold campaign finance law. The law is only in place tentatively because many questions are being raised in the courts about its constitutionality. Indeed, within minutes of President Bush signing the act into law, its opponents filed a legal challenge. It was expected that by now, the case would be pending in the Supreme Court. It`s not. NPR`s Nina Totenberg is here to tell us why.
Nina, the law has a process for resolving these legal issues. What is it?
Nina Totenberg: Well, it`s an expedited process. It provides for a three-judge court composed of one appeals court judge and two district court judges to look at the law initially, and then it goes directly to the Supreme Court. Now this case was heard in early December--on, I think, the 3rd and 4th of December--and at that time, the chief judge of the three-judge panel, Judge Karen Henderson, who`s a court of appeals judge, indicated, volunteered in fact, that she expected a decision out of her court by the end of January. That obviously hasn`t happened. Now this is a very complicated case. Still, to have it almost April and unresolved is quite extraordinary.
Ydstie: Mm-hmm. And why haven`t we gotten a ruling?
Totenberg: Well, initially, there was a lot of thought that this is just a very hard case. There`s a record that`s more than 50,000 pages long, more than two dozen provisions, but as the months have dragged on, my sources tell me it`s become clear that part of the problem is, indeed, the collegiality, or lack of collegiality, between Judge Henderson, the court of appeals judge, and the two district court judges. Judge Henderson, I`m told, began drafting an opinion on her own before the case was argued, in fact before all the briefs were filed. And very important in these cases is what the lower court, that court, says is the statement of facts. That`s what the Supreme Court`s going to base its decision on factually.
Well, when the two district court judges got a look at her statement of facts, my sources say, they were appalled. And even though they are very different ideologically--one of them is relatively liberal, one of them relatively conservative--they began working together feverishly to try to make a statement of facts that they could agree on because they found Judge Henderson`s unacceptable and much of what Judge Henderson wrote unacceptable.
Relations between the district court judges and Judge Henderson are said to be pretty frosty at this point. The decision, when it comes out, I`m told will be almost a thousand pages long, when and if it comes out. And so we`re in a bit of a legal mess here with the Supreme Court waiting.
Ydstie: Mm-hmm. I don`t want you to reveal your sources, but I presume it`s not the judges that are talking about this.
Totenberg: No, let me make this very clear: None of the judges on this panel talked to me, but when there is this kind of holdup, there starts to be a leak in the normally sealed sieve at these courts. And I`ve talked to a lot of people about this who are very knowledgeable and I`m confident that this is a story at this point worth getting on the air.
Ydstie: Mm-hmm. And time is of the essence because people want to raise campaign money.
Totenberg: Political Washington is getting pretty desperate because they don`t know the rules of the game. Over at the Supreme Court, I think it`s fair to say there is apparently even some annoyance because the court`s coming to the end of the term. They`re going to have to schedule this late in the term. This is, as I said, an extremely complex case. There are at least suspicions that one or more justices might want to retire this summer. So this is getting ugly.
Ydstie: Thanks, Nina.
Totenberg: Thank you, John.
Ydstie: NPR`s Nina Totenberg.
Copyright, National Public Radio
I am not sure which is more astounding: the difficulties that the judges are allegedly having or the leaks to Nina Totenberg. I am also not relishing the thought of reading a 1,000 page ruling!
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Supreme Court Affirms in Branch v. Smith See this link. Off to a meeting. More later.
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Friday, March 28, 2003
Filibustering Judicial Nominees and the War Byron York has posted this piece at National Review Online. For the most part, York has done a good job stripping away the Democrats' procedural claim against Owen. (My prime area of disagreement with him is on the legitimacy of the Democrats' making an ideological decision to oppose Owen.) What is inexcusable about York's article, however, is his closing:
So look for another stalemate in the Senate. The Owen strategy, along with Estrada and recent votes on the budget and oil drilling in Alaska, show the Democrats feel perfectly comfortable in pushing the president around, war or no war. What remains to be seen is how hard the president will push back.
That statement, along with the title, "Another Democratic Filibuster? Democrats prepare to obstruct again — war or no war," is a cheap shot. It makes it sound as though the Democrats should give in to the President on the issue of judicial nominations in the name of patriotism. If the war demands Congress's full attention, so be it. Let the President temporarily withdraw judicial nominations (or controversial judicial nominations). But so long as the President sees fit to put forward and defend his judicial nominees while the troops are overseas, Senators should see fit to continue in their role of approving or disapproving nominations. Certainly if the Republican majority needs to move Estrada or Owen off the agenda for the war, they can do so. (Indeed, they have done it so that other appellate nominee's, like the Ninth Circuit's Jay Bybee, could be confirmed.) To think of the Senate Democrats "pushing the president around" by blocking some of the more controversial aspects of his agenda like massive tax cuts for the wealthy and drilling in Alaska is pure hyperbole. Does war now give the President a license to pursue his domestic agenda as well?
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More on Democratic Arguments to Filibuster Owen Following Howard Bashman's remarks summarized in my earlier post on Owen, Sam Heldman also raises the "unprecedented" nature of the renomination of Owen and Pickering as a reason for Democrats to filibuster. Here is an excerpt from his post:
I've got a fun challenge for everybody who has been complaining that Senate Democrats, in filibustering the Estrada nomination, are violating a long-standing traditional understanding as to how judicial nominations battles are supposed to be fought:
Can you point to any instance during our history as a nation -- prior to President Bush's dogged efforts to put Owen and Pickering on the appellate bench -- in which a Circuit Court nominee who was rejected by the Senate's duly constituted Judiciary Committee, has been re-nominated and given a second bite at the apple after the Senate's composition changed? Senator Leahy says he doesn't think there's any precedent for it. I asked the Senate's historical office, by email, and they said they didn't know of any precedent for such a play. Do any of you? Do you therefore withdraw your support for Owen and Pickering, if you were supporting them?
I don't think that Bashman or Heldman are necessarily endorsing this Democratic argument, and on the merits I find the argument particularly weak. The Republicans have taken majority control of the Senate. If that does not entitle them to revisit and seek to reverse the prior decisions of the former Democratic majority, I don't know what does.
An honest defense of an Owen filibuster would acknowledge that it is a decision made based upon the nominee's ideology. This is not something that Democrats should be ashamed of, given the role that ideology plays in important judicial decisionmaking.
Nor should Democrats give in on claims that the filibuster is somehow illegitimate. The central purpose of the filibuster, as I see it, is to ensure that a sizeable and cohesive minority with intense feelings on a legislative matter can block the legislation. If the minority is too small or does not feel intensely enough about an issue to withstand political heat, the filibuster fails. That is a defensible way to protect minority interests.
I think the argument is more complicated when applied to the Senate, an institution that overrepresents small states to the exclusion of large ones. Thus, when Senators from large states filibuster (as has happened with Estrada and may happen with Owen), I think the filibuster is especially defensible; in contrast, when the 41+ Senators in the minority come mostly from small states, I have a more significant problem with the filibuster.
UPDATE: Sam Heldman has responded here. I think we are on the same wave length on this issue.
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Is the Supreme Court Puzzled, or Even Annoyed, By the District Court's Delay in the McCain-Feingold case? Thus concludes Nina Totenberg of NPR in this audio report. Thanks to the weekly briefing of the Campaign and Media Legal Center for the pointer. (Disclosure: I sit on CAMLC's advisory board.)
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Not That McCain In my obsessive checking of the District Court's website waiting for the BCRA case to issue, I noticed that the court just posted an opinion relating to a party named "McCain." Of course, it was not John McCain, and John McCain's name is not in the title of the caption of the case. (It is "McConnell v. FEC.") Oh well. We have now watched the end of January, end of Feburary and soon the end of March come and go without an opinion from the district court. One wonders if the court will have some explanation for the delay when the opinion issues. Perhaps it will be obvious from the nature of the opinion(s).
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More concerns over DRE (compter based) voting machines See this Washington Post article.
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Thursday, March 27, 2003
Should Democrats Filibuster Owen? Neil Lewis reports in this article on the New York Times web page that Democrats are considering whether to filibuster the nomination of Judge Priscilla Owen to the Fifth Circuit. This raises some interesting contrasts with the Estrada nomination. With Estrada, Democrats can plausibly make the claim (a claim I don't believe) that they don't have enough information about him to make a decision on whether he should be confirmed. With Owen, who has a record as a judge in Texas, the claim is not plausible. Thus, Democrats would need to make the explicit ideological argument. Some Democrats may be reluctant to do so.
But here is a reason to think they might, even if they don't want to explicitly say they are applying an ideological test: if they fail to filibuster Owen, they will open themselves up further to the charge that they are filibustering Estrada because he is Hispanic. I think that charge is ridiculous, but it would gain more currency if a similarly "conservative" nominee who is white is not blocked. Of course, a rational reason the Democrats who apply ideological tests may wish to block Estrada and not Owen is that blocking Estrada now prevents his nomination to the Supreme Court (on grounds Democrats can argue that he lacks judicial experience), whereas blocking Owen would not provide that advantage. But that is a hard argument to make to the public.
UPDATE: Thanks to Howard Bashman of How Appealing fame for noting an error (now corrected above) in my spelling of Judge Owen's name. He also notes that Democrats may craft an additional argument based upon the committee's initial rejection of the candidate. They could argue that there is no reason to reconsider that rejection now that the Senate has changed hands.
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Eighth Circuit declines to decide campaign finance issues related to express advocacy/issue advocacy distinction The court in National Right to Life Political Action Committee v. Connor upheld a requirement that a campaign treasurer be a state resident, but held that the challenges to Missouri law regulating the line between express advocacy and issue advocacy was non-justiciable in this particular case. Circuit Judge Beam dropped an interesting footnote at the end of the opinion, however, which reads:
12 The author of this opinion shares the several concerns of NRLPAC and NRLC about the Missouri election laws at issue and might, in a proper case, find at least some of them to be unconstitutional.
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Bilingual Ballots and the Voting Rights Act See the A.P. report here. See DOJ information here.
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Lt. Governor's Bid in Kentucky Blocked by Judge on Residency Grounds See this A.P. Report.
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Wednesday, March 26, 2003
Roll Call article on FEC v. Beaumont is available at this link.
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More articles on oral argument in FEC v. Beaumont The New York Times article is here. The law.com article is here. In this article, Tony Mauro again makes the following statement regarding the BCRA litigation: "Informally, however, the Supreme Court has indicated it could hold special oral arguments in the case in May or later, and issue its ruling during the summer."
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Tuesday, March 25, 2003
Downward Spiral or Roller Coaster? In his latest response in our ongoing debate here, Larry Solum takes issue with my claim that things have not gotten appreciably worse under the Democratic intransigence compared to Republican intransigence in the past over judicial nominations. Larry takes the long view:
It is, I think, indisputable that the judicial selection process is more politicized today than 10 years ago, 25 years ago, 50 years ago.
Let me dispute the indisputable, just a bit, going back in time 49 years, to the appointment of Earl Warren. President Eisenhower appointed Warren as the new chief justice while Congress was not in session. He apparently used a recess appointment not to get around an intransigent Senate, but simply to get Warren in place as soon as possible. When the Senate came back into session, the confirmation hearings began. Here is what Jack Harrison Pollack writes in the book, Earl Warren: The Judge Who Changed America 179-80 (1979):
On January 12, 1954, the President routinely sent the Warren nomination, along with more than a hundred lesser appointments to the Senate. He had not anticipated the antagonism of the new chair of the Senate Judiciary Committee, Republican William 'Wild Bill' Langer of North Dakota. Although Langer had nothing against Warren personally, he was disgruntled because he believed that the Eisenhower Administration was not giving his state sufficient patronage in the federal appointments of judges, postmasters, and the like. the Warren appointment, he decided, was to be his bargaining weapon.
In opposing the Warren appointment, Langer was aided by Mississippi Senator James Eastland, who now feared that the Californian might vote to end segregation in Southern schools. Eastland's fears had been aroused by Warren's first major speech as Chief Justice in February at the Columbia University bicentenary, where he had lambasted McCarthyism and defended 'dissent and free inquiry.'
Chairman Langer scheduled Senate subcommittee hearings. nominee Warren declined an invitation to appear. The American Bar Association and California State Bar, among others, endorsed his appointment. But more than 200 objections were filed. Spokesmen for such groups as the American Anti-Communist League, Christian National Crusade and American Rally testified against Warren. Charges were made that he had a '100 percent record of following the Marxist line,' had 'permitted organized crime' to flourish in California, had 'wilfully protected corruption' there, had 'knowingly appointed dishonest judges,' and had been 'under the domination' of California liquor lobbyist Artie Samish.
Caught off guard, the infuriated Eisenhower suddenly became an impassioned Warren partisan. 'Earl Warren is one of the finest public servants this country has ever produced,' he announced. 'If the Republicans as a body should try to repudiate him, I shall leave the Republican party...' Other party big--guns were quickly mobilized against Langer's maneuver. The accusations were 'completely fantastic and untrue,' claimed Vice President Nixon...
Admittedly this is just one data point, but it does suggest some pre-Bork politicization of the nomination process. Things tend to ebb and flow. Bork has trouble (that was 1987, more than 15 years ago), but Scalia does not. I would need to see much more evidence before I conclude that the problem has gotten much worse. If anything, bringing out ideological litmus tests in the open allows for a more honest debate about how should be confirmed to the Supreme Court. I am, however, concerned that the rhetoric of escalation will (futher) drive virtuous judges from even entering the confirmation process.
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FEC v. Beaumont oral argument Sam Heldman's prediction looks more accurate than mine. See this A.P. report.
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Article on BCRA Delay Raises Question of Strategic Reasons for Delay From an article in yesterday's Congress Daily:
So why are Henderson and her fellow panelists, U.S. District Judges Richard Leon and Colleen Kollar-Kotelly, taking so long? Conspiracy theories abound. If the case is pushed into the next term, the buzz goes, the makeup of the Supreme Court may change. Retirement speculation centers on Chief Justice Rehnquist and Justice Sandra Day O'Connor, two justices inclined to vote favorably on political money regulations.
If Rehnquist and O'Connor were to be replaced by two more conservative justices, the court may be less likely to uphold the BCRA, which bans soft money and places limits on political advertising at election time. Since two of the three judges on the special panel are Republican appointees, there's talk that they wouldn't mind seeing the case spill into the high court's next term.
Tempting as such speculation may be, most reputable political money experts don't want to go there. "It is clear that those kinds of speculations are, in effect, speculations that judges are not behaving properly," said Michael Malbin, executive director of the Campaign Finance Institute. "And I won't make that assumption." It's more likely, Malbin added, that the three-judge panel is simply finding the case more complicated than they expected.
Thomas Mann, senior fellow at The Brookings Institution, concurred. "It's very complicated law, and there's a huge, huge record for the court to absorb," Mann said. He acknowledged, however, that if Rehnquist, O'Connor or both were replaced before a ruling "it could well have a direct and fateful impact on the decision."
I have raised these potential consequences of delay here on February 6. You can access the Congress Daily article here at the bottom of a Democracy 21 press release.
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Monday, March 24, 2003
Shays, Meehan Respond to Cleta Mitchell editorial in Roll Call See the response here. I commented on the Mitchell editorial here.
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Internet voting and hacking See this story from the University of Alabama's student newspaper, The Crimson White. Thanks to Mike Alvarez and Thad Hall for the pointer.
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Solum on Downward Spirals Larry replies in our latest debate here. Look for a reply soon.
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The partisan consequences of the BCRA A source with close ties to the Democratic party tells me that the recent reporting on the Republican advantages in fundraising following passage of McCain-Feingold "captures only a fraction of the dismal truth." Democratic fundraising in in serious disarray. So it may be hard to explain why Democrats in Congress supported the law (though easier to explain why Republicans have not sought a stay of the law pending the outcome of the current litigation). My source opines that the Democrats are more influenced by the opinions of those such as the New York Times than the Democrats' traditional constituencies such as the labor unions. Interesting food for thought.
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Cert denied in Arizona public financing case J.J. Gass reports on the election law listserv:
The Supreme Court today denied certiorari in May v. Brewer, the case in which the Arizona Supreme Court had upheld the constitutionality of the state's public financing system. The challenger argued that by funding the system in part with a surcharge on fines and penalties (in the challenger's case, a $2.70 surcharge on a parking ticket), the state was compelling those subject to the surcharge to support speech with which they disagreed.
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FEC v. Beaumont The Supreme Court is hearing oral arguments tomorrow in a case raising the question whether it is constitutional to prevent ideological corporations (that is ideological organizations that use the corporate form) from making direct campaign contributions to candidates for federal office. Sam Heldman makes the following prediction:
If you want real erudite analysis, ask somebody like Ed Still or Rick Hasen. I'll just give you the short version. There is a unanimous decision from 1982 that wasn't really about this precise same question, but that includes some strong language saying (maybe even definitively holding, depending on how you look at it) that this across-the-board ban on corporate campaign contributions is perfectly consistent with the First Amendment. That's National Right to Work Committee. The only Justices still remaining from that Court are Rehnquist, Stevens, and O'Connor. Then, in 1986, a fractured court – over the dissent of four Justices, including Rehnquist and Stevens – held that a political-advocacy corporation did have the First Amendment right to make direct expenditures, as distinct from campaign contributions. That's Mass Citizens for Life.
So my bet is that, based if nothing else on the value of adhering to precedent (in this case, the precedent being Right to Work Committee), the Court will REVERSE the Fourth Circuit. I count on Justices Rehnquist, Stevens and O'Connor, based on their previous votes. I bet dollars to donuts that Justice Breyer will join them. And I feel pretty comfortable that either Justice Kennedy or Justice Souter, or both, will do so as well.
Thanks for the mention, Sam. My prediction is a bit different. The Court, led by Chief Justice Rehnquist, has been very willing to uphold any laws limiting corporate participation in the process of electing federal candidates. (This issue is different in ballot measure campaigns, see Bellotti, where there is no candidate who may be corrupted). That line got a bit fractured in MCFL, where the Court recognized an exception for ideological corporations making campaign expenditures, and further fractured in Austin v. Michigan Chamber of Commerce, where Justices Kennedy, O'Connor, and Scalia dissented vigorously from a holding allowing Michigan to ban corporate expenditures in state campaigns.
My guess is that the only safe votes to uphold this law here are Rehnquist and Stevens. You have a few Justices that are hesitant about any campaign finance regulation (Scalia, Thomas, and Kennedy) and some that may find the ideological exception appealing (remember, it was Brennan who wrote MCFL). O'Connor has grown more skeptical. The question is whether Breyer, Ginsburg and Souter will see this as a case involving campaign contributions by corporations (in which case the law likely would be upheld) or a special case involving the ideological exception recognized in MCFL.
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General Franco is still dead BNA reports: "A court spokesman said March 21 that there continues to be no word on when the lower court will render its decision in the McConnell case and clear it for a highly anticipated review by the Supreme Court."
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Death of effort to get nonpartisan primary in California? Political columnist George Skelton reports in this Los Angeles Times column that business interests that had been supporting the move toward a nonpartisan primary to produce more moderate Republican candidates have been pressured by Republicans in the California legislature to give up the effort.
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Another story on BCRA decision delay See this Washington Post story.
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Friday, March 21, 2003
Are we in a "Downward Spiral" on Judicial Nominations? Larry Solum says yes here. In response to my comments that Democratic filibuster tactics are tit-for-tat for earlier Republican opportunities, Larry argues:
Both Democrats and Republicans perceive that their own moves are tit for tat, but that the moves of the other side are escalation. In other words, we face a problem of asymmetrical perceptions. This is one of the important preconditions for a downward spiral. If each side perceives that the other sides moves are escalatory, then each side sees escalation on their own part as the rational move. Hence, the Republican discussion of "going nuclear"--see Rick's original discussion and then scroll up in his blog for further posts. If I am right about the downward spiral, the consequences can be profound. The end-point of politicization is very grim indeed--with judges openly battling for political agendas, ordinary tort and contract cases turning into the opportunity for the distribution of pork, and the political branches retaliating against the judiciary when there are differences in party control. We don't want to go there.
I think it is important to separate out stated motives and actual motives. Just as I don't believe Democrats who say they oppose Estrada because they don't have enough information, I don't believe Republicans who say that Democrats' moves are escalatory. They both make these claims for the same reason: trying to obtain political advantage. Thus, Democrats can avoid responding to charges that they are imposing ideological litmus tests (they are, just as Republicans are---I am reminded of Sen. Helms blocking all Democrats to the 4th Circuit on grounds that the court did not need any more judges to handle its caseload), and Republicans can claim that Democrats are taking "unprecedented" action against a nominee. What is escalating now is primarily the rhetoric, though I agree that rhetoric alone may cause an escalation.
I also think Larry's parade of horribles is a bit too horrible. We are talking about politicization on the few (but important) ideological issues that matter most to the parties---abortion, affirmative action, etc. In most cases heard by most federal judges, I continue to believe that ideology has little or nothing to do with the decisions they render. In that context, they are the virtuous judges that Larry writes about so eloquently.
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Republican advantage so far under BCRA See this Washington Post story.
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More precedent for blocking an entire slate of nominees A reader writes:
I checked my recollection on Lexis, and it was Sen. Conrad Burns of Montana who put holds on all 9th Cir. nominations from some time in 1995 until early in 1996--I couldn't find the exact dates--to try to force a vote on his bill to split the circuit. It turns out that this was a favored tactic of Burns in the Clinton years. He put holds on Joel Klein's appointment to head the Antitrust Division as well as on a number of less prominent Executive Branch appointments in order to get leverage on various legislative issues.
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Thursday, March 20, 2003
New article on 501(c)(3)s and elections Steven H. Sholk published "Election Year Activities of Section 501(c)(3) Organizations," a comprehensive guide to the rules under the Federal Election Campaign Act and the Internal Revenue Code, in Tax Notes Today (electronic version) on February 13, 2003. It is summarized in the March 2003 issue of The Exempt Organization Tax Review on pages 317 and 430. It is available on Lexis, and from Tax Analysts as Doc 2003-3855; 2003 TNT 30-31.
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Filibusters continued Larry Solum at this post links to a National Review Online article mentioning that the two Democratic senators from Michigan are "blue slipping" all nominees from Michigan for the Sixth Circuit. Larry calls this part of a downward spiral, but it seems more to me like simple tit-for-tat, and not necessarily escalation. The NRO article notes:
The Levin/Stabenow maneuver is the culmination of a conflict that has been years in the making and involves Democratic accusations that Republicans mistreated appeals court nominees selected by President Clinton.
When President Bush took office, Levin and Stabenow demanded that he renominate two Clinton appeals court nominees from Michigan, Helene White and Kathleen McCree Lewis, whose nominations had not been acted on by the GOP-controlled Senate. White is married to Sen. Levin's cousin.
In a letter sent yesterday to White House counsel Alberto Gonzales, Levin, and Stabenow wrote, "On more than one occasion, the White House counsel has stated that some nominees during the previous administration were wrongly treated....We have said repeatedly that it would be wrong for the president to seek confirmation of his nominees to the Michigan seats on the Sixth Circuit before the acknowledged wrong was corrected."
The White House has refused the demand, saying that it would be an unprecedented surrender of the president's constitutional authority to nominate federal judges.
A source from the Senate also takes issue with my claim that Estrada is not a national issue. The source points to numerous editorials about the Estrada controversy, and their lopsided position favoring an end to the filibuster. To me, editorial page opinion does not reflect national passion about an issue. Editorial page writers loved to write about campaign finance reform, even though the issue was of low salience to most Americans. The source also suggest some internal polling supports the position that voters care about the issue, but this claim is hard to evaluate in the absence of the polling data.
UPDATE: Larry Solum says here that "it is at least unusual to use the blue-slip procedure to block all Presidential nominees from an opposition party state." Not so. Senator Helms blocked EVERY 4th Circuit nominee from North Carolina during the Clinton administration.
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On Recess Appointments to the Supreme Court A reader points out that recess appointments to the Supreme Court have some precedent. He's right. Here's a brief description of the history from Gary J. Edles, Temporary Judges; Recent Experience from the United States and Great Britain, Federal Lawyer, July 2001:
[Three prior articles point out that more than 300 federal judges have received this form of temporary appointment during the nation's history. Fifteen of these appointments have been to the U.S. Supreme Court. George Washington made six recess appointments, including Chief Justice Rutledge, who sat for six months and participated in the decisions in two cases before the Senate rejected his nomination. One article notes that recess judicial appointments were common during the early days of the republic and "[a]t no time during this early period did opposition ... [to] the practice make its way into the public record, either in Congress or the courts." Chief Justice Warren and Justice Brennan were more recent recess appointees to the Supreme Court. In fact, Chief Justice Warren heard oral arguments in Brown v. Board of Education while awaiting Senate confirmation and, following his confirmation, went on to write the Court's unanimous opinion in the case. However, two recess appointees to the Fifth Circuit decided not to sit on controversial civil rights cases during the 1960s until the Senate confirmed them.
Most recess appointees ultimately received Senate confirmation. But many were controversial. Harvard professor Henry Hart argued that Chief Justice Warren's recess appointment would "violate the spirit of the Constitution, and possibly also its letter."
This history convinces me even more of the possibility of a Bush recess appointment to the Supreme Court this summer.
By the way, the three articles Edles cites with more extended discussion are: Paul Ferris Solomon, Answering the Unasked Question: Can Recess Appointees Constitutionally Exercise the Judicial Power of the United States? 54 U. CIN. L. REV. 631, 632 (1985); Virginia L. Richards, Temporary Appointments to the Federal Judiciary: Article II Judges? 60 N.Y.U.L. Rev. 702 (1985); Thomas A. Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 COLUM. L. REV. 1758 (1984).
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FEC Criticism of BCRA court timing According to this A.P. article, FEC chair Ellen Weintraub and Vice-Chair Brad Smith have called on the three-judge court hearing the case to decide it as soon as possible. Who would have thought bombs would fall on Baghdad before the lower court would have issued its opinion in this case?
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Responses to My Post on Going "Nuclear" on Estrada I have received some interesting comments about my post (that appears immediately below) and the earlier linked post regarding Kondracke's comments.
One reader writes:
A recess appointment of Estrada would hardly be a "nuclear" option. While filibusters of judicial nominees are exceedingly rare, recess appointments of judges are historically rather common. A recess appointment here would make excellent sense - the Dems' nominal reason for filibustering Estrada is that he doesn't have a "track" record - that argument would hardly make sense after he's been on the bench even a few months and had written a few opinions. And it is exceedingly unlikely that the Dems would be able to portray Estrada as some kind of extreme right-wing monster on the basis of a few months worth of opinions, which is what they would have to do in order to keep the Southern Democrats (Landrieu, Edwards, Graham) on the plantation. Net result - Estrada's nomination would pick up enough votes to sail through.
I think the "nuclear" option is most likely to keep the Senate in session 24/7 and force the Dems to talk non-stop, rather than letting them get away with this filibuster light schedule. The Dems may be uncomfortable doing this as the war in Iraq gets underway.
I think that this reader is correct about recess appointments. We have seen recess appointments to the courts before, most recently by President Clinton. What would be unprecedented and ratchet things up even more would be a Bush recess appointment to the Supreme Court. I also agree with the reader that a recess appointment of Estrada now would make it easier to appoint him to the Supreme Court later, by removing the argument (which I think is spurious anyway) that Democratic senators don't have enough information about Estrada to make a decision about him. That would require enough Democrats to argue that Estrada is ideologically too extreme, and that a brief stint on the D.C. Circuit doesn't show much about how Estrada would act as a Supreme Court Justice.
If all Lott meant by his comment was a 24/7 filibuster, that's not news. Lott said months ago that he would have done that had he remained majority leader. That does not seem "nuclear" to me. That leaves the possibility of changing the filibuster rules, a risky strategy for all involved.
Another reader argues that I am wrong in saying that "Democratic actions were hardly unprecedented." This reader says that "as a matter of history the important test is of course whether a supermajority of Senators has ever been required for confirmation, as is the case here – not whether a member of the majority party could have 'blue-slipped' a nominee."
I treat the two situations as identical, because the only way to get around a blue slip is with a supermajority vote. To claim otherwise makes a distinction without a difference. One need look no further than Senator Helms' blocking of any Clinton nominee to the 4th Circuit to prove my point. Of course, there are many other examples of blue slips or silent filibusters accomplishing precisely what the Democrats are doing now. Republicans are smart to require an actual filibuster to increase the salience of the issue. Has it worked? Certainly the issue has fired up editorial page writers, those in the Beltway, and the many thoughtful readers of How Appealing. But it has not become a national issue. Things will be different if there is a filibuster of a Supreme Court nominee.
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Wednesday, March 19, 2003
Going "Nuclear" on Estrada nomination The Republicans have accused the Democrats of "going nuclear" on the Estrada nomination by filibustering it. As I argued in this post, Democratic actions were hardly unprecedented. (I also claimed the rhetoric used (Kondracke called the filibuster the Democrats' "dirty bomb") sought to subtly equate Democrats with terrorists.)
Now comes word via this Washington Times article that Republicans are considering their own "nuclear option:"
[Lott] said he had thought of a strategy that could put Mr. Estrada up for a confirmation vote needing only 51 votes as opposed to the 60 now required to invoke cloture. He declined to elaborate, warning that his idea is "nuclear."
Sen. Rick Santorum, Pennsylvania Republican and party conference chairman, said for now Republicans are content holding occasional cloture votes to portray Democrats as obstructionists. No date is set for the next cloture vote.
After Easter, he said, party leaders would roll out a new strategy that would place greater pressure on Democrats, but declined to say what the new strategy would entail.
So what could the "nuclear" strategy be? Two possibilities spring to mind.
(1) The Senate Republicans could declare that the filibuster rules are no longer in effect. How could they do so? Wouldn't that rule change be subject to a filibuster itself? Not if the 51 Republicans declare that the rules enacted by prior Senate bodies do not bind the current Senate. Such a move might lead to a lawsuit by Senate Democrats, but that is the kind of question that should be viewed by the courts as none of the courts' business, a "political question." The Supreme Court majority likely would agree, especially given that the rule favors the Republicans.
(2) 51 Senators could urge Estrada be given a recess appointment, which would begin when the Senate is in recess and end when the current session of this Senate ends before the 2004 elections. Estrada could then be brought up later. Don't write off this possibility being used this summer if Bush cannot get a Supreme Court nominee through the filibuster process.
Are either of these realistic possibilities? I believe they are, but both present dangers for Senate Republicans. The first strategy is dangerous if Republican senators believe that in the near to mid-term they might be in the minority in the Senate. Given the razor-thin Republican majority, it is hard to imagine much confidence in the future (maybe that changes with Iraq). Will the Republicans really want to take the chance that in the near future they lose the ability to filibuster a Democratically controlled Senate?
The other possibility, recess appointment, risks making the Senate a less important institution. This is one place where the interests of the administration and the interests of the Republicans in the Senate may differ. Indeed, President Bush does not need 51 votes to make the recess appointment. Using such an appointment for the Supreme Court, if that comes later this summer, would be a large escalation of an already out of control political confirmation process.
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Washington Post Weighs in on Delay in BCRA Ruling See the editorial here. The editorial leaves out a very salient fact: the delay may mean that the case will be decided differently, assuming we have a change in Supreme Court Justices. I have made this argument in detail here.
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A "Wonderful Feeling" on Bush v. Gore Justice Scalia, speaking today in Cleveland, said in response to a student's question that "it was 'a wonderful feeling' to have led the Supreme Court's rejection of a recount of the Florida vote, thus handing the election to Bush." You can read the longer account of his talk--and his exclusion of C-SPAN from broadcasting it--in the Cleveland Plain Dealer at this link.
UPDATE: Richard Winger informs me that the Scalia comment was made yesterday at a speech at John Carroll University, not at the Cleveland City Club.
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Tuesday, March 18, 2003
More on how BCRA is Changing Fundraising The Washington Post offers this report.
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Monday, March 17, 2003
Interesting Poll of Political Consultants and their Views of the BCRA American University conducted a poll of political consultants on a variety of topics. According to the poll's executive summary, here is what the consultants had to say about the BCRA:
A substantial number of consultants believe the BCRA will expand the role of the parties at the state level –at the expense of their role at the national level.
Many consultants feel that the ban on soft money will force funding away from the national parties and into state campaigns.
Consultants also see more political power being given to special interest groups and independent expenditures due to tough restrictions on the national level –which means less power for the political parties.
Some consultants expect the helpfulness of services which can beprovided by third party organizations to be adversely affected by the BCRA.
Party services which can be easily displaced by independent expenditures, such as campaign funding and coordinated advertisements, are expected to be adversely affected by the BCRA.
