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Saturday, January 14, 2006

A Good Week for the Republicans

I don't normally post more partisan observations, for a variety of reasons -- reasons which are only reinforced by the blogging discussion at the AALS conference.  But it seems to me this has been a great week for the Republican Party.  Although it will come back, of course, the Abramoff/DeLay/Ney/Project K story largely dropped off the front pages this week.  Congressman DeLay couldn't have timed his decision not to seek to regain his leadership seat better: it dropped into a Saturday/Sunday news hole, and was pushed aside by Monday to make room for the Alito hearings, at which the Senate Democrats did themselves no particular favors and for which the price of their obedience to Democratic-leaning interest groups was a front page photograph of a nominee's wife tearing up. 

Now, as a lawyer and legal scholar I fully appreciate the importance of the Supreme Court, even if it is often overstated.  But in terms of political traction, warmed-over discussions of CAP, or even of abortion, should pale next to the corruption story.  People of all political stripes have lots of reasons, both institutionally and morally based, to be upset at the Abramoff story and its full implications, which do speak to the corruption -- in ethical if not legal terms -- of the leadership cadre of a party in power.  Instead, we rehashed standard interest-group issues for a week, and with no measurable advantage to the Democrats, while both the corruption story and the NSA/presidential power dropped out of public prominence.  If for no other reason -- although there are lots of institutional reasons as well, in my view -- I hope the Senate Democrats impose enough discipline on their member to forego an attempt to tee up a filibuster. 

And I appreciate the value that interest groups such as NOW and NARAL have to the Democrats in the political process, but if I were running the party I would be seeking a Sister Souljah moment with those groups at least once a week, or better yet ignoring them altogether.   

Posted by Paul Horwitz on January 14, 2006 at 01:14 PM in Current Affairs | Permalink


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Judge Alito has shown that he respects and follows Supreme Court precedent and does not automatically rule for or against abortion laws (based on his own personal feelings whatever they may be). In fact, he invalidated a New Jersey ban on partial-birth abortion following the Supreme Court's ruling on a Nebraska law. He believed then it was the responsibility of judges to follow and apply controlling Supreme Court precedent. But, he does believe in strict adherence to the laws of the Constitution and will rule on that above all else. This, in my opinion, is what our country and the Supreme Court is based upon.

Posted by: Lola | Jan 19, 2006 9:22:25 AM

You are right on target, Laika. The Constitution has been all but tossed out the window. That's why I believe Alito will be such an outstanding justice. I think he will work hard to ensure that legislation is not presented, debated, and enacted from the bench. He has proven throughout his impressive career that he stands only by the rule of law and the Constitution. He deserves to be confirmed, and not just on party lines, but by senators like Feinstein who agree he is qualified yet try to politicize the process with their own person biases.

Posted by: redstaterep | Jan 18, 2006 7:58:20 PM

"... how has the world changed to support overturning Roe?"

I'm not sure that the world needs to change in order for the court to correct a mistake, but I would point out that Roe was something of a turning point in the history of judicial activism and that the subsequent usurpation of power by judges from legislatures has done damage to both institutions. (See Tenncare)

Overturning Roe would send a message that the courts are over-politicized and that they need to re-focus on issues of law -- narrowly interpreted with the understanding that if the people wanted to amend the Constitution they would do so via the amendment process.

"Do you disagree?"

Absolutely. Precedent biases in favor of ever-broader Constitutional interpretation. Precedent attenuates the signal-to-noise ratio of the original document, like making a copy of a copy of a copy. We have a Constitution; we should use it.

"So, what would meet that burden?"

Showing a decision to be closer to the text and intent of the Constitution than the precedent should suffice. Conversely if one decision is no closer to the Constitution than another that would give the precedent more standing.

My main concern here is that precedents effectively become Constitutional amendments when the Constitution is held subordinate to them. Amendments aren't supposed to be made up by 5 people in robes but by a difficult and cumbersome process which guarantees consensus among the people and the states.

The Commerce Clause has been wedged into everything by precedent-creep, and because of the power afforded to precedent, wherever a precedent sets foot government power never retreats. It's not that I even have anything against government power per se; I just think that power needs to be granted by the people and the Constitution, not by some judges who think it's a good idea.

Prohibition was enacted by Constitutional Amendment. The War on Drugs was enabled by an abstract impressionist interpretation of the Commerce Clause. Never mind that Prohibition didn't work, at least back in the 1920's people knew how to read the Constitution.

Posted by: Laika's Last Woof | Jan 18, 2006 2:35:30 PM

On that same note, regardless of Judge Alito's answers, Democratic Senators will find reasons they don't want to vote for him. His answers will never be correct to them because they've already decided he is too conservative for their taste. In fact, Senator Feinstein herself stated that she was concerned with his conservative record on abortion rights and deference to executive power, but acknowledged he has the legal credentials to serve on the Court. So, are his answers really that important anyway to those Senators who've decided the way Sen. Feinstein has?...

Posted by: LolaLA | Jan 18, 2006 11:53:23 AM

I would have to agree with Lola. And, in response to a comment made earlier by David, Judge Alito was actually more forthcoming with his comments than any other nominee since Bork in the 80's. He was even more forthcoming than now Chief Justice Roberts. I have to respectfully disagree with David's observations of the hearings, labeling Alito's answers as "evasive." If Judge Alito was "evasive" then I don't want to know what you would call Justice Ginsburg's answers when she was before the Judiciary Committee.

Posted by: Louise | Jan 17, 2006 11:46:14 AM

I think it is important to note that in the hearings Judge Alito explained he would approach such an issue as a Justice. He indicated he would look to stare decisis and if the analysis were to get beyond that point, then he would approach the question with an open mind and listen to the arguments made. Isn't this what we're expecting from a Justice or should they have a clear yes/no answer as the Dems on the committee requested. I believe this is the fair approach and all we should ask for.

Posted by: LolaLA | Jan 17, 2006 11:35:08 AM

Simon - I believe that if Roe were to be overturned, the pro-choicers would protest and petition just as much as the pro-lifers now protest. Neither, pro-life nor pro-choice protests should have any impact on a decision to overturn precedent.

Laika - No precedent is immutable, the world changes. But, how has the world changed to support overturning Roe? I do believe that the burden should be on the proponent of overturning precedent. Do you disagree? So, what would meet that burden?

Posted by: David Kleczek | Jan 16, 2006 10:15:56 PM

I believe Brown vs. the Board of Education made it quite clear that "settled law" and "precedent" are sometimes based on faulty judgement. That's why it is important to have judges, like Alito, that are able to examine the law as it is, without forcing opinions to be based strictly on past decisions, current popular opinion, or personal bias. Alito has proven time and again he is not an ideologue, but a public servant who judges on the side of law.

Posted by: redstaterep | Jan 16, 2006 8:52:14 PM

David Kleczek:

If "settled law" is defined as anything the Supreme Court decides and is immutable, how exactly does the Court or the nation go about correcting a bad decision?

Do you believe the Supreme Court is infallible, or that there is no decision that could possibly be bad enough to warrant its overturning?

Do you have any evidence that judges of the past are wiser than those of the present or future? If your answer is "no", why do you presume the authority of judges past to be absolute?

Posted by: Laika's Last Woof | Jan 16, 2006 5:22:25 PM

David:As Ms. Feinstein said, supreme court decisions are not popularity contests. Just because an issue is still a hot topic of debate in society does not mean that it is not settled law.That's an interesting comment. Does that mean that Democrats are going to stop attacking Roe's critics - as, IIRC, Feinstein attacked Alito - by saying that a majority of Americans want to retain Roe? I mean, you can't have it both ways: either it is of no relevance whether a majority like Roe or not, and thus, continued controversy over the decision is of no relevance to whether or not it is settled law, or it is of relevance that the majority of Americans favor Roe, but in which case, it is decidedly relevant as to whether it's settled law.

