Sunday, May 29, 2016

Documents unsealed in Trump University lawsuit

On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.

I guess judges do have ways to protect themselves against political attacks.

Posted by Howard Wasserman on May 29, 2016 at 03:40 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.

Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.

Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Jurisdiction day at the Court

The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.

In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.

[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.

Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**

[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.

In Spokeo, the Court avoided the big question--whether a statutory violation, simpliciter, is sufficient for Article III injury-in-fact--by remanding to the Ninth Circuit to redo its standing analysis to consider not only whether the injury was particularized, but also whether it was "concrete," which is a distinct component of injury. According to the majority, the Ninth Circuit "failed to fully appreciate" this distinction. Along the way, the Court allowed a couple of points that may be significant for standing analysis going forward. First, a harm can be both concrete and intangible. Second, both history and congressional judgment play "important roles" in determining what intangible harms are sufficiently concrete. Third, the risk of harm may be sufficient to establish an injury and Congress can create procedural rights designed to avoid that risk. Finally, if Congress establishes a statutory intangible harm that is sufficiently concrete, a plaintiff need not allege any additional harm beyond the statutory violation itself. Thus, the ban on publishing false information could (presumably depending on what the information was) be sufficient to support standing.

Justice Ginsburg, joined by Justice Sotomayor, dissented. She went out of her way to agree with much of the majority opinion. She dissented because this is far from a case of a simple procedural injury with no harm (the majority's paradigm was publishing an incorrect zip code). The plaintiff had alleged significant material misrepresentations about his age, marital status, wealth, education, and employment history, all of which he alleged would harm his job prospects. She argued that it was unnecessary to remand so the Ninth Circuit could simply underscore what is already obvious about the harm the plaintiff suffered (or was threatened with suffering) to his job prospects.

Posted by Howard Wasserman on May 16, 2016 at 11:30 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Wednesday, May 04, 2016

Judicial vacancies

Two items worth checking with respect to federal judicial vacancies:

First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.

Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.

Posted by Howard Wasserman on May 4, 2016 at 04:08 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, April 22, 2016

VEEP returns amid constitutional chaos

VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.

I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.

Posted by Howard Wasserman on April 22, 2016 at 03:37 PM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

The (still) irrepressible myth of Klein

SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.

Justice Ginsburg wrote for Justice Kennedy, Thomas, Breyer, Alito, and Kagan. She hit a few key points.

   1) She appeared to limit Klein's meaning to the idea that Congress cannot dictate constitutional meaning to the Court (what Larry Sager has called the prohibition on compelling the Court to speak "constitutional untruths"). Klein's additional statement that Congress also cannot dictate rules of decision in pending cases--from which SCOTUS, lower courts, and commentators had derived the "no dictating outcomes" principle--cannot be taken at face value. Instead, Ginsburg looked to the various non-Klein limitations on retroactive legislation and insisted that, outside of those limits, the Court had twice affirmed that "Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases." At a minimum, this marks a change of course, since "no dictating outcomes" had become Klein's central point in sub-constitutional cases.

   2) Ginsburg rejected the Bank's two main, related arguments that the statute was unprecedented in applying to only one case and in not leaving anything for judicial resolution, since the factual questions to be resolved (whether the asset was in the United States, was blocked, and was equal in value to a financial asset of Iran) were foregone conclusions. As to the second, she rejected the argument that the facts were foregone conclusions, requiring "plenty" of particular judicial determinations. And, in any event, that facts are undisputed does not mean a court is not applying new law to those facts. As to the first argument, Ginsburg insisted that § 8772 is not limited to only one case; while the enforcement proceedings were consolidated for administrative purposes, they reflected efforts to execute on 16 different judgments involving more than 1000 victims. Moreover, she rejected that idea that there is something inherently wrong with particularized legislation. While legislation often is of general applicability, bills governing one or a small number of subjects are permissible and common (citing, inter alia, Wheeling Bridge, a case upholding a statute designating a single particular bridge as a post road, a case Klein reaffirmed and distinguished).

   3) Finally, Ginsburg emphasized the statute's national-security context as an additional reason for deference to the political branches. Since Congress and the President creating foreign sovereign immunity, they also have broader power to create exceptions. This struck me more as a cherry-on-top argument good for this case. I expect the next Klein case, arising in a purely domestic context, to deemphasize that piece.

The Chief dissented, joined by Justice Sotomayor (which may be the most distinctive feature of the case), insisting that "there has never been anything" like this statute. No previous statute had singled out only a single pending case or a single defendant in this way. No statute had turned on such basic, already-undisputed facts.

To some extent, the divide in the Court turned on how they view several hypotheticals. The first is the "Smith wins" statute, which the Court had previously insisted (and the plaintiffs conceded at oral argument) would be invalid. The Court split over just how close § 8772 came to this paradigm. Roberts insisted they were the same, since creating a factual fait accomplii is no different that declaring a winner. Ginsburg, again deemphasizing this part of Klein, argued that such a law would be irrational, thereby violating Equal Protection. In any event, such a law would not be establishing a new legal standard, only compelling a result under old law. But Roberts had an interesting response: Such a statute would create new substantive law--old law did not necessarily determine that Smith wins, the new law does. Congress only can act by "changing the law" and anything Congress does (at least in exercising its power to enact statutes) is changing the law. It is necessary to take the next step of asking whether that new law that Congress enacted constitutes an invalid judicial act, something the majority fails to do.

The dissent offered a second hypothetical--a law declaring that a letter from a neighbor is conclusive proof of property boundaries, applicable only to one pending property case. But Ginsburg insisted this was the wrong analogy; the right analogy is a law clarifying which of two inconsistent maps should be used to establish the property boundary in the case. Notably, the statute declared invalid in Klein was problematic, in part, because Congress was dictating the effect to give a particular form of proof in the case.

A third Roberts hypothetical responded to the majority's position (used by many lower courts) that, as long as the result depends on some legal and factual determinations from the court, the law does not dictate the outcome. Imagine that the new law provided that Smith wins so long as the court finds that Jones was properly served and Smith's claim was within the statute of limitations, both of which are undisputed when the new law is enacted.* The majority's response, I suppose, is that those factual determinations do not go to the substantive merits of the claim being brought, while § 8772's factual determinations (whether the judgment debtor owns some enforceable assets) go to the heart of an action to execute a judgment.