Consultants are split as to whether key party services, such as Get Out the Vote operations and opposition research, would be affected one way or the other
A number of consultants feel the BCRA ban on soft money will have a negative impact on campaigns in the 2004 election cycle.
Consultants predict an increase of third party campaigns –decreasing the importance of parties –and other negative consequences.
Many consultants also feel the BCRA will have little effect as parties discover new methods of fundraising and loopholes in the law.
Some consultants believe the BCRA restrictions on issue ads will have a positive effect on campaigns as a result of less negative campaigning.
However, others think the prohibition on issue ads will increase third party campaigns, moving money away from parties, as well as shifting methods of campaigning away from media advertising.
Another one in three consultants do not think these restrictions will have any effect or do not expect the ban to be upheld by the Supreme Court.
You can access the entire report here.
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A.P. Report on Native Americans and campaign finance law See the article, "Tribes Enjoy Advantage Over Gaming Donors," here.
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Marston on judicial selection debate Brett Marston has some interesting observations about the debate on judicial selection I've been having with Larry Solum. The link to the particular post is not working, but this is a link to Marsontalia. He generally agrees with my view of the intractability of the judicial selection process. He then makes these observations:
By academic training as well as sentiment I find Rick Hasen's argument more persuasive, at least to the extent that he argues that the political nature of Supreme Court judging cannot be denied, and any change to the nominations process should take that into account. This is basically Chuck Schumer's position as well. Is it surprising that a Senate Democrat is pushing the "Court is political" argument? Not really.
Hasen bases his case on his recent work on election law. Hasen also makes a recommendation to the judiciary that they should refrain from creating new, controversial equality rights and should instead leave that area of policy to the legislature. If your goal is to reduce the partisanship in the nominating process, this strategy probably would only produce minimal gains, though. And still the dilemma exists: do we really want to rely on legislatures to refrain from punishing gays and lesbians through sodomy laws? You can redefine the issue as one of privacy and avoid the "new equality right" problem, but that's a sleight of hand, really.
My goal (in proposing my brand of judicial minimalism) is not primarily to reduce partisanship in the nominating process; rather, it is to provide some constraint to both liberal and conservative judicial activists on the Supreme Court. As for the sodomy issue, my work does not address it directly, as I deal with core and contested rights directly in the electoral process. The sodomy question would be what the core and contested principles of privacy (or sexual privacy) would and should be---a difficult question well beyond my area of expertise. I don't think it is a slight of hand to give this answer. The question of what privacy rights the Court should recognize is different from the question of how much the Court should structure the workings of our political system.
UPDATE: Larry Solum responds to Marston here.
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Saturday, March 15, 2003
Federal Funds Help States Aid Election Reform So says this report in the Washington Post.
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Friday, March 14, 2003
Early Primary Season and the Democrats Today's lead editorial in the New York Times complains that the new Democratic rules for presidential primaries will create chaos---as states move their primaries earlier and earlier, "the result will look more like a Marx Brothers movie, a jammed stateroom of stock characters, mugging in a frenzy of slapstick democracy." The editorial makes a good point. The argument is something like a classic collective action problem. Each state's Democratic party wants more influence over the nominee, yet when everyone goes earlier, the result is a bad process that leads to a worse nominee with a lessened chance to beat the Republican.
The dilemma would be easier to understand if there were not a centralized body that could require states to adhere to a rational schedule. But there is---the Democratic National Committee. So why did the national committee move to this model rather than the more rational (from the Democrats' view) rotational system proposed in the Times editorial? Perhaps there is something in the structure of the DNC's decisionmaking that led to this breakdown.
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Thursday, March 13, 2003
First Leahy, then Will, Now Hatch Accused of Hypocrisy on Filibuster Issue My earlier posts have chronicled charges that Senator Leahy and columnist George Will have both changed their positions on the filibuster depending upon whether Democrats or Republicans can use the weapon. Now a detailed set of charges has been made here against Senator Hatch by People for the American Way.
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New Article about African-American public opinion on Majority-Minority districts Katherine Tate has published "Black Opinion on the Legitimacy of Racial Redistricting and Majority-Minority Districts," in Vol. 97, No. 1 (Feb. 2003) of the American Political Science Review, pp. 45-56. Here is the abstract:
Minority–majority districts are highly controversial. To assess the degree to which black positions on this controversial matter were well-thought-out and fixed, questions based on Sniderman and Piazza's (1993) “counterargument” technique were included in the 1996 National Black Election Study. Black opinion instability on the issue of race and redistricting reveals the complexity of mass attitudes and the reasoning process and reflects the manner in which a set of clashing interests and core values is balanced and prioritized. Although a large majority of blacks voiced initial opposition to creating districts where blacks and Hispanics are the voting majority, most blacks changed their position in response to the counterargument. This asymmetry suggests that blacks more strongly favor the goal of increasing minority representation than the principle of color blindness in Congressional redistricting. Education and racial identification are key predictors of black opinion on racial redistricting. Less educated blacks and weak racial identifiers were less supportive of minority-majority districts and racial redistricting practices. These results support the revisionist perspective among public opinion scholars that rational, thinking individuals can hold wavering opinions upon questioning because they generally encapsulate a set of contradictory values and interests.
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Finishing Up Debate with Solum on Judging and the Confirmation Process Larry Solum filed his latest (and perhaps last) response here. I had better be careful what I write: my last post generated four very long responses from Larry, that you can follow back on his Legal Theory blog if you like.
Larry's bottom line is "convergence;" namely, that at least in the short run, his "neoformalist" view of judging cannot be put in place and we would do well to implement more minimalist judging along the lines I proposed earlier---with Supreme Court justices, at least in the election law cases, following social consensus on the meaning of equality much of the time, and deferring to political branches elsewhere.
Larry focuses his post on ways to depoliticize the judicial confirmation process. I much much less sanguine than he is that we can do so in the current partisan atmosphere. For example, I reject the idea that Republicans and Democrats can choose credible third parties to evaluate judicial nominees using non-partisan "neutral" criteria. Assuming we can't, there is of course a vicious cycle where judges chosen in political confirmation processes tend to be more politicized upon taking office.
I therefore focus my energy on depoliticizing the judges once they are in---what arguments can be made that it is rational for judges to pull back from the brink? Larry ends with asking me whether I would accept his neoformalism as a long run solution. I'll punt on this one. Keynes said that in the long run we are all dead, and I wonder if Larry or I will live long enough to see the minimalist, less politicized judiciary in place that would be a precursor to grander models of jurisprudence.
Thanks to Larry for a very enlightening (at least to me!) debate. One of the main lessons I draw from it is that calls by politicians to confirm judges and move beyond politics are likely to fail, and, more cynically, may be just another attempt to gain political advantage.
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Wednesday, March 12, 2003
More speculation on BCRA timing and potential for stay FOX News offers this report.
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Democracy is just too expensive Consider this A.P. story on how Republicans in five states are looking to scrap presidential primaries.
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Tuesday, March 11, 2003
BCRA and solitication of funds by federal candidates in local campaigns Ed Still on his Votelaw blog reports:
Several Virginia state and local officeholders who will be up for election this year have asked the FEC for an advisory opinion on the amount and kind of involvement federal officeholders can have in their campaigns.
The advisory opinion request is here. This is one to watch.
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President's Letter on ending filibusters In this letter, President Bush wants the Senate to change Senate rules so that judicial nominees would get a straight up or down vote, regardless of who is president and which party is in power. Of course, changing the rules now benefits the president and his party. So, assuming Senators think this is a good idea (I'm not so sure it is on the merits), to avoid the windfall to Bush now, why not have the Senate adopt the rules, effective after the next presidential election?
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BCRA debate See this report from the Desert Sun.
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The latest guessing on the BCRA case timing Tony Mauro reports the following in the article The High Court's Incredible Shrinking Docket:
The wild card for the Court's docket may be the set of cases testing the constitutionality of the Bipartisan Campaign Reform Act, still pending before a three-judge panel in U.S. District Court for the District of Columbia. Lawyers had advised the panel that it would have to rule by mid-February to guarantee that it would be reviewed by the Supreme Court this term. February has come and gone, and there is no decision yet.
But the general feeling is that the Supreme Court will do whatever it can -- including keeping its session open through the summer -- to get the issues resolved well in advance of next year's presidential election. Even if an appeal of whatever the panel decides is heard orally in May or June, the Court could issue a ruling during the summer. In recent years, it has issued certiorari grants through the summer, so a decision is not inconceivable.
Thanks to Mark Glaze for the pointer.
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Monday, March 10, 2003
Compton election contest decision Last year, the election law world was buzzing with news that a trial court in California had reversed the mayoral and city council elections in Compton California based upon the theory of social scientist Jon Krosnick that the election results were skewed because of the "primacy effect:" the tendency of voters to vote for the candidate first on the ballot. (I have some issues with Krosnick's social science, but that's for another time.) What was so unprecedented was that on the basis of this effect, the court did not simply order a new election, but instead made the losers of the elections into the winners. The Court of Appeal quickly stayed the trial court ruling, and today it issued its opinion on the merits.
As to the mayoral race (which got the most attention), the court did not reach the ballot order issue. The court simply held that there was no error in the ballot order used. (Interestingly, the court held it is not an equal protection violation to use a randomized ballot---so assuming Krosnick's theory is correct it is ok to use a lottery to give one candidate an advantage over another.) But as to one of the city council candidates, the court confirmed what I have long argued (beginning when I had consulted for the city of Compton): that a court cannot shift votes from one candidate to another based on the ballot order effect. Here's the most relevant language from the opinion:
In this case, the trial court found a total of 144 illegal votes had been cast in the runoff election, but found it impossible to determine in whose favor (other than the nine illegal votes for Irving) the illegal votes had been cast. Even if we were to assume that all 144 illegal votes had been cast for Irving, subtracting 144 illegal votes from Irving’s total would still have left her the victor with 5,270 egal votes to Andrew’s 4,863 legal votes. Therefore, the illegal votes cast for Irving did not change the result of the election, and there was no other candidate with more legal votes than Irving. Given Irving’s disqualification from taking office due to her offenses against the elective franchise, the trial court should have entered a judgment “annulling and setting aside the election.”
(§ 16603, italics added.)
Instead, in a ruling unprecedented, to our knowledge, in this country, the trial court shifted 295 legal votes from Irving to Andrews based solely on the 3.32% primacy effect assumed to be enjoyed, on average, by those listed first on the ballot. While many courts and legislatures have recognized the advantage afforded to candidates whose names are listed first on the ballot, no judicial or statutory authority exists to reverse the given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.”
Election results may only be challenged on one of the grounds specified in section 16100. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192.) Name-order error occurring in the absence of fraud and resulting purely from unintentional clerical error, as in this case, is not a valid ground for an election contest under section 16100. The fact that 295 legal votes may have been cast for Irving solely because her name was erroneously listed first on the ballot does not, in itself, impeach the integrity of those 295 votes. Legal votes randomly cast by the least informed or least interested voters are entitled to the same weight as legal votes cast by the most highly educated and informed voters in our society. The legality or illegality of a vote cast by a qualified voter in a lawful manner does not depend upon the voter’s motive or purpose in voting a certain way. (See Bush v. Head (1908) 154 Cal. 277, 281-82.) To shift 295 legal votes to “correct” the votes “randomly” cast for Irving solely as a result of her erroneous advantageous ballot position (and to award those same “random” votes to Andrews based solely on the primacy effect theory) would be, without any lawful justification, to disenfranchise those 295 voters. (See Shinn v. Heusner (1949) 91 Cal.App.2d 248, 252 [To invalidate lawfully cast absentee votes “would be, without warrant to disfranchise these voters.”]; Dennen v. Jastro (1913) 23 Cal.App. 264, 267 [Clerk’s inadvertent error in listing the same candidate twice, as the nominee of two different political parties, “should not disenfranchise the entire vote of the district and vitiate the election, unless it be made to appear that by reason of the irregularity the result was different from what it would otherwise have been, or that it prevented the voter from freely, fairly, and honestly expressing his choice of the candidate for the office.”]; Nelson v. Robinson (Fl. App. 1974) 301 So.2d 508 [A candidate’s unfavorable ballot position which allowed voters to exercise free choice after a reasonable study of the ballot, does not constitute a violation of equal protection.]; Roberts v. Byrd (Ky. 1961) 344 S.W.2d 378, 381 [Clerk’s failure to rotate names every 50 ballots did not void the election.]; Bees v. Gilronan (Ohio Com. Pl. 1953) 116 N.E.2d 317 [In the absence of fraud, election officials’ failure to properly rotate candidates’ names on the voting machine ballots did not invalidate the election.].)
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Supreme Court denies ballot access case Richard Winger reports: "Today the US Supreme Court refused to hear Cartwright v Perdue, a challenge to the Georgia petition requirement for minor party and independent candidates for US House. 02-1082. The petition is 5% of the number of registered voters. No minor party has used in the 60 years that it has existed, and no independent has used it since 1964."
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Sunday, March 09, 2003
Judiciary as a political body As Larry Solum works on Part 2 of his latest response in our debate (Part one is here), he might look at today's New York Times magazine cover story on the politicization of the judiciary in the Fourth Circuit.
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Review of Raskin book The Washington Post offers this brief review of Jamie Raskin's book, mentioned in a post earlier this week.
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Saturday, March 08, 2003
Paper on the Guarantee Clause, Yes the Guarantee Clause Any practicing election lawyers out there might think an academic paper on the Guarantee Clause would (at best) provide some interesting history, but would say little about how the real world of election law works. I hope to put this argument to rest in a draft paper I have just posted to SSRN. It is entitled: "Leaving the Empty Vessel of "Republicanism" Unfilled: An Argument for the Continued Non-Justiciability of Guarantee Clause Cases." Here is the abstract:
Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign and in cases raising "Guarantee Clause" claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.
In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for not deciding Guarantee Clause claims - that the Guarantee Clause is "not a repository of judicially manageable standards" - has failed to hold up in the face of the Court development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.
In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.
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Friday, March 07, 2003
New Jersey redistricting Sam Hirsch reports on the election law listserv:
Late yesterday, the New Jersey Supreme Court issued a stay pending appeal, which will allow New Jersey's 2003 state-legislative elections to proceed under the current districting plan. That plan had been upheld by three-judge federal courts in Page v. Bartels and Robertson v. Bartels and had resulted in the election in 2001 of record numbers of African-Americans, Latinos, and Asian Americans to the New Jersey Legislature. But the plan had been struck down by the State's intermediate appellate court on January 22, 2003, because it divided Newark and Jersey City into three districts each, allegedly in violation of the New Jersey Constitution. The Court has scheduled oral argument on the merits for April 28, 2003.
Here is a link to yesterday's ruling (including concurring and dissenting opinions): http://www.judiciary.state.nj.us/opinions/supreme/m728.pdf
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More on California campaign finance disclosure controversy Following up on the controversy noted in this post, the Los Angeles Times offers this story.
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A decent (but non-justiciable?) constitutional argument against the filibuster Writing a Wall Street Journal op-ed, Dean Doug Kmiec makes a good argument against current filibuster practices:
The cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment -- that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.
This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
Now where have I heard this before? Consider the abstract of Catherine Fisk and Erwin Chemerinsky, The Filibuster, 49 Stanford Law Review 181 (1997):
Professors Fisk and Chemerinsky then discuss the constitutionality of the filibuster. They first conclude that a judicial challenge to the Senate rules that permit it would be justiciable if brought by proper plaintiffs. They then conclude that, although the filibuster itself is not unconstitutional, the Senate rule that prohibits a majority of a newly elected Senate from abolishing the filibuster is unconstitutional because it impermissibly entrenches the decisions of past Congresses.
So this is interesting. Professor Chemerinsky and Dean Kmiec rarely agree on anything. Might Dean Kmiec's new embace of this argument (I don't recall that he made it before the Senate changed hands---if he did, please let me know) have anything to do with who is now using the filibuster for which purposes?
Fisk and Chemerinsky argue that the issue is justiciable (that is, could be heard by the courts). Kmiec doesn't address this issue. It seems to me there is a strong argument against Court involvement. The Constitution commits the choice of rules in the Senate to the Senate. Can we imagine the Supreme Court getting involved again in such a political question? It is hard to believe. I think any constitutional argument will have to be made in the Senate itself. More pragmatically, given the razor-thin margin of Republican control, would the Republicans really want to give up the filibuster?
