Tuesday, September 27, 2005

Supreme Court

Josh Claybourn is covering an interesting bill that would require the Supreme Court to televise its proceedings.

Monday, September 26, 2005

Zip Codes

The US Post Office has a handy website where you can look up someone's zip code by entering their address. Oddly enough, the form has a field where you can enter . . . their zip code.

Sunday, September 25, 2005

Birth Control Crusaders

This was an interesting passage from Robert Coles' book Children of Crisis: A Study of Courage and Fear, originally published in 1964. The book is about "southern children and adults of both races and all persuasions as they act and react to the civil rights turmoil of the 1960s."

The following is a long quote from a black woman who was talking about the birth control crusaders who had tried to recruit her to the cause:
