The College Years of Justice Thomas

An extraordinary interview in Business Week with Justice Thomas, focusing on his college years, his activities, the truth behind the meme that he himself is a product of affirmative action, and more. A sample:

Why do you think some people are so eager to cast you as a beneficiary of affirmative action?
That was the creation of the politicians, the people with a lot of mouth and nothing to say and your industry. They had a story and everything had to fit into their story. It discounts other people's achievements. Ask Ted how many all-nighters he pulled. It discounts those. It's so discouraging to see the fraudulent renditions of very complicated and different lives of people who were struggling in a new world for them. Everything becomes affirmative action. There wasn't some grand plan. I just showed up.

Read the whole thing. The more I read and learn about this man, the more respect I have for him.

Public Funding for Judicial Elections

I missed last week's lawyer's chapter event on money in judicial elections, but yesterday's Seattle Times had a piece by Bruce Ramsey discussing it - and the topic at large.

Seattle attorney Jenny Durkan spoke for the bill at a recent meeting of the Federalist Society, arguing that all the mudslinging undermines the public image of an impartial court.

Ah, yes. "Mudslinging." Yet another way to say "mudslinging" is "stuff that may be true and relevant but makes my guy look bad." And still another way to pronounce "mudslinging" is "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Up for discussion was a pending proposal in the state legislature to allow public funding for those elections, supposedly because they would then be more high minded, less "political," and would allow each side to look "impartial." Whatever that means. According to Ramsey:

Under this proposed system, if you were an unknown figure challenging a sitting justice, you would essentially be forced to file as a private-sector candidate. You would raise your own money. When your spending topped $84,836, for every additional dollar you spent, the government would cut your publicly funded rival (or rivals) a check for the same amount. If you spent $50,000 on a fundraiser that grossed you $60,000, it would be a gain of $10,000 for you, but your opponent would bank a $50,000 check, because that is what you spent.

If a group friendly to you spent $100,000 to slime your government-financed opponent, your opponent would get a check for $100,000. If a group friendly to him did that to you, you would get nothing.

The government would match the spending on your side up to $678,691 in the primary and the same in the general election, if there remained a contest. Your opponent could continue collecting beyond $678,691 if there were any money left, and if there weren't, he would be freed to solicit his private donors. By that time, your private donors might be tapped out.

This, of course, solves none of the "problems" that are being complained about. Mud would still be slung, sides would be taken, "private money" and "special interest groups" (i.e., politically astute and engaged citizens exercising their Constitutional rights) would still spend hundreds of thousands of dollars. Washington Supreme Court Justices would still be linked to the people and groups who endorsed, supported, and funded their campaigns.

That's democracy. And democracy isn't a "problem" I want to "solve."

What this is really about, of course, is that liberal members of our liberal court actually had to fight for their seats last November, and there were real discussions about issues of judicial activism, the role of the high court, and the extraordinary power of the Justices. And liberals like Durkan and state Senator Oemig (sponsor of the "reform") don't for a second want their hold over the judiciary to be even threatened to be threatened by some moron redneck out in Moses Lake who doesn't even listen to NPR. The concern over the horrors of actually allowing campaigns to influence voters has nothing to do with methodology and everything to do with content of political speech and ideology.

Personally, this is why I think judges should be appointed by the Governor. No judge who must stand for election and re-election can truly look "impartial." The way to insulate the judiciary from political influence is to not let them be politicians. Otherwise, we simply elect a redundant Super-Legislature increasingly signaling their willingness to use their power to mandate their personal policy agendas.

So long as we vote for judges, the state judiciary will be a political (even if remaining officially non-partisan) branch of the government. For better or worse, the people of this state have chosen a political method for checking the power of the judiciary. Until we amend the state Constitution, we need to accept that method of accountability, with all the warts that go with it - including all those dirty, biased, and very partial exercises of our First Amendment rights.

SCOTUS: The Movie?

Senator Arlen Specter has once again introduced legislation to put cameras in the Supreme Court, citing the increased willingness of Justices to speak with the media.

I think it's a bad idea. It's not as if the transcripts of oral arguments are unavailable, or spectators excluded, or the reasoning of the Justices concealed. But it would mean that video clips would be shown - necessarily out of context due to time constraints - nightly on the news. And lawyers may attempt to play more to the audience at home than to address the specifics of the legal questions to the judges. In how many political ads might an out-of-context reducto ad absurdum hypothetical posed to an attorney appear?

And frankly, I think any courtroom cameras invite a profound collapse of dignity. Think Judge Judy. Or the OJ trial.

Limiting the public access to either live attendance or easily available transcripts limits the contextual problems unique to video without sacrificing transparency - or dignity.

Other thoughts?

Candidates, Judges, and Social Conservatism

There is a lot of discussion surrounding the two GOP Presidential front runners (if such a thing can exist 21 months away from an election) about their conservative bona fides. For John McCain, this relates mostly to his assault on political speech, opposition to tax cuts, and his amnesty-esque stance on immigration. For Giuliani, it has to do with his checkered love life, support for civil unions, gun control stance, and pro-abortion views.

But do these things matter? What do conservatives really want - and what do they really need - from a President?

Ultimately, it comes down to judges. A president's personal views on abortion are less important to abortion foes than his willingness to appoint judges and justices who understand Roe v. Wade is a terrible abuse of judicial power and needs to be overturned. The executive's inclination toward gay marriage or even civil unions is far less relevant than his understanding that the Constitution doesn't require those outcomes via the Fourteenth Amendment. The fear is that the social liberal will, in order to protect his or her policy preferences, are willing to appoint judges who are willing to flex and stretch the Constitution to fit those notions, whether the Constitution actually applies or not.

I've always been worried that a President McCain, when interviewing judges, will sit them down and say, "Here's the thing - campaign finance reform is my baby. You aren't going to consider any part of McCain-Feingold (or anything subsequent I do to make it even tougher) unconstitutional, are you?" While it certainly can be fairly said that there are too many lawyers in government, one of the downsides about not having a legal education is not fully understanding how judges fit into the conservative scheme. And that leads to nominating Republicans (like Souter, Kennedy, O'Connor, and Harriet Miers) instead of conservatives - not exactly a formula for consistent or conservative jurisprudence.

What's more, I haven't heard anything from McCain about judges. What kind of justices will he appoint? What does he look for in his potential appointees? What is his understanding of the role of judges in the Constitutional scheme?

Giuliani, on the other hand, is an attorney. And he's correctly downplaying his more liberal social views and talking about what kind of judges he'll nominate. As he recently said in South Carolina,

On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible.

President Bush has the great model because I think as the President he did appointed some really good ones and both of them are former colleagues of mine - Chief Justice Roberts and Justice Alito. Justice Scalia is a former colleague of mine. Somebody that... I think Chief Justice Roberts is a great chief justice and he's young and he can have a long career and that's probably the reason the President and Vice President chose him. I think those are the kinds of justices I would appoint -– Scalia, Alito and Roberts. If you can find anybody as good as that, you are very, very fortunate.

I think voters - especially Republican primary voters - are smart enough to understand the balance and tension between personal social views, the role of the judiciary in social issues, and which is more important. (Indeed, I believe the failure to make this a campaign issue last year likely cost the GOP control of the Senate.) The question will be who broaches the subject the correct way - or at all.

In Defense of Justice Thomas

For all those who want to know the truth behind the most-snickered-at-Justice-in-any-law-school-class:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive--and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity.

Read the whole thing.

What Are the Justices Saying Off the Bench?

Here's a very interesting piece in Slate about the increased press time our Supreme Court Justices are willing to engage in, and what they are - and, more interestingly, are not - willing to talk about.

I think it's good - the more the public understands the difference between judicial philosophies, the more likely they are to make an informed decision when they vote for the person who appoints judges, or the Senators who confirm them. Or, for that matter, when they vote for judges in the several states. (Moreover, I think that debate favors a more conservative, humble judiciary, but even if it didn't, more information for voters is usually better.)

But the pitfalls of loose-lipped jurists certainly exist, and are worth a pause to consider. Any other thoughts out there? Does increased time before the cameras risk increasingly politicizing what is supposed to be the non-political branch of government?

Money in Judicial Elections - Lawyer's Chapter Event

THE PUGET SOUND LAWYERS’ CHAPTER

of the FEDERALIST SOCIETY

cordially invites you to a panel on:

Money and Politics in Washington

Judicial Elections

Moderated by:

The Honorable Richard Sanders – Justice, Washington State Supreme Court

Featuring a distinguished panel:

John Groen – Former Candidate for the Washington State Supreme Court and Partner, Groen, Stephens, and Klinge, LLP

Charlie Wiggins – Partner, Wiggins & Masters, President of the Washington Chapter of the American Judicature Society, and former Court of Appeals, Division II Judge

William Maurer – Executive Director, Institute for Justice Washington Chapter

Jenny Durkan – Office of Jenny A. Durkan, Co-Chair of Citizens to Uphold Constitution

Monday, February 12, 2007

6:30 p.m. to 8:30 pm

The Washington Athletic Club

1325 6^th Avenue

Seattle, WA 98101

$25.00 (includes hors d’oeuvres and hosted bar)

*CLE Credits Pending

RSVP

Diana Kirchheim at 425.453.6206 or dianak@gsklegal.pro

Breyer vs. Scalia: The Movie

Here's the video of the ACS/FedSoc Breyer/Scalia discussion I blogged about yesterday, available in either full video or just the audio.

Scalia and Breyer, Head to Head

This is just good stuff:

Scalia is charming and, —as ever, —riotously funny. For each time Breyer says his own constitutional approach is "complicated" or "hard," Scalia retorts that his is "easy as pie" and a "piece of cake." And if this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."

A fun look at some good - and illuminating - banter and philosophy behind the bench.

Scalia and Alito at the Federalist Society Convention

C-Span has video (real player) of Scalia and Alito at the recent Federalist Society Convention. Interesting stuff ...

Advice and Consent of the... SenatOR?

I don't know if it's just bad writing from a non-legally trained New York Observer journalist, but "Exultant Chuck [Schumer] Says He'll Veto the Next Alito" is either a grossly inaccurate headline, or reflects a poor grasp of the Constitution by the senior Senator from New York.

The bad writing/unconstitutional usurpation continues:

"Judges are the most important,"” said Mr. Schumer, who orchestrated the implausible Democratic takeover of the Senate last week. "One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won'’t happen."

From now on, all the President'’s judicial appointments will need to meet the requirements of Mr. Schumer, the Park Slope power broker who has happily accepted the mantle of chief architect for the Democrats'’ effort to build a majority for the 2008 elections and beyond. (emphasis added).

The Constitution vests no veto power in an individual Senator. (It doesn't even vest it in the Senate as a whole.) It is the Senate as a body, not a single Senator (no matter how powerful) who gives only their "advice and consent." And it is the President, not the Senate, who was elected in part because the people preferred his judgment on judicial nominations. Judicial nominations weren't even really an issue (to the detriment of the GOP, in my opinion) in this election. Just as Republicans voted unanimously for Ruth Bader Ginsberg, a qualified jurist properly nominated by the President who was known to have a judicial philosophy conservatives didn't agree with, the Senate should be mindful of their secondary role in this important process. To do more is to usurp Executive authority the Congress is denied by the Constitution.

Interestingly, Schumer also announced that he will make sure "New York will soon be 'disproportionately' enjoying the spoils of last week's victory," and used the opportunity to peddle his book about building a permanent Democratic majority.

It's ironic that this was the reaction of a man who directed the Democratic takeover by running very socially conservative Democrats, attacking (rightly) Republican "earmark" abuse, and pointing out (also correctly) that one party rule for too long leads to arrogance and corruption of principles.

When Congress (or either if its chambers) begins adopting executive power, the balance of our system is lost. The founders vested complete executive authority with the President (as opposed to limited and enumerated powers with the Congress) for a reason. If Chuck Schumer wants that kind of power, he should at the very least stand for election as a Presidential candidate so he could exercise it legitimately. I'll remember this next time I hear liberals complain about "shredding the Constitution."

Can Conservative Judges Still Be Confirmed?

After the war, this is my biggest concern about the new political order. But Edward Whelan argues that strong conservative Judges and Justices can still be confirmed:

Skeptical? Consider the last Republican appointee to the Court to be confirmed by a Democrat-controlled Senate — Clarence Thomas in 1991. That Senate had 57 Democrats and only 43 Republicans, and the swirl of allegations gave Democrats plenty of cover to vote against the nomination. Still, 11 Democrats voted for Thomas, and he was confirmed by a 52-48 margin.

A lot has changed since 1991, but the changes cut in both directions. The Democrats have gotten more unified — and nastier — on judicial confirmations since then, but the high-profile politics of a Supreme Court nomination enhances the case for confirmation of a strong pick. Opponents can’t rely on obscure procedures to block the nomination. They need to make their case openly, and in the Internet age, unlike with the 1987 nomination of Judge Bork, their distortions won’t go unanswered.

More importantly, the conservative case against liberal judicial activism has powerful public appeal across a broad swath of the political spectrum. Opponents of a strong nominee will have to be ready to pay a high price for their opposition. Plus, President Bush, having appointed two white males to the Court, still has the diversity card to play, so a nominee who is a committed proponent of judicial restraint and also a female or a minority would have added political punch.

Here's hoping.

Justice Scalia at 20

"Indeed, Scalia's tenure on the Court may be understood as an exercise in standing athwart history yelling stop--athwart the decades-long succession of cases by which the judicial power was transformed and the justices became lawgivers. During his confirmation hearing in 1986, Scalia told the Senate Judiciary Committee, "My only agenda is to be a good judge." It is clear in retrospect--if it was not at the time--that "a good judge," to his mind, was not the sort that had often preceded him to the High Court."

Well said. Read the Weekly Standard's whole piece.

I think Chief Justice Roberts and Justice Alito will be better - more consistent, more humble, and less caustic. And I think Chief Justice Rehnquist truly deserves the most restorative trailblazing credit. But Justice Scalia's efforts have made the ascendancy of a more restrained and conservative judiciary possible. Without him, I don't know that we have a Roberts or an Alito, and I think Justices O'Connor and Kennedy would have "evolved" much more than they did.

Justice O'Connor's Disappointing Speech

Saturday night I was lucky enough to have been selected in the lottery to hear retired Associate Justice Sandra Day O'Connor speak to honor the Gates Public Service Law Scholarship. Sadly, while her speech was quite good in a technical sense (entertaining, geared towards her audience, not interminable), the content was surprising and disappointing.

Because the entire point of the event was to push a public service scholarship program, she tailored her remarks to that subject. That in and of itself is commendable - all too often a famous speaker will simply give their stock speeches and not take the time to consider the people who have come to hear them.

But Justice O'Connor spoke of encouraging public service as a civic virtue, and that we should be doing everything we could to get more people to work for the government. She lamented that so many law students are "forced" to go work for firms because of their overwhelming student loans. She cited numbers that showed the average law student graduates with a loan burden of around $15,000, and then said she thought that was low because her law clerks were looking at closer to $50,000. She even suggested that it was too bad the non-profits were stealing the talent away from the public sector.

I was frankly shocked. I kept thinking, "How is this a Ronald Reagan appointee?"

With due respect to the Justice, it's just wrong that government jobs are the only - or even the best - way to serve the public. Frankly, more people in government is the LAST thing we need! Private attorneys do mountains of charitable work, mostly in the form of providing pro bono legal services. As Bill Gates, Sr. himself proves, one of the ways to have the biggest impacts is to make a boatload of money in the private sector first, and then get all charitable with your time and money. And even the stingy and selfish in the private sector do more to help the public than they were given credit for, just for the fact that they create jobs, help our vibrant economy grow, and aren't relying on the taxpayers for their salaries and health benefits.

With the possible exception of public defender's offices, I find it hard to believe that any government legal positions are really that hard up for applicants. The pay may not be as good, but the benefits and job security are unmatched, and most public sector attorneys work much saner hours than those who slave away at firms.

And as tough as they are, law school loans - especially at our low cost school - are just not an unreasonable burden considering the return-on-investment a J.D. provides. You just don't see a lot of attorneys living in vans down by the river. Even a career public defender can (with some smart investing), live and retire quite comfortably.

The one government/public service sector that was notably absent from her comments was military service. It's also notably absent from the Gates Public Service Scholarship winners, and I have a feeling it will be overlooked in the future, too. Why is a commitment to public service shown more in liberal activist groups like "California Peace Action," abortion advocacy organizations, or the ACLU than after a tour in Afghanistan? Which person has actually had a more significant impact on world peace and justice, humanitarian efforts, and introducing democracy - and at greater personal risk than suffering an extra few years of loan repayments? I have a feeling it simply never crossed the committee's mind. And that's sad.

The man giving the intro spoke strongly about the Justice's commitment to "justice," citing her protection of affirmative action, expansion of substantive due process, and making "principled" decisions as opposed to the ones she was "supposed to make." But whatever the virtues of those policy goals may have been, I wished she'd pursued them in a legislature where they belong. Our ideas of what make a principled jurist are clearly different.

I've always felt in reading Justice O'Connor's opinions that, while I agree with her votes more often than not, she's always been a policy maker on the bench. Saturday's speech drove that point home perfectly. I'm glad she was able to make the time to come speak, and that the event planners made so much room for law students - it's always fascinating to hear what such a powerful person has to say (not to mention the phenomenal food!). But I'm equally glad Justice Alito has replaced her on the High Court.

"It so happens that everything that is stupid is not unconstitutional."

Justice Scalia said that beautiful little truism earlier today during an appearance with fellow Justice Samuel Alito.

I think much of the press - if it notices the event at all - will probably focus on his statements about the "independence of the judiciary" not being an unqualified good thing, leaving the context out, of course. Here's more greatness:

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

I hope Justice Owens was listening...

Naked Judicial Elitism on the Washington Supreme Court

In the Seattle Times, State Supreme Court Justice Susan Owens elucidates her respect for the wisdom of the people to choose their government, and by extension, democracy itself.

Johnson and other critics say Owens' position in both cases is proof that she is a liberal "activist" judge who is too willing to decide policy matters that should be left to the Legislature.

But Owens suggests there are times the court has to play such a role.

"The Legislature is really behind the times socially," she said during a recent interview with editorial writers at the Yakima Herald-Republic.

Wow.

The Legislature defines where we are socially, because they represent the "social" body that is our entire electorate. Who is she to say who's "ahead"” or "“behind"” that? And even if we are "behind,"” that'’s explicitly not the role of the judiciary to make those changes. This is tyranny of the elite stripped bare for all to see.

It's ironic that liberals are wailing and gnashing their teeth over conservatives "buying" seats on the Supreme Court, just because they dare to fund and run a competitive campaign. Do you think Owens' financial support from gay-activist groups had anything to do with her extra-legal votes in In re L.B. or Andersen v. King County? Nah... Not that I'm blind to the probable influence the BIAW would have on Johnson (among many reasons I think judges should be appointed), but at least he's not openly advocating judicial policy making. And frankly, I contend that the BIAW and Johnson's other bi-partisan supporters (as opposed to Owens' exlcusively liberal ones) support him because they know that the statutes as writen and the popularly elected legislatures that enact them are already on their side. All they need is a Justice who will follow the law instead of her predetermined policy predilictions.

The Post-Intelligencer calls the "legislating from the bench" attack a "slur" that threatens a "fair, impartial and independent judicial system." But Justice Owens is legislating from the bench - by her own admission. And you can't be "fair" or "impartial" if that's what you're doing. What's more, it's disturbing to see the P-I so ignorant of the larger danger of upsetting the careful balance of our government's seperated powers. A Judicial Superlegislature does nothing to protect our rights.

Justice Owens openly declares that she thinks it's perfectly appropriate for a Justice to make policy from the bench, when she and she alone decides where we should be "socially." For that reason alone, she's unsuited to be there.

One week until elections

Preliminary elections for the Washington State Supreme Court, and many other judicial positions, are bing held a week from today. Be prepared and remember to vote so that our court system accurately reflects what the citizens want. In Washington, most of the winners are declared after the preliminaries. The only race that looks like it might make the November election is the Owens/Johnson battle.

Take a look at this site for a non-partisan review of the candidates. Also, for those of you that remember, an attorney from John Groen's law firm was kind enough to sit on our career panel last school year.

My Hero Ted Kennedy

I'd just like to thank Senator Kennedy for his ridiculous attacks on Judge Alito, guaranteeing him his confirmation.

The Dems on the judiciary committee have now delayed the vote one week (as is their right, but something they apparently told Sen. Spectre they would not do). The only possible reason is to (a) buy more time to twist arms into supporting a filibuster, and/or (b) buy more time for liberal activist groups to smear Judge Alito. I honestly want to know - what do they seriously think they'll gain? Some say they're trying to delay it so President Bush can't take credit for the confirmation at the State of the Union Address. But all that would do is let Bush highlight their obstructionism. And the smear tactics have been going on for months now with the only result being an increase in Alito's public support. Is one week really going to make a difference?

These tactics make me think of a basketball team losing by 12 points in the final two minutes purposely fouling the winning team in the faint hope of them missing free throws and losing the rebound. Once in a blue moon, that might work. More often, it makes the losing team look desperate, confirming that they deserve to lose the game, and lets the winning team put up a whole bunch more points.

And I have to ask - whose idea was it to have Ted Kennedy there to grill Judge Alito on morality, respect for women, and/or empathy for the underprivileged?

Once again, the Democrats have displayed a tremendous talent for self destruction. Any assertions that they could regain Congress are, in light of their leadership, simply laughable.

Law Students for Alito

Issac Fong, a Federalist at Berkeley, has a Law Students for Alito blog that's well worth reading. He's tracking it all, and has information on what YOU can do to help ensure this man becomes Justice Alito.

Bork on Original Intent

In a letter to the WSJ.

Its about time that a voice of authority came out against the hideous abomination that is the chocolate martini. Also reassuring that he draws a bright line between drinks and vegetable snacks ...