[*] Then, just because, Roberts quoted Porgy and Bess.

Roberts closed by criticizing the opinion for offering a blueprint for how Congress can pick winners and losers in particular pending (or even threatened) cases going forward. In reality, it was clear before today that Klein would not have offered much resistance to most such efforts. Bank Markazi puts an exclamation point on that, particularly in arguably reading the "no dictating outcomes" principle out of Klein.

At the same time, Roberts did not offer a line between legislative and judicial conduct, "readily conced[ing], without embarrassment"** the difficulty in drawing such a line. Moreover, subject to due process retroactivity limits, Congress must be free to change the law in statutory cases, even where that alters who prevails in the case. After all, every law benefits one side or the other and Congress drafts the law to benefit the side Congress wishes to benefit. So even if Roberts is correct that § 8772 oversteps, he does not leave a sense of what Congress can, or should be able, to do.

[**] What might we craw from the "without embarrassment" language? And how might it relate to judges calling balls and strikes? Is Roberts acknowledging--and telling the public and the other branches--that constitutional decisionmaking is not so simple as he (and they) often make it out to be?

 

Posted by Howard Wasserman on April 21, 2016 at 12:43 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, April 15, 2016

Attorneys' Fees and Departmentalism

The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.

Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.

Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.

Posted by Howard Wasserman on April 15, 2016 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 13, 2016

Jews, politics, and the next generation

I take no position on this opinion about the policy and politics of Bernie Sanders' appointment of Simone Zimmerman, a sharp critic of Israel's West Bank policies and supporter of the BDS movement, as director of Jewish outreach. Instead, let me offer the following:

Update: On Thursday, the campaign suspended Zimmerman, so it could investigate a year-old tweet in which she lambasted Netanyahu, then closed with "Fuck you, Bibi . . ."

1) It strikes me as surprising that the first serious Jewish presidential candidate (let's stipulate that Barry Goldwater no longer self-identified as Jewish) needs a director of Jewish outreach. Did Obama have a director of African-American outreach or Bush a director of Christian outreach? But Sanders' identity has not alone rallied the Jewish vote the way Obama's identity rallied the African-American vote. (Full disclosure: I am supporting Clinton because my desire to win the general election trumps both my religio-ethnic identity and my purest policy preferences).

2) It strikes me as even more odd (if not ironic) that there is a belief that a Sanders presidency would be bad for the Jews. Moreover, it seems entirely because of Sanders' apparent policy preferences with respect to Israel. This reflects what I believe is an unfortunate conflation of Judaism, Israel, and the policies of the Israeli government.

3) Michelle Goldberg's Slate piece argues that hiring Zimmerman reflects a division of policy and politics. It jibes with the preferences of the younger voters, including Jewish voters, who support Sanders and who are likely to oppose the Netanyahu government and its policies. It does not jibe with the preferences of older (and more numerous) Jewish voters, who tend to support Israel's policies, aligning more closely with AIPAC's positions on Israel (even while largely voting Democratic).

The dynamic feels roughly analogous to a similar evolution with respect to Cuba here in Miami. An increasing portion of the younger generations of Cuban-Americans (many of them first- and second-generation) are less hawkish as to Cuba and the Castro regime, and more open to normalizing relations, than their parents and grandparents, many of whom lived and suffered under that regime.

Posted by Howard Wasserman on April 13, 2016 at 07:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Wednesday, April 06, 2016

The new median Justice

Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.

But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:

   • When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).

   • Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.

   • If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.

But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.

None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.

Posted by Howard Wasserman on April 6, 2016 at 06:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, March 29, 2016

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Posted by Brian Clarke on March 29, 2016 at 01:08 PM in Civil Procedure, Current Affairs, Employment and Labor Law, Gender, Law and Politics, Torts, Workplace Law | Permalink | Comments (1)

Employment Law Easter Eggs in North Carolina’s HB 2

The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina.  The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2.  [Read the Complaint here]. 

However, HB2 was not just about LGBT individuals.  It also has some rather nasty Easter Eggs for all employees in North Carolina. 

First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage.  No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles. 

Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex.  The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill.  That sentence reads:

“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” 

To a lay reader (or legislator), this sentence would not seem terribly important.  However, it was inserted into Article 49A of Chapter 143 of the NC General Statutes [here, before being amended].  Article 49A is called the “Equal Employment Practices Act” (“NC EEPA”) and contains the heart of North Carolina’s state law protection from employment discrimination.  NC EEPA, which was enacted in 1977, is merely a statement of public policy.  It declares that it is the public policy of North Carolina “to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”  N.C. Gen. Stat. 143-422.2.  Unfortunately, NC EEPA does not contain a private right of action.  Thus, the only way to enforce it was through a common law tort action for wrongful discharge in violation of public policy. 

Now, of course, you see the problem with the sentence inserted into Article 49A via HB 2.  “[N]o person may bring any civil action based upon the public policy expressed herein.” 

Poof.  With that sentence, 34 years of state law protection for employment discrimination based on race, national origin, color, religion, sex, and age VANISHED.  Millions of working North Carolinians (whether they knew it or not) relied on NC EEPA to help protect them from discrimination.  Thousands – tens of thousands? – of North Carolina workers have asserted wrongful discharge claims premised on NC EEPA since our appellate courts officially recognized the claim in 1982. 

As a management-side employment lawyer for more than 11 years, I never heard a single client complain about the existence of this claim.  But now, it is gone. 

I wonder how many members of North Carolina General Assembly knew it was in HB 2?  I wonder how many of them knew the ramifications of that sentence?

Posted by Brian Clarke on March 29, 2016 at 08:00 AM in Employment and Labor Law, Gender, Law and Politics, Torts, Workplace Law | Permalink | Comments (6)

Monday, March 28, 2016

Wednesday in North Carolina

It has been an interesting week in North Carolina.  Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22.  Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.”  The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories.  Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows: 

    (b) This section shall not apply to the following:

        (1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.