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Thursday, March 06, 2003
Fallout from Torricelli matter When the Torricelli withdrawal took place, I took the position that if legislators don't like courts rewriting ambiguous laws (the question here was whether the NJ Democrats could replace Torricelli with fewer than 59 days before the election), they should write less ambiguous statutes. (Hasen, Richard L., Let Courts Fill in Gaps, Nat'l L.J., Nov. 4, 2002, at A20.) This report suggests New Jersey is moving in that direction.
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Cleta Mitchell on Shays-Meehan lawsuit Cleta Mitchell has an oped in today's Roll Call (full text not on line without a subscription) in which she criticizes Reps. Shays and Meehan for their lawsuit challenging the FEC's implementation of the BCRA.
Not only have BCRA’s architects been sly about their legislation, Shays and Rep. Marty Meehan (D-Mass.) have now asked a federal court to overturn the Federal Election Commission’s newly promulgated regulations on, among other things, “coordinated expenditures,” in hopes of making BCRA’s prohibitions and restrictions even worse.
The FEC in early February defined “coordinated expenditures” as those made for a public communication (radio, TV, print advertisements, direct mail or telephone calls to 500 or more people) in the “state or district” of a federal officeholder or candidate by someone other than a candidate or political party (citizens’ groups and unions) within 120 days of a primary or general election at the “request” or “suggestion” of a federal candidate or political party or agent of either or using a common vendor or former employee of a candidate or after “substantial discussion” or material involvement with the federal candidate, party or agent. And that’s the simple explanation.
Any such expenditure becomes an in-kind “contribution” to a candidate or political party subject to the BCRA limits and prohibitions. Which means that any incorporated citizens organization (NARAL Pro-Choice America, National Rifle Association, Sierra Club, etc.) or labor union that makes expenditures lobbying Congress through public advocacy will be guilty of illegal campaign contributions if their communication is deemed by the FEC to be coordinated.
Yet Shays and Meehan argue that the regulations don’t go far enough.
The regulations now apply only to public communications made in the 120 days preceding a primary or a general election. Although that covers two-thirds of every election year, in the odd-numbered years, citizens and citizens’ organizations may engage in lobbying activities and grassroots organizing without having to worry about going to jail for inadvertently making illegal campaign contributions. Shays and Meehan want to eliminate the 120-day window and make all public communications subject to government enforcement, regardless of when in the Congressional session — or the election cycle — they occur.
I haven't studied the Shays-Meehan suit in any detail, but I don't follow Mitchell's argument that the FEC regulation means that any corporation or union making expenditures lobbying Congress will be guilty of coordination if FEC says so. I presume the FEC would not say so unless the communications through public advocacy were made at the request or suggestion of the federal candidate or after substantial discussion with the candidate, party or agent. And it seems that the Shays-Meehan suit would simply eliminate any requirement that the coordinated expenditure include express words of advocacy or defeat of a candidate for office. Coordinated expenditures have the same corruptive potential whether they include such words of express advocacy or not.
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Defending Leahy In response to my immediately preceding post, a reader e-mails:
I don't think you're being fair to Senator Leahy. The Republican obstruction
of Clinton candidates WORKED. I think its like carpet bombing cities in WW2:
once one side adopted a tactic previously thought to be immoral, the other
side couldn't afford its clean hands any more.
Thanks for writing.
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What Senator Leahy and George Will have in common Earlier I criticized George Will's commentary suggesting that the filibuster is unconstitutional. It turns out, as many bloggers have pointed out, Will took the opposite position years ago when Republicans filibustered Democratic nominees. Others have pointed out that Senator Leahy, those years back, said he would not filibuster judicial candidates. Now, here he goes engaging in a filibuster. Commentator Ed Lazarus in his Findlaw column is shocked about Will's behavior:
I confess that I'm a sucker. I believe in these kinds of things - integrity, truth, certain absolute moral values, a right thing to do. Maybe it's all that Plato I read in college. I've always believed here is such a thing as a "true" answer (even if we cannot know it with certainty), and that there are ways of discerning better from worse, whether in argument or music or literature.
I find the conduct of both Leahy and Will not shocking, but expected.
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Front-loading of Democratic primaries The New York Times reports in this article that a large number of states are planning on holding their primaries for Democratic presidential nominee early in the season---thanks to a change in Democratic party rules. The large field and the absence of a Democratic front-runner may make this a risky strategy.
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Controversial campaign contributions The Los Angeles Times has this interesting front page article today detailing how some last-minute campaign contributions by an insurance company went unreported until after the election and may have deprived Democrats in the assembly of a 2/3 majority that would have allowed them to pass budget proposals without cooperation with Republicans.
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Why Should Democrats Compromise? It is interesting that Volokh Conspiracy contributor Philippe de Croy argues here that to end the stalemate over Estrada, the Republicans should give up Estrada and the Democrats should agree not to filibuster other controversial nominees like Pickering or Owens. I don't see the political logic of the argument. After all, the Democrats are now winning. Why would they give up a strategy that is working? To move on to Iraq? The Repubilcans will need to do that when the cloture votes fail.
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Wednesday, March 05, 2003
Morton Kondracke on Estrada filibuster Morton Kondracke wrote a commentary Monday in Roll Call entitled "Estrada Filibuster Escalates Partisan War Over Judiciary." Roll Call declined to publish my letter to the editor about the piece. Here it is:
In his March 3, 2003 commentary ("Estrada Filibuster Escalates Partisan War Over Judiciary") Morton Kondracke accuses Senate Democrats of using "the legislative equivalent of a dirty bomb to block" the nomination of Miguel Estrada to the D.C. Circuit. Kondracke earlier had accused Democrats of using the "nuclear option" in going after Estrada.
Aside from the inflammatory nature of Kondracke's rhetoric (is he subtly trying to associate Democrats with terrorists?), Democratic tactics are hardly unprecedented. In the past, Republican and Democrat senators used the equivalent of the neutron bomb: it destroyed the judicial nominee but left the Senate standing. All that a senator had to do was to threaten a filibuster (to put a "hold" on a nominee) to stop action on that nominee in its tracks. In addition, the Judiciary Committee gave essentially a veto power to the two Senators from the state in which the judge would sit. Scores of Clinton-era nominees (certainly some very qualified candidates) were killed with this neutron bomb, and although some protested, it hardly got the news attention Estrada has gotten.
Kondracke also seems to take at face value the view that some Democrats are opposing Estrada because they lack sufficient information. Although it is true that Estrada has refused to answer some basic questions (such as his position on cases like Roe v. Wade---the Estrada quotes in Kondracke's article hardly settle the matter), both Democrats and Republicans have a pretty good idea of his likely conservative judicial philosophy. That's why conservative interest groups are working as hard as they can to get Estrada confirmed and liberal interest groups are fighting the nomination hard. Because Estrada is a possible candidate for a future Supreme Court vacancy, the stakes are even higher.
The real issue is neither unprecedented Democratic tactics nor insufficient information. It is the extent to which the senators should consider political ideology in deciding whether or not to confirm nominees. Most senators apply ideological tests but don't admit it. They pretend it is about judicial "qualifications" or "experience." Ideology is why so many Clinton nominees were blocked by Republicans in the Senate and Bush nominees blocked by Democrats. Yet only a few senators, such as Charles Schumer (D-NY), have the courage to admit that political ideology is important to the Senate's role to "advise and consent" on judicial nominations.
The reason senators should consider ideology in approving judicial nominees is that judges on federal appeals courts, and especially Justices on the Supreme Court, make political decisions in deciding important constitutional cases. In deciding cases involving issues like abortion or affirmative action, there is simply not enough guidance in the constitutional text or history to meaningfully constrain judicial decisionmaking. Judges may need to act as though they are "finding law" rather than making it, but in difficult cases, they are making value judgments, not engaging (or solely engaging) in textual interpretation.
The Senate's power over nominations is much like the House's power to impeach for "high crimes and misdemeanors:" it is a political decision made by a political body. The question should be whether Estrada is too far ideologically from the mainstream that Democrats should block his nomination. If the political price for a filibuster is too high, the Democrats will relent. If not, the Republicans will relent. And that is as it should be.
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Election law books department This week sees the release of Jamie Raskin's new book, Overruling Democracy: The Supreme Court Versus the People. From a very different political perspective, next month features the release of the paperback edition of Brad Smith's book Unfree Speech: The Folly of Campaign Finance Reform. The paperback edition features a new preface by Smith.