None of which, by the way, actually answers my question. You note (correctly, I think) that just because the public haven't offered unanimous consent, that doesn't preclude an issue from being settled law. But it doesn't really answer the question: what does make something settled law? In my view, public acceptance is not the whole story, but it is certainly a part of it, and although you're right that the flag burning thing is still somewhat controversial, I don't think the controversy over that matter even begins to compare to the three decade bonfire that has ensued from Roe. Johnson does not inspire thousands of people to march on the Supreme Court every year; in no Presidential election since it was decided has Johnson been a major issue; in sixteen years since the case was decided, no Supreme Court nominee has been asked at their confirmation hearings whether they think that Johnson is settled law, and AFAIK, no Senator has ever been handed petitions bearing the name of thousands of voters to vote one way or another on a nominee based on their stance on Johnson. To my knowledge, the ACLU does not operate a website called www.saveJohnson.com, and Jack Balkin has never published a book called What Texas v. Johnson should have said. I think that if you examined the Court's mailbag, I'd venture that they get less mail about Johnson and flag burning in an average year than they get about Roe and judicial usurpation in an average week.

So what exactly is it that makes a case that was wrongly decided as an original matter - or even one in which the decision was merely debatable "settled law"?

Posted by: Simon | Jan 16, 2006 5:09:59 PM

Well, Simon, I'll stick my neck out again. As Ms. Feinstein said, supreme court decisions are not popularity contests. Just because an issue is still a hot topic of debate in society does not mean that it is not settled law. You brought the topic of flag burning up, and that is a case in point. Every few years the issue is brought up to the forefront, but the fact is that one has a constitutional right to burn the American flag. That is settled law, but it does not settle well with the American public.

I fully - gulp - agree with you on the issue of the beliefs behind the policy. I do not believe an abortion is a moral choice, or even an option one should consider. But I do believe that an individual has a right to make decisions that affect their own body. Of course, there are limits - where it affects another. In this case, the life of the unborn, or the father - though the father issue has not been addressed. The problem is drawing the line - viability, or where? Thank God its not my choice.

Posted by: David Kleczek | Jan 16, 2006 4:37:45 PM

In short, we had extensive, robust and fair-minded discussions of the case and the issues it raised. I don't think any of us anticipated that, almost 30 years later, a judge who voiced his opposition to Roe (the case, not the policy) would - as the Dems would have it - forfeit his membership in polite society.That's a measure of how successfull Roe's defenders have been in conflating the case with the policy. Nobody actually reads the case any more: it's just become a codeword for one's views on abortion policy, which I think is both inaccurate and unhelpful. My views on Roe have about as much to do with my views on abortion as Scalia's vote in Johnson has to do with his opinion of people who burn American flags, which is to say, none. That I happen to be pro-life is entirely beside the point, and I cannot for the life of me fathom why anyone who genuinely believes abortion on demand commands widespread pulic support feels the need to rely on an explicitly countermajoritarian device such as a Supreme Court precedent, let alone one so transparently wrongly-decided and dangerous as Roe. See Trying to have it both ways on abortion, 10/12/2005.

I would be interested to hear from the people who defend Roe a response to my post above, as to what it takes for a decision to be "settled law," and how a decision like Roe can possibly be described as such when it remains bitterly divisive and controversial some thirty years plus after it was decided, and when it continues to corrupt virtually every aspect of politics and many aspects of law. What exactly does it take for a case to be settled law; is the set of assumptions I proposed for why Miranda is settled law wrong, or simply incomplete?

Posted by: Simon | Jan 16, 2006 2:55:37 PM

... to suggest and highlight that the dems are unlikely to be able to make much of "bad government" themes.

I agree; remember what happened when Republicans tried to make the 1998 elections turn on corruption in the Clinton administration? The public yawned.

This liberal v. conservative attitude is part of the problem facing this country. Why do 'conservatives' feel the need to impose their moral views through laws?

The hypocrisy in this statement is just staggering. It was exactly the desire of "liberals" to "impose their moral views" that led to usurpation of the democratic process by the Supreme Court in cases like Roe.

Posted by: mariner | Jan 16, 2006 2:49:54 PM

I went to law school in the late 70s, perhaps five years after Roe was decided. Although a substantial minority of the class was opposed to abortion generally, most of us were in favor of permitting first trimester abortions. Almost no one, however, believed that the case was rightly decided as a matter of constitutional jurisprudence.

Much of our discussion, I believe, centered on the limits of the court's ability to make stuff up, including such issues as whether the courts could only make up a right or whether they could properly make up a restriction on the exercise of a right (cf. campaign finance). We also discussed the federalism aspects of Roe: why a uniform Federal rule should be required for abortions but not for so many other things (having heard about back alleys and coat hangers I was amazed to learn that my native New York already had a very liberal abortion statute on the books).

In short, we had extensive, robust and fair-minded discussions of the case and the issues it raised. I don't think any of us anticipated that, almost 30 years later, a judge who voiced his opposition to Roe (the case, not the policy) would - as the Dems would have it - forfeit his membership in polite society.

Posted by: ronbo | Jan 16, 2006 2:39:59 PM

Americans should learn to think for themselves, take positions on topics, rather than polerize their rosey colored image of the United States by putting everything into one of two catagories.Interesting that you're arguing that "Americans should learn to think for themselves, take positions on topics" while defending a case which specifically denies the ability of Americans to think for themselves on an issue, reach differing conclusions, and implement them into law at the state-by-state level, David.

Posted by: Simon | Jan 16, 2006 2:14:27 PM

Ken - what are the compelling reasons to overturn Roe v. Wade? Unless your arguing there were no compelling reasons to overturn Plessy.

Simon - your really hate the liberals. This liberal v. conservative attitude is part of the problem facing this country. Why do 'conservatives' feel the need to impose their moral views through laws? And why do the 'liberals' insist on imposing social obligations through laws? Between the two groups, everything will be regulated. Americans should learn to think for themselves, take positions on topics, rather than polerize their rosey colored image of the United States by putting everything into one of two catagories. Some of Bush's actions are good for the country, others are not.

Posted by: David Kleczek | Jan 16, 2006 1:15:18 PM

I'll start caring about Abramoff as soon as people start discussing term limits. Until then, I'll turn my interest somewhere else, and leave the probe to the prosecutors.

Posted by: John Davies | Jan 16, 2006 11:11:30 AM

Dr Ken-Roe is not going to last forever. When overturned, will the overturning decision be the settlede law of the land?Don't be silly, Ken. No law is settled law until it's settled the way that liberals like (unless, of course, they later change their minds, that is - cf. Lochner v. New York with Roe v. Wade), and then - and only then - it's a "super-duper precedent", protected by the inexorable commands of stare decisis and majority support. Bowers wasn't the law of the land, because it was wrongly decided, but needless to say, Lawrence must be accorded the same precedential weight as Marbury, it's the law of the land because it was correctly decided. Sheesh, don't you know anything? ;)

Posted by: Simon | Jan 16, 2006 11:06:24 AM

So, David, I guess Plessy v. Ferguson was the settled law of the land, too, right until it was overturned. Come up with a better argument. Roe is not going to last forever. When overturned, will the overturning decision be the settlede law of the land?

Posted by: Dr Ken | Jan 16, 2006 11:00:08 AM

I am old enough to remember that liberals in the 60's and 70' thought precendence was a horrible thing, as it got in the way of the courts righting historical wrongs. 'Bad law is bad law', they used to say, 'and the courts need to be brave enough to stand up and do what is right.' Very different attitude now. For some laws.Yes, and now when confronted with a jurist like Clarence Thomas, who takes the "bad law is bad law" approach, the same liberals decry him as "an embarrassment to the Supreme Court". The liberal commitment to stare decisis is, of course, entirely transparent; no liberal complained when Atkins and Roper overruled Penry and Stanford, and no liberal complained when Bowers was overruled by Lawrence. This is yet another example of the corrupting effect of Roe: nobody - literally, nobody - actually believes that stare decisis is an inexorable command, least of all the Democrats. Instead, in the mind of the public who don't know better, stare decisis has become a codeword for abortion, precisely because that is how the Democratic leadership constantly uses it: will the nominee overrule one particular case? Both sides must tiptoe through a minefield, the Democrats more so, because in their (and, to be fair, the nominee's) unwillingness to deal with Roe head on, they must engage in a hypocritical dance, demanding respect for one precedent without saying its name.

Both law and public discourse would be better served by actually having the debate: Roe was a ghastly decision, and it does not logically follow that one who is pro-choice must be pro-Roe; it only follows that one is pro-Roe if one has no confidence whatsoever in the ability of abortion on demand to command a majority. Conservative legal types - almost to a man - believe Roe was wrongly decided; we should say as much and say why, instead of implicitly surrendering that ground to those who defend the usurpation. Adequately put by Verity from Southern Appeal:Just say it! Alito's writings indicate that he believes Roe was wrongly decided and indicate that Roe should be overturned. Stop the hedging, rationalizing, and discounting of everything Alito has said. Just say it: Roe should be overturned. Roe was wrongly decided and for over thirty years it has created havoc by allowing five people to decide a policy question that should be left to the democractic process. Address the merits. Educate the public. And stop hiding behind the "that was 20 years ago, when he was an advocate," panty-waste cop-out.

Posted by: Simon | Jan 16, 2006 10:59:55 AM

Abramoff/DeLay/Etc is off the headlines permanently. I suggest that temporary removal was due to Alito, and permanent due to fact that the list of Abramoff recipients includes a lot of Democrats (about a third of them,I think).

Most of the leftish blogs have let go too.

Posted by: Gomez Addams | Jan 16, 2006 10:59:38 AM

It is curious how you can identify liberal vs. conservative these days less by the commitment to the adherance to the concept of precedence than by which specific rulings they think deserve precedence.

I am old enough to remember that liberals in the 60's and 70' thought precendence was a horrible thing, as it got in the way of the courts righting historical wrongs. 'Bad law is bad law', they used to say, 'and the courts need to be brave enough to stand up and do what is right.' Very different attitude now. For some laws.

Posted by: AustinRoth | Jan 16, 2006 10:27:06 AM

The Constitution includes no right to abortion, and if it did, Roe and its progeny would have actually cited that right, instead of going to inordinate pains to try to make one up. I've written in the last couple of weeks that the Supreme Court's decisions constitute binding precedent as far as lower courts are concerned, and for their purposes, the pronouncements of the Supreme Court are accorded the weight of the Constitution; they are, however, not the Constitution, and should not treated as such in any other context.

You offer the "settled law" defense. David, in my view, the idea that Roe v. Wade, is "settled law," frankly, becomes absurd as soon as you try to define "settled." Is Miranda v. Arizona "settled law"? I don't want to suggest that I've been seduced by the fallacious (but oft-repeated) idea that the Chief Justice thought so in Dickerson, but I do want to suggest that if we are to offer a model of settled law, Miranda might be it. As an original matter, I don't think it's entirely clear that the Constitution requires the result in Miranda, but the opinion was not entirely bizarre; the opinion makes a good case for itself; it is, in fact, a doctrinal ruling that attempts to give effect to an actual Constitutional right; and in terms of public acceptance, several decades later it is seriously challenged by virtually no one, and is certainly not generally controversial, either in the academy or the public at large. You can make a good case, on this basis, that Miranda is settled law, and thus, that Dickerson was correctly decided.

By contrast, using the same rubric to evaluate Roe, it is instantly preposterous to suggest it is similarly "settled law." As an orignal matter, a blatantly wrongly-decided case (not least because the merits should never have been reached); the legal analysis in the opinion is, literally, non-existant, as everyone up to and including its author admit; it is premised upon a Constitutional right that flat-out doesn't exist; and in terms of public acceptance, it was controversial from the moment it was handed down, and far from being less controversial now, it has grown more poisonous and controversial with every passing year. On top of that, every single supreme court confirmation hearing, every Presidential election, every Senatorial election and two generations of political discourse have been corrupted and poisoned by an unconstitutional, pernicious, blatant and - even in the eyes of many pro-choice liberals - utterly unnecessary act of judicial usurpation. If if Roe is settled law, I'm a banana.

Posted by: Simon | Jan 15, 2006 10:58:53 PM

Simon - The constitution does guarantee the right to an abortion. That is what the supreme court has already said. Your suggestion that Alito will change constitutional rights suggests that you believe the Supreme Court can make decisions without regard to precedent. Maybe we should revisit the reduced expectation of privacy in ones car. That was a bad decision. Maybe we should revisit a corporation's right to freedom of speech through campaign contributions. That was a bad decision.

No, these are decisions with precedential value. Only a compelling reason would justify changing the constitution. Remember, the constition is as the supreme court interprets it. Roe v. Wade has precedential value, and should be treated the same as any other case.

The problem with Alito is not Roe v. Wade. He even knows that it would exceed the bounds to overturn it. He sits as the tryer of fact. Read his decisions, listen to him speak. He inserts his opinions as to what he believed happened, and sits as the jury. That is why his answers were cursory. He could not, and did not explain how issues of fact did not exist in many of his decisions affirming summary judgment. He feeds the culture, which allows lazy judges to dismiss cases. They know jury trials will make them work from 8:30 to 5. Law clerks can write summary judgment decisions.

Your comments that free coffee and healthcare represent constitutional rights are without merit, and need not be addressed in this opinion.

Posted by: David Kleczek | Jan 15, 2006 8:57:41 PM

While most in the media tout the confirmation hearings as a success for Mr. Bush, I could not disagree more. Mr. Alito appeared evasive and his answers were cursory and conclusive.I think that you are evaluating the hearings using a different metric. When people in the media - and probably Paul as well - say that the hearings were a success, they mean, because the Democrats scarcely laid a glove on Alito, and he is therefore almost certain to be confirmed. Surely you aren't suggesting that you couldn't disagree more that the hearings were successfull from Bush's standpoint of getting Alito confirmed?

I actually disagree on your point, at face value, as well. While Alito certainly refused to answer certain specific questions, I think it's almost absurd to suggest that his answers were cursory (a quick glance at the transcript debunks such a claim) and he came across as evasive in only one instance, when asked point-blank about whether the Constitution reflects a right to an abortion. I don't think I'm alone in having been ready to scream at my monitor "just say it man! say it! The N word! SAY IT! Say the word No!", because I think a lot of people agree that these hearings are preposterous and we'd all be a lot better off if the nominee could just be honest and say that of course there is no right in the Constitution to an abortion, any more than there is a right in the constitution to free healthcare or a daily cup of coffee. But this is simply not possbile, because that's the prevailing climate. In my view, the GOP should be working to change that instead of playing to the Democratic tune, but such is life.

Posted by: Simon | Jan 15, 2006 4:21:56 PM

While most in the media tout the confirmation hearings as a success for Mr. Bush, I could not disagree more. Mr. Alito appeared evasive and his answers were cursory and conclusive. He has eroded laws designed to prevent discrimination. He takes issues away from the jury by affirming summary judgment where issues of fact exist. Federal judges love summary judgment these days. They bend over backwards to ignore issues of material facts, just as Judge Alito does. His nomination will only further deny the common man his 'day in court'.

As to the abortion issue, I do agree that the dems did not do themselves a favor with their diatribes - cloaked in the guise of "hearings". It appeared that the democrats appeared crass, and may have shot themselves in the foot, but that does not equate to a successful hearing for Alito. One must look at what HE said, and how HE responded. The measuring stick you are using is what the democrats said. That is not the proper measuring stick.

Posted by: David Kleczek | Jan 15, 2006 2:43:00 PM

I appreciate the point, and if you said voters don't necessarily care about process issues generally, I'd agree with that. But it seems to me that corruption issues, if they reach a critical mass, can have traction, and that this was one lesson of the 1994 midterms. Your run-of-the-mill corruption story might not play out in a big way, and it may be that the House Bank scandal played out in a more politically damaging way because it had features voters could relate to in a personal way, ie. check overdrafts, but without making too much of the current saga, I think it is more likely to garner voter attention than some typical scandal of the week. I may, as usual, be wrong.

Posted by: Paul Horwitz | Jan 14, 2006 2:01:39 PM

Paul, I think you overstate the extent to which the electorate really cares about corruption or presidential over-reaching. I think the typical voter these days essentially assumes that most politicians are subject to influence by monied groups and that most will forgive power grabs if they believe the power is to be exercised "for the right reasons."

I make these comments not to dispute that the dems did not help their causes in the Alito hearings, but rather to suggest and highlight that the dems are unlikely to be able to make much of "bad government" themes.

Posted by: Doug B. | Jan 14, 2006 1:47:15 PM

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