        (2) YMCA, YWCA and similar types of dormitory lodging facilities.

        (3) A private club or other establishment not, in fact, open to the public.

This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.”  So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1. 

Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.” 

The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016.  Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete.  When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time.  [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.]  HB 2 was 5 single spaced pages of fairly dense statutory language.  The first vote was held 5 minutes after it was introduced.  There was a 30 minute public comment period for those who were able to get to Raleigh to testify.  Then some limited debate.  Then two more votes, culminating in final passage by the House at about 3:30 pm.  The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period.  After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest.  The chair called a final vote and HB 2 passed by a vote of 32-0.  This was roughly 7:00 pm.  Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night. 

In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country. 

ALL local non-discrimination ordinances were banished.  All local governments in NC were prohibited from protecting any group not protected by state law.  In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex.  It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate. 

Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment.  More on those later. 

So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights. 

Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus.  I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.

Posted by Brian Clarke on March 28, 2016 at 10:06 PM in Culture, Current Affairs, Gender, Law and Politics | Permalink | Comments (2)

Saturday, March 19, 2016

Hulk Hogan and Complete Diversity

My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.

But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).

The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."

For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).

Posted by Howard Wasserman on March 19, 2016 at 11:52 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, March 17, 2016

Parliamentary politics and judicial apppointments

Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**

[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.

[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.

Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***

[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.

Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.

 

Posted by Howard Wasserman on March 17, 2016 at 01:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, March 16, 2016

Miguel Estrada on Merrick Garland

I’ve seen a number of pieces on the Garland nomination link to this dispiriting—and totally accurate—take on judicial nominations by my old boss Miguel Estrada (written with Benjamin Wittes). President Bush, you may recall, appointed Estrada,  one of the greatest Supreme Court advocates of his generation and an influential conservative, to the D.C. Circuit.  Senate Democrats successfully filibustered his nomination in 2003—a preemptive strike against a candidate widely viewed as a future SCOTUS pick.

Miguel is now speaking out in favor of confirming Judge Garland. Jan Crawford tweets, here, that he “look[s] forward to [Garland’s] service on the Court” and calls Garland "superbly qualified."  (That’s also in keeping with the spirit of his take on the nomination process in this letter, written in support of Elena Kagan’s SCOTUS candidacy).

Posted by Mark Moller on March 16, 2016 at 08:32 PM in Law and Politics | Permalink | Comments (3)

Quick news commentaries

Two completely unrelated items, in one post.

1) The Ferguson City Council reversed itself, voting 6-0 to accept all the provisions of the proposed DOJ consent decree. DOJ now will drop its § 14141 suit, pending judicial approval of the settlement.

2) Merrick Garland is an interesting choice for SCOTUS in a number of respects. His age makes him a good compromise candidate for the times--he is unlikely to serve for 30-35 years, which might be a selling point. Given that Bill Clinton appointed Garland to the court of appeals, Garland also might be particularly acceptable to Hillary and someone she would renominate if this nomination goes nowhere and she is elected in November (or if Obama makes a recess appointment in anticipation of a Clinton victory). I still do not believe Senate Republicans are going to change their minds (or at the very least, they will not confirm, even if they hold hearings). But this is the type of nomination that might increase the political pressure. Politically, I hope I am wrong.

Posted by Howard Wasserman on March 16, 2016 at 12:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, March 14, 2016

This should not be surprising

Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.

[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.

But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).

Posted by Howard Wasserman on March 14, 2016 at 07:40 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, March 10, 2016

Why does it matter (redux)?

In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.

But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?

Posted by Howard Wasserman on March 10, 2016 at 09:25 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, March 08, 2016

Nixon, Burger, and timing of nominations

In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).

The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.

Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be.  Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.

[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.

Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?

Posted by Howard Wasserman on March 8, 2016 at 07:26 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Sunday, March 06, 2016

TRAP laws, rump SCOTUS, and the shadow docket

Four points.

  1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.

  2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.

   3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.

   4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).

   5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.

So might the Court take the following out in the short-term?

Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.

Posted by Howard Wasserman on March 6, 2016 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, March 01, 2016

Read the text, Senator

If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.

Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.

Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.

If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.

Posted by Howard Wasserman on March 1, 2016 at 02:00 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Sunday, February 28, 2016

Claim: There is nothing wrong with politically motivated prosecutions (of genuinely guilty political candidates).

Here's an ethical hypo that isn't really a hypo at all.  Suppose a U.S. Attorney from the opposite party has strong reason to believe that a leading---and very dangerous and scary---presidential candidate was guilty of a serious federal felony---if, for example, that candidate were currently embroiled in multiple lawsuits, including one by a major state Attorney General, alleging that the candidate in question had led a fraudulent scheme to bilk thousands of people of their hard-earned money with a fake "university"---allegations that, if true, would also clearly meet the elements of various criminal fraud statutes.

Should that U.S. attorney investigate, and, if s/he finds probable cause, prosecute?  Even in an election year?

I'm inclined to think yes: even though it would lead to cries of "politically motivated prosecution," there's nothing particularly wrong with politically motivated prosecutions: if one wishes to run for the highest office in the land, one probably shouldn't go commit a bunch of felonies; if one does commit the felonies then run, one is fair game.* Plus, there's something grim about the idea that one can get de facto immunity from one's felonies by running for president. Especially when the candidate is, as noted, not just an ordinary political opponent, or even an extremist political opponent, but a terrifying, openly racist, demagogue. 

 

-----

edit: at least when the felonies are classic malum in se crimes like conning people out of their money. I might feel differently if we were talking about, e.g., victimless drug crimes.

Posted by Paul Gowder on February 28, 2016 at 12:07 PM in Criminal Law, Law and Politics | Permalink | Comments (12)

Tuesday, February 16, 2016

The West Wing may not be the best source for resolving political problems

Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.

Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off.  I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).

First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring.  We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.

Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**

[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle. 

[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.

Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.

Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).

Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):

    Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.

    Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.

   Lang: Well, thank you for that.

But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.

I know, I know--it is only a TV show.

Posted by Howard Wasserman on February 16, 2016 at 07:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, February 15, 2016

The Peter Principle and the Supreme Court

I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.

Given that (especially # 2), some thoughts/questions as we go forward:

1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.

2) I also wonder about the following, with respect to the White House's seemingly quick rejection of a recess appointment (the Senate is, perhaps, in recess until February 22).

A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.

But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not  even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."

3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.

[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.

Posted by Howard Wasserman on February 15, 2016 at 03:42 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (18)

Sunday, February 14, 2016

Justice Scalia and Election Law

As someone who focuses primarily on election law, the implications of Justice Scalia's death are monumental. Virtually every aspect of election law might be different with an Obama appointee replacing Scalia.  From redistricting, to campaign finance, to voter ID, to the next Bush v. Gore, here is a breakdown of the various areas that may be impacted by the next Justice:

Redistricting:

First, there is the obvious impact on this Term's one-person, one-vote case, Evenwel, on whether states must use citizen-voting age population (a count of eligible voters), instead of total population, as the measure for achieving population equality between districts.  I think this case was going to come down in favor of allowing the state to choose which measure to use, so Justice Scalia's death may not change this result.  But if he was going to vote with the other conservatives and require states to use citizen-voting age population, that probably would have been a 5-4 decision.  Now it will be 4-4, meaning that the lower court, allowing total population, will be affirmed.  There could also be an immediate impact on North Carolina's request for a stay of recent a lower court decision striking down that state's congressional maps.

Second -- and this is a big one -- the federal courts might finally be able to police partisan gerrymandering.  In a 2003 decision, Vieth v. Jubelirer, Justice Scalia wrote for a 4-Justice plurality that claims of partisan gerrymandering are nonjusticiable, because there is no manageable standard for a court to use to separate "good" politics from "bad" in the redistricting context.  Four Justices -- the so-called "liberals" -- came up with various standards to use; Justice Kennedy did not like any of the standards but wanted to leave the door open to a potential standard in the future. (The Court in essence affirmed this split in 2006 in LULAC v. Perry.) Now, if a new Justice agrees with one of the standards (such as Justice Kennedy's invocation of the First Amendment for these cases), there would be 5 votes to police partisan gerrymandering.  That is, the Court could become even more enmeshed in policing the worst political abuses in drawing district lines.  The Court could go deeper into the "political thicket."

Third, there could be an effect on the scope of redistricting decisions involving race -- including the racial gerrymandering cases under the Equal Protection Clause and minority vote dilution claims under Section 2 of the Voting Rights Act.  In essence, a new Justice may be more willing to invoke the Equal Protection Clause or the Voting Rights Act to ensure greater minority representation in the drawing of district lines.

Voting Rights Act:

A new Supreme Court appointment may have major implications for the Voting Rights Act.  Shelby County v. Holder, which effectively gutted the Section 5 preclearance mechanism, was a 5-4 decision.  There has been some concern among the voting rights community that the Court could invalidate Section 5 further if the DOJ  successfully places Texas under preclearance (under the "bail in" mechanism of Section 3), or that Section 2 (which prohibits discrimination in voting nationwide) could be in jeopardy.  But now, with only 4 true conservative votes, these aspects of the Voting Rights Act may live on much longer.  In addition, a new Obama-appointed Justice would likely uphold any new coverage formula for Section 5 that Congress could pass (although, of course, the likelihood of Congress acting is pretty slim).

Campaign Finance:

In the 10 years of the Roberts Court, the conservative majority has struck down virtually every campaign finance provision it has considered, typically on a 5-4 vote.  Of course, the most notable decision was Citizen United v. FEC.  But there have been other significant cases as well, such as McCutcheon (striking down aggregate contribution limitations) and Arizona Free Enterprise (invalidating matching funds in public financing).  Unless the new Justice holds stare decisis above jurisprudential considerations, these recent precedents are, all of a sudden, in question.  In essence, the past 10 years have been marked by significant deregulation of money in politics.  A new Justice may call the entire foundation of recent campaign law into question.

Voter ID:

In 2008, in Crawford v. Marion County Election Board, the Court ruled, 6-3 to uphold Indiana's voter ID law, which then was considered the strictest in the nation.  States around the country followed suit, passing their own strict voter ID measures.

Yet the vote breakdown of the 6 Justices in Crawford was important:  Justice Stevens wrote the plurality, joined by Chief Justice Roberts and Justice Kennedy, ruling on somewhat narrow grounds that the challengers did not have sufficient evidence to strike down Indiana's law in a facial challenge.  Importantly, the plurality left the door open to as-applied challenges with a stronger evidentiary record of the burdens the law imposed on voters.  Justice Scalia, joined by Justices Thomas and Alito, concurred in the judgment.  He would have upheld all voter ID laws on their face; Scalia disagreed with the plurality's approach to invite further as-applied litigation.  Justices Ginsburg, Breyer, and Souter dissented.

It is quite possible that Justice Stevens voted with the conservative justices, and wrote the plurality opinion, because of what I have termed "strategic compromise."  Justice Stevens may have been concerned that, if he did not write a more moderate opinion upholding the law and instead joined the dissent, then Chief Justice Roberts and Justice Kennedy may have instead joined Justice Scalia's opinion, foreclosing any possible challenges to voter ID laws in the future.   That is, without Justice Stevens taking the lead for a more moderate view, Justice Scalia's opinion could have become the lead opinion for a 5-4 conservative majority.

Without Justice Scalia, and with Justices Sotomayor and Kagan on the Court, the consideration of a voter ID law could look very different.  It is quite possible that, with an Obama appointee, there will be 5 Justices to strike down a strict voter ID law (such as Texas's, which the 5th Circuit invalidated; that court is currently deciding whether to take the case en banc).  

In sum, a new Justice could create a new majority that will look much more skeptically at voter ID laws.

Other election administration issues:

One of the problems with the Court's recent election law doctrine, as I have argued, is that the Court unduly defers to states in how they run their elections.  This means that state legislatures, the majority of which are Republican-controlled, have great leeway in enacting rules for election administration.  Under heightened scrutiny, it is usually the state that has the burden of justifying a law that infringes on the fundamental right to vote.  But the Court's recent jurisprudence has been backward on this point: it has deferred to a state's  interest, usually agreeing that a general assertion of preserving "election integrity" justifies a law that impacts voting rights.  That is, all states must do is say "election integrity," and the Court has accepted that justification at face value without scrutinizing more closely the real reason behind a law.

A new Justice will (hopefully) understand the fallacy of this approach, and instead require states to provide specific, detailed justifications for its voting rules.  This is not to say that the Court should strike down every election regulation.  Instead, it means that states must more carefully explain the precise rationale for a voting rule.

On a practical level, this might have an impact on cases about early voting, registration rules, provisional balloting, last-minute litigation (the so-called Purcell Principle), and scores of other issues.  A change in the level of detail and evidence states must provide to justify their election laws could have a major impact on the scope of election litigation -- thereby affecting the manner in which we vote.

Trump v. Clinton:

Bush v. Gore was a 5-4 decision.  What will happen if this year's presidential election goes into overtime, and the courts must become involved once again?  Although not likely, it is not impossible either.  Before Justice Scalia's death, the Court had 5 Republican appointees and 4 Democratic appointees.  If Obama is successful in appointing a new Justice, that political split will be 5-4 in the other direction.  For those who think that the Court's election law doctrine is influenced by the Justice's personal ideologies (a claim that is only partially true, in my opinion), then this shift could have huge implications on how the Court might resolve a disputed election. 

A new Justice will have an obvious impact on the hot-button issues of the day: abortion, affirmative action, gun rights, etc.  Add election law to the mix.

Posted by Josh Douglas on February 14, 2016 at 12:46 PM in Law and Politics | Permalink | Comments (2)

Saturday, February 13, 2016

Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?

The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president.  The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.

Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump.  Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office. 

I'm not convinced.

Most fundamentally, the cases invoking the "competitive standing" doctrine all involved the government providing some benefit on some candidates but not others, thereby putting the candidate at a "competitive" disadvantage in the campaign.  In one case, Ralph Nader had standing because he objected to participating in a presidential debate sponsored by corporate donors.  He suffered an injury, as compared to his rivals, because of the decision to hold the debate in a manner that was contrary to the message of his campaign -- making the election fundamentally less competitive for him because he could not reach voters who would watch the debate.  In the cases giving "competitive standing" to political parties, there was direct evidence that the governmental action would directly cause added expenses: for example, when the Republican Party in Texas sought to remove Tom DeLay from the ballot and substitute a new candidate, the Texas Democratic Party suffered an injury-in-fact in the need to mount a completely different campaign against a different opponent.  Courts have also found an injury to a political party when the party's nominee will face stiffer competition, i.e., leading to added expenses, but this relates to the general election, when ideological lines are clearer.

Here, the added expense to Trump seems fairly speculative.  How can he demonstrate that Cruz's placement on the ballot has harmed him directly?  Maybe all of Cruz's supporters would vote for Ben Carson. Can he point to any direct campaign expenses that he has incurred, and would not have, if Cruz were not on the ballot?  That is, how does Cruz's placement on the ballot directly cause any injuries to Trump? Is it because he is the front runner, meaning that Jim Gilmore would not have had standing (before he dropped out, of course)? Further, this situation seems different from the government sponsoring a debate but having rules that effectively exclude one candidate, providing a clear competitive disadvantage to that candidate.

At a minimum, this does not seem to be a clear-cut case.  To be sure, Trump could sue in state court under various state standing doctrines, or have a state's ballot commission rule on Cruz's eligibility.  (Derek Muller is compiling these various lawsuits, brought by voters, here.)  And he could sue after the election in each state, saying that his loss of delegates was caused directly by Cruz winning some of those ballots when Cruz was ineligible.  But I think that a pre-election suit to try to take Cruz off of the ballot is a much harder road. Trump would need to show that this "competitive standing" doctrine should extend beyond political parties at a general election, beyond a conferral of actual benefits to some candidates but not others, but to the mere appearance of an additional candidate on the ballot, when the election has not yet taken place.

My guess is that a federal court will not want to wade into the murkiness of Trump's standing and will wait for the political process to play out, or for after the election in that state, to make a ruling. If it does reach the question of Trump's standing, then there are good arguments against his ability to bring this suit.

[Update: Rick Hasen responds here. We certainly agree on one point: Trump will lose this case one way or the other, whether it is on standing or the merits.]

Posted by Josh Douglas on February 13, 2016 at 12:31 PM in Law and Politics | Permalink | Comments (5)

Wednesday, February 10, 2016

Ferguson consent decree falls apart, DOJ sues

The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.

I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in  single night. Life imitating art imitating life?

Posted by Howard Wasserman on February 10, 2016 at 08:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Where do Republicans go?

The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).

Where do Republicans and conservatives threaten to go if Bernie Sanders wins?

Posted by Howard Wasserman on February 10, 2016 at 06:51 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, February 09, 2016

Three-Judge Courts and Precedent: An Election Law Procedural Quirk

Must three-judge federal district courts follow the law of the circuit in which they sit?  

Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation.  In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court.  (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.)  The chief judge assigns a circuit judge and two district judges to serve as the three-judge court.  The court sits like a normal trial court, making findings of fact and conclusions of law.  Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage.  Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)

Sometimes, these courts face questions that the circuit court in which they sit have already decided.  A circuit court ruling on a particular point of law would be binding on a single district judge.  Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong.  I explain why after the jump.

Assume that a plaintiff brings a redistricting case under the Voting Rights Act, arguing that the mapmakers did not create enough "influence districts," where minority voters, even though not a majority, can still have a meaningful impact on who wins.  Assume further that the circuit court has ruled, in a separate case that does not go through the three-judge district court process, that the Voting Rights Act does not permit a claim for influence districts.  Must the three-judge court, as a matter of binding precedent, follow that circuit court ruling?

Three-judge district courts considering this question have largely assumed that they must follow circuit law. But they have provided very little discussion on this point.  The analysis has been conclusory, at best.  Courts typically write something like "we are bound by precedent in this circuit," without more.  Indeed, my initial research has found only one three-judge district court that has gone the other way, holding that, while certainly persuasive, it was not bound to follow circuit law as mandatory.

This minority view is correct if one thinks about the difference between superior and inferior courts.  Put simply, because the circuit will never review the decision of the three-judge district court, it is not a superior court to that three-judge district panel.  If it has no power of review, then its decisions cannot be binding precedent.  To be sure, its decisions are highly persuasive, but the only court that has binding authority over the three-judge district court is the U.S. Supreme Court.  That is the only court that could reverse the three-judge district court for not following its decisions.

Thus, if judges are bound by “higher” courts in the judicial hierarchy, than the converse also must be true: judges need not follow decisions of courts that are not directly above them. Indeed, this is the reason why one district judge need not follow the ruling of a prior district judge, and why one circuit court is not required to rule consistently with another circuit court.  (The prior panel rule within a circuit, however, cuts the other way. I will address why the prior panel rule does not change the analysis in a future post--or at least in the article that will come out of this analysis.)

In sum, the circuit court is not directly above the three-judge district court -- even though that court is a district court sitting within the circuit -- meaning that the circuit court's decisions are not binding precedent.  Although perhaps a seemingly minor problem, this analysis should change how three-judge district courts consider various issues that may arise.  It also has important consequences for the U.S. Supreme Court, which I will address later. 

Posted by Josh Douglas on February 9, 2016 at 01:36 PM in Civil Procedure, Law and Politics | Permalink | Comments (6)

Friday, February 05, 2016

Power or Participation? Consensus in Political Deliberation

How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.

The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.

We might think that fair procedures are ones that guarantee participation, but not influence. What matters is that authorities have a duty to allow participation, and convince participants that they are treated neutrally, respectfully, and as members of the same group, not that authorities must in practice so treat participants. We might think that while a fair procedure does not guarantee participation, it need not preclude it: a participative procedure would be one in which authorities and subordinates see each other as part of the same organization, with the same interests, and so would come to the same conclusions were everyone consulted. What matters most, however, is that the organization generate the right result, and that subordinates comply with that result. Because participative procedures maximize the likelihood of compliance, what matters is participation rather than influence or accountability (what we might call reciprocity). A version of this thesis can be found in Madison’s Federalist 10; and something like it has been described as unitary democracy by Jane Mansbridge. And it seems to be at the heart of procedural justice.

Consensus democracy is compatible with idea that authorities may be, for various reasons, justified in encouraging subordinate participation in the process of decision-making—giving subordinates a voice—while at the same time misrepresenting the amount of influence the subordinates wield in the process. If the goal is to ensure compliance or cooperation, and everyone would agree on the outcome if they were sufficiently well-informed and rational, then it does not undermine the subordinate’s interests in the right result that they are mistaken about the extent of their influence, particularly if they are more likely to reach that result without sanction (and, from the perspective of the authority, without expensive inducement).

But what of dissensus democracy, where there is no right result, or where there is a split authority (such as the tripartite structure of American government) or where the interests of the public conflict in certain ways with the interests of the government? Should we value compliance or cooperation with the authority and so accept as fair those procedures that more effectively produce these effects; or should we instead opt for a process that permits, not just participation, but also reciprocal accountability. That sort of procedure would not only require participation, but also power-sharing, among the members of the organization, or of the community, or of the country.

The debate is an old one, but it has practical urgency in the context of policing. The four-part procedure I described above—participant voice; authority neutrality, respectfulness, and beneficence—are the features of procedural justice which promise to reign in police use-of-force at the same time as more effectively ensuring compliance and cooperation than other methods, baed on inputs like law-abidingness, and outputs like crime reduction or even avoiding criminal sanctions. A core issue is whether compliance and cooperation with the police is a goal that we all share. For example, we have the right to terminate police encounters by walking away and refusing to answer questions; and even if arrested we have the right not to comply by declining to speak during an interrogation. Should we also have the right to challenge the police to justify taking us into custody or searching us by articulating their grounds for doing so? Should the police be dynamically responsive to our facts or reasons or can they ignore our input while still providing for our participation as a way of mollifying us and getting us to comply? Famously, police interrogations follow a two-part process in which the interrogator first determines whether the suspect is guilty or not (the unitary purpose) and then uses various psychological techniques to induce compliance, both at the waiver and at the confession stage of the proceedings. The technique is so powerful, studies show, that some suspects will not only confess, but actually convince themselves that their interrogator was right and they were mistaken about what actually happened.

How structure fair procedures to maximize participant power and participation presents difficult questions. Whatever the answer, procedural justice provides a fascinating account of the way in which the structural features of our interactions with authorities can have important psychological and behavioral consequences, consequences that are of deep democratic significance.

Posted by Eric Miller on February 5, 2016 at 12:24 PM in Criminal Law, Deliberation and voices, Law and Politics | Permalink | Comments (0)

Thursday, February 04, 2016

Who is making the 700,000 FOIA requests the government receives every year?

The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.

But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.

And the vision was equally important to Congress. The whole idea of a public records’ access law designed for journalists was that the news media could use the law to inform the public about government activities, thereby enhancing the public’s ability to participate in democratic governance and hold elected officials accountable. The legislative history of FOIA is replete with references for the need to have an informed electorate as vital to a democratic society.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

In my study, I focus on one group of these other requesters: commercial requesters. Commercial requesting has previously been poorly or only anecdotally understood, and I thus seek in my paper to document an in-depth account of how commercial interests are served by FOIA. To that end, I conducted case studies of particular agencies with significant numbers of commercial requesters whose data on FOIA usage I obtained by filing my own FOIA requests, and at each of these agencies I ended up studying, the amount of commercial requesting is very significant.

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I will leave you with those perhaps surprising statistics, and will elaborate in my next post on the various ways in which commercial entities are using FOIA as part of their profit making enterprise.

Posted by Margaret Kwoka on February 4, 2016 at 10:59 AM in Information and Technology, Law and Politics | Permalink | Comments (1)

Tuesday, February 02, 2016

Introduction

Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.

In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.

As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.

I am looking forward to the month!

Posted by Margaret Kwoka on February 2, 2016 at 11:07 AM in Blogging, Civil Procedure, Information and Technology, International Law, Law and Politics | Permalink | Comments (0)

Sunday, January 31, 2016

Donald Trumps the 22d Amendment

Do you think the makers Trump-plate_129363_240278_579x

 

 

 

 

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and wearers

 

 

 

have heard of the Twenty-Second Amendment?

Posted by Howard Wasserman on January 31, 2016 at 07:54 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

The Supreme Court, On Demand

It has become almost a yearly rite: Congress introduces a bipartisan bill to require television cameras in the Supreme Court. The Justices express their concerns about the proposal. High-minded words are exchanged about the dignity of the courts versus the public’s right to know. Eventually the bill dies in committee.

The traditional arguments for cameras, such as public interest in following high-profile cases, or general appeals to transparency, are unlikely to resonate with the Court any more this year than in years past. But there is another case for Supreme Court cameras, and it stems from the federal judiciary’s own highly successful cameras program in the district courts.

In 2011, the Judicial Conference of the United States authorized a pilot program for periodically recording civil proceedings in fourteen federal district courts.  The proceedings are then uploaded to the U.S. Courts website, where they are indexed and accompanied by additional information on the case. The entire process is conducted by the courts themselves, without media cameras or external video processing. The result has been a video library of hundreds of proceedings, ranging from pretrial conferences to summary judgment hearings to multi-day trials. The videos have been viewed hundreds of thousands of times.

The success of the district court pilot, which I explore in  much more detail here, offers an excellent blueprint for a parallel Supreme Court program.

First, as the district court pilot has shown, both practicing lawyers and ordinary citizens stand to learn a great deal from actually watching Supreme Court proceedings. Watching the Court in action educates those in the legal profession about procedures before the Court, the issues of particular interest to the Justices, and ways in which an attorney might capture the interest and attention of the Court. For the public, watching the Court in action is all the more important: rather than allowing journalists and comedians define the Court’s work after the fact, the public can go straight to the source. Many studies suggest that watching an event on video (whether delayed or through live streaming) carries many of the cognitive benefits accrued from watching a live event. Whether the public would take advantage of this educational opportunity in any serious way is an open question, but at least that opportunity would exist.

Second, a recording (and/or live streaming) program would bolster the Court’s public legitimacy, by openly demonstrating the court’s commitment to transparency and accountability. Public support for the Supreme Court has been hovering at or below 50% for much of the past decade. At the same time, the public is increasingly seeking information through screen time. Watching the Court in action can demystify the judicial process and reduce public reliance in the messaging of politicians, reporters, and editorial writers. Supreme Court Justices, like all federal judges, are public servants. If they are proud of their work, they should welcome public viewing.

Finally, it suggests how the courts can achieve these educational and transparency goals without relying on the news media—the primary public concern of the Justices. Just as cameras have been placed in unobtrusive locations within district courtrooms, and the final recordings made available on the courts’ website, so too can recordings of Supreme Court proceedings be made available on its website, accompanied by rich contextual matter. The Supreme Court can also easily provide live streaming of oral arguments and case announcements without threatening the dignity or solemnity of the proceedings. Indeed, it may avoid the alternative, John Oliver-style, treatments. If the Court really wants to have some control over its own message, it cannot close its eyes and ears to the realities of the twenty-first century.

At least, we can hope.

N.B. -- The district court program has been an excellent resource for my teaching, and I recommend it highly for others whose students cannot as a practical matter visit the courthouse to observe proceedings.

Posted by Jordan Singer on January 31, 2016 at 12:14 PM in Judicial Process, Law and Politics, Television, Web/Tech | Permalink | Comments (7)

Thursday, January 28, 2016

Ferguson consent decree

DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.

Posted by Howard Wasserman on January 28, 2016 at 01:04 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 25, 2016

More judicial departmentalism

A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.

First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]

Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.

Posted by Howard Wasserman on January 25, 2016 at 01:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, January 23, 2016

Show (audibly), don't tell

Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.

Posted by Howard Wasserman on January 23, 2016 at 05:52 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 13, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.

Posted by Jack Chin on January 13, 2016 at 11:16 PM in Immigration, Law and Politics | Permalink | Comments (34)

Sunday, January 10, 2016

Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.

[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.

1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.

Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.

[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.

4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?

Posted by Howard Wasserman on January 10, 2016 at 10:11 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, January 07, 2016

Speaking of judicial selection...

Arizona has a new merit-selected supreme court justice, Clint Bolick.  And he has a scorpion tattoo on his index finger.

Posted by Jordan Singer on January 7, 2016 at 09:54 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, January 04, 2016

The Last Days of Elected Judges (1966 edition)

Yes on 3

Happy New Year! It’s great to be back at Prawfs for another go-round. I thought I would start with an unusual find: while cleaning out my parents’ basement last month, I came across a yellowed but otherwise pristine copy of the Intermountain Jewish News, dated November 4, 1966. The IJN was (and is) a significant paper for the Jewish community in Denver and the Rocky Mountain West, and the edition I found was printed just days before the November 1966 general election—the last time that Colorado’s state judges would run for office. In that same election, voters passed Amendment 3, which ushered in a merit selection system: judges would henceforth be chosen by the governor from a slate prepared by a nonpartisan nominating committee, and subjected to retention elections at the end of their terms. Put another way, on Election Day 1966, Colorado voters chose their judges at the ballot box while simultaneously removing their ability to do so in the future. Fifty years later, that 1966 edition of the IJN provides a nice snapshot of a judiciary—and an electorate—struggling to balance a tradition of direct democracy with the promise of fair and impartial courts.

Colorado was the fifth state to adopt a merit selection system, and advocates of merit selection had to overcome both 90 years of state history (judges had always been directly elected) and the sense that nothing was particularly wrong with the existing system. There had been relatively little scandal or symptoms of crisis in the state judiciary in the 1950s and 1960s. Indeed, many of the men on the judicial ballot that November were widely viewed as persons of integrity, excellent jurists, and dedicated contributors to civic life. Sherman Finesilver, then seeking reelection to a state trial court position in Denver, would later serve nearly a quarter-century on the federal bench. Mitchel Johns was an active member of the local Elks lodge, and Saul Pinchick an active member of B’nai B’rith. Neil Horan, already an experienced incumbent, would survive the 1966 election and later preside over litigation concerning Colorado voters’ rejection of the 1976 Winter Olympics.

Pinchick

It was hard enough just to get merit selection on the ballot. The Colorado Bar Association (CBA) had recommended the end of partisan judicial elections as far back as 1940, when Missouri became the first state to adopt the merit selection system. But proposed ballot initiatives failed to make it through the Colorado legislature in 1949, 1957 and 1959. Still, support slowly grew. When yet another effort by the CBA failed in the legislature by one vote in 1965, the CBA and the League of Women Voters took to the streets and collected more than 47,000 signatures in favor of the ballot initiative. Merit selection, in the form of Amendment 3, would finally be up for a vote in 1966. It proposed sweeping changes to the Colorado Constitution, replacing direct election of judges with a system of nominating commissions, gubernatorial selection, retention elections, and formal judicial disciplinary measures.

The debate over Amendment 3 was vigorous and vocal in the months leading up to the election. Proponents urged adoption as a means of improving the overall quality of the judiciary, promising that judges would not be prone (or at least less prone) to the pull of partisan politics, and that nonpartisan nominating commissions could focus on finding the best people for the job. (Indeed, in a somewhat Pollyanna-ish take, proponents argued in the state’s 1966 voter guide that under merit selection, “The courts would be completely removed from politics.”) Opponents urged that citizens should not give up their right to directly choose judges, a method that both held judges directly accountable to the people and checked the influence of the governor on the judiciary.

The judicial candidates were caught in the middle of the debate. Amendment 3 was premised in part on the notion that elected judges were inferior to appointed ones. Candidates had to show that they were qualified and impartial, even as they had to work within the existing party system to have a chance at success. They walked this tightrope by tailoring their campaign ephemera for the most part to avoid any hint of politics--a strategy still used by judges even in highly partisan election states today. Only three of the ten candidates placing ads in that November 1966 edition of the IJN made mention of their party affiliation. Most emphasized only their professional qualifications: experience, professional skills, and ties to the local community.

Election Day proved to be a mixed bag for the incumbents. Justice Edward Day, a Democrat, was reelected to the state supreme court by the skin of his teeth, coming in third in the race for three open seats behind two Republican challengers. Justice Albert Frantz, who had each been elected in 1956 as part of a near-sweep by the Democrats, was not so lucky. He placed fourth in at-large balloting, just a few thousand votes behind Day, and lost his seat. The trial judges highlighted here—Pinchick, Horan, Johns, and Finesilver—were all reelected and became long-serving jurists.

Frantz

Amendment 3 also fared well on Election Day, passing by a margin of 53% to 47%. One key to victory for the merit selection proponents was the emphasis on retention elections: voters were not being asked to give up their franchise, but rather to exercise it in a different, ostensibly less partisan, way. It no doubt helped reformers as well that voters in 1966 reelected John Love, a popular and trusted governor, who would be charged with the final appointment decisions under the new system.

There are some useful lessons to be drawn from this history. Colorado’s shift in 1966 was certainly in part a product of bar association’s determination, the state’s political culture, and the era itself. But merit selection was also possible because it was presented as an integrated package of reforms. Nonpartisan selection commissions, gubernatorial appointment, retention elections, and a judicial discipline commission each provided a piece of the “quality judges” puzzle. (A final piece, judicial performance evaluation, was added in 1988.) Removing any of these components, or instituting them in a piecemeal way, would weaken both the appeal and the efficacy of the merit selection system.

The ghosts of 1966 may only live in basement files, but the issues surrounding judicial selection methods are far from settled. States continue to experiment with variations of contested judicial elections, merit selection, legislative appointment, and lifetime appointment. Nor is the federal judiciary immune from the larger discussion: Senator Ted Cruz recently called for retention elections—but only retention elections—for U.S. Supreme Court Justices. I will examine that idea more closely in a coming post.

Posted by Jordan Singer on January 4, 2016 at 01:41 PM in Judicial Process, Law and Politics | Permalink | Comments (4)

Sunday, January 03, 2016

Legislative Jurisdiction and Adjudicative Jurisdiction

I am late to writing about the oral argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which took place early in December; the case concerns the scope of tribal court jurisdiction in civil actions against non-Tribe members. There was a great deal of discussion of the difference between legislative (or regulatory) jurisdiction and adjudicatory jurisdiction and the connection between them. In particular, there was some question whether, if a sovereign possesses regulatory jurisdiction, it also has adjudicative jurisdiction over any claims for violations of those regulations.

Since the distinction between these two forms of jurisdiction is important to the jurisdiction/merits divide, I am curious to see what the Court has to say on the issue.

Posted by Howard Wasserman on January 3, 2016 at 06:13 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 02, 2016

Chief Justice Roberts on speedier civil litigation . . . and dueling?

Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.

It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.

Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.

Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.

Posted by Howard Wasserman on January 2, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, December 09, 2015

Does it matter?

Last week, Dana Milbank insisted that Donald Trump is a bigot and racist. His point is that Trump had crossed some line: "[A]t some point, you’re not merely saying things that could be construed as bigoted: You are a bigot." Put differently, "the large number of instances over an extended period add up to a pattern of bigotry." It is a label he will not place on any other candidate, not even Ben Carson, who has said similarly stupid things, just less often.

But does it really matter whether Trump is a bigot or just says bigoted things? Does the label really mean that much? Does it make him any less qualified for the presidency? Isn't it enough that he says anti-X  things and proposes anti-X policies; do we need the next step of saying he hates X to make the point? Is it that eighth instance of saying bigoted things--what pushes him over the line to "a bigot"--that makes the difference? Or can I know that I will not vote for him (and that no right-thinking person could vote for him) based on the first seven?

Posted by Howard Wasserman on December 9, 2015 at 11:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, December 08, 2015

Bell v. Hood lives

I am beginning to think of Bell v. Hood  the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."  The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy")  is a merits question, it should always be a merits question, regardless of the strength of the claim of right.

There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.

Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.

Posted by Howard Wasserman on December 8, 2015 at 05:21 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Technically . . .

I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."

This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.

It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?

Posted by Howard Wasserman on December 8, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)