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Tom Mann on Estrada filibuster Writing in today's Roll Call, the consistently perceptive Tom Mann makes the following observations:
So the Senate Democrats’ resort to a filibuster on the Estrada nomination is not unprecedented but it is highly unusual and extreme by Senate conventions. It is the latest escalation in what has been an intensifying “War of the Roses” between the parties in Washington. Earlier episodes included divisive battles over the Supreme Court nominations of Robert Bork and Clarence Thomas; the winter 1995-96 budget fights that led to government shutdowns; and the long-running independent counsel investigations of Clinton, leading to his impeachment by the Republican House.
That war is partly a consequence of razor-thin majorities in the Congress, the increasing ideological polarization between the parties, and the extension of the permanent campaign to the Congress. It has intensified as a result of the circumstances and leadership style of George W. Bush’s presidency.
One question to consider is what strategies politicians might use to get out of the escalating cycle. Mann suggests that Bush must "take pre-emptive action by submitting a more balanced ticket of judicial nominees and engaging in genuine negotiation and compromise with both parties in Congress. That seems most unlikely." I'm afraid he's right. Just wait for the next Democratic president putting forth judicial nominees and the Republican filibuster. Then we can watch each side accuse the other of hypocrisy.
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Tuesday, March 04, 2003
Justice Scalia again tries to inject himself into the Estrada confirmation battle See the AP story here.
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Department of Half-Baked ideas in the Estrada matter So one of the claims floating out there is that the filibuster is anti-democratic/anti-majoritarian. I have already pointed out elsewhere that the Senate itself is a non-majoritarian institution (giving as many seats to Wyoming as to California). Might it be said that at least in the case of the Estrada filibuster, the filibuster serves majoritarianism? I haven't done all the math, but just consider that both Senators from New York and California support the filibuster. If we assign to Senators the number of people they represent from their state (given two senators, give each half the state's population), it may well be that the filibuster supports what the majority of people want.
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More on Georgia v. Georgia v. Ashcroft available here.
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Monday, March 03, 2003
Ongoing debate with Larry Solum on the Role of Ideology in Judicial Selection I should have known better than to get into a jurisprudential debate with Larry Solum, a Loyola Law School colleague and one of the country’s leading jurisprudential theorists. Larry’s latest post is here, and if you follow the links there you can see the set of exchanges between us.
Let me begin by saying that Larry is of course right that I was making both a positive and a normative claim. The positive (or descriptive) claim is that in the hard constitutional cases, the Justices of the Supreme Court do not see themselves bound by text, history, or precedent. Larry appears to disagree a bit about this. (He says: "[Rick's position is close to the CLS position of] Law is Politics! Of course, that is precisely the position that I am arguing is neither necessary (as a matter of fact) nor desirable (as a matter of political and legal philosophy.")
I can’t do justice to my positive argument here; my book shows the point through an exhaustive analysis of the most important election law cases from Baker v. Carr to Bush v. Gore. Maybe the Court has acted differently (in a more principled way?) in other areas; I don't know. In the election law area, I claim that both liberals and conservatives have deviated from text, history, or precedent to reach the results that they have wanted. The book uses the Harper poll tax case to make the point most directly. Harper was almost a 6-3 summary affirmance of the lower court case upholding the poll tax. Justice Goldberg initially wrote an impassioned draft dissent (reprinted in an appendix to my book). Justice Black, who voted to affirm, didn't like where the dissent was going, and called for a full hearing. He got burned. Three Justices changed their vote in the next year on full hearing---overruling the Breedlove precedent upholding the poll tax along the way. The Constitution wasn't amended that year. No history or text changed. Three justices just changed their minds. (Justice Fortas, who replaced Goldberg, took the same position with Goldberg and concurred in Douglas's majority opinion.)
What explains the reversal? Certainly not text, history, or precedent. And this is not a liberal disease. I make the same criticism of conservative opinions including Shaw v. Reno and Bush v. Gore. The Justices are making value judgments about what political equality should require. And they are making the decisions as a matter of constitutional law.
No Justices on the Court have confined themselves to text, history, or precedent in the election law area, and there is not a single Justice sitting on the Court today who adheres to Justice Frankfurter’s position in Baker v. Carr---neither Justice Thomas nor Justice Ginsburg is ready to march out of the political thicket. Indeed, conservatives like Judge Posner have a new-found appreciation for Supreme Court intervention in the political process in light of the Florida election controversy. So what to do?
I don't believe that we can realistically expect the Justices to keep out of the political process (or stick to text, history, and precedent) in the election law cases. That might be the best solution (I don’t say in the book and I’m not sure I'd say so in any case---since I'm not a jurisprudential theorist, my grand ideas are not worked out well as Larry's are), but it is completely unrealistic. So my normative theory is one of second best. I offer two normative prescriptions. (These are my versions of minimalism, which differ from Sunstein’s and have some affinity to Dorf and Sabel’s “Democratic Experimentalism”):
(1) The Justices should move slowly when deciding political equality cases advancing novel theories of equality. The more novel the holding, the murkier the rule articulated by the Court should be. This lets the Court see what kind of damage the new rule can do by looking at what happens in the lower courts. The best thing to say (and there is not much) about the Bush v. Gore opinion is that its equal protection holding is opaque. Let's see what happens in the lower courts before enshrining any federal rights to oversee the nuts and bolts of elections.
(2) More controversially, I claim that the Court should protect three “core” political equality values, but leave contested political equality claims to the political process. This argument takes a long time for me to make in the book, but my basic idea is that aside from some basic democratic principles (such as no denial of the right to vote based upon someone’s race or religion) which the Court should protect regardless of social consensus, the Court should recognize as core rights only those political equality claims about which society has reached a near consensus. Harper was thus rightly decided, because all but four states had abolished the poll tax. Justice Harlan's dissent shows the extent of consensus (though he uses consensus to argue against the result in Harper). The Court’s role was to police the outliers. (I added the information about text, history, and precedent in my hypo for Larry's benefit, not to claim these factors should be dispositive.) And City of Mobile v. Bolden was right too, because the argument for more proportional representation went well beyond social consensus about what democracy requires. (By the way, Harper is a case usually hailed by liberals and City of Mobile a widely derided case.)
A corollary to my principle is that the Court should defer to the legislature’s adoption of a contested view of political equality. Thus, the Court was right to uphold the Voting Rights Act, which adopted proportionality much like the claim advanced in City of Mobile v. Bolden. But the Court was wrong to reject political equality as a compelling rationale for campaign finance regulation in Buckley v. Valeo.
One big problem in the election law area is self-interest, however, and the Court must engage in close means-ends scrutiny to police self interested legislative action in the name of political equality. That's another point (tangential to this debate) that I develop in the book.
When the Court goes beyond these rules, it runs the risk of changing social consensus. That’s what happened when the Court adopted a strict one person, one vote rule in Reynolds v. Sims. It changed the consensus, so that the principle of equally weighted voting is now in the core. Moving beyond consensus runs serious dangers of changing political expectations.
(Larry asked about reaffirming Roe. For me, this is a much harder case than reaffirming Reynolds (and well outside my area of expertise) because the Court did not create social consensus. So that rule doesn’t work to uphold Roe. My intuition in the abortion context would be to reaffirm Roe because (and this is not something I have explored in the book or thought about in any depth) I would recognize certain rights of privacy and bodily autonomy that do not depend upon social consensus---analogous to those core equality rights that exist beyond social consensus. But I haven't given this nearly the thought that I have to election law issues.)
I argue at the end of the book that both conservative and liberal the Justices would do best to try to avoid creating new contested political equality rights as a matter of constitutional law, and both groups might be better off if they did so. I suggest various signaling devices like dicta to move toward this new equilibrium.
In the end, I don’t claim to have discovered “The Truth” about the meaning of the Constitution. The decisions made in election law cases are political, and we would all be better off if we acknowledged this fact.
Bringing this back to the Cook nomination and Cohen's critique (where Larry and I started), if we fail to acknowledge the political nature of judging, we still will get Justices confirmed who will vote on the basis of ideology, but we will disable the decisionmakers from considering ideology in advising and consenting on nominations.
Post Script Larry thinks he's Perry White and promises a further response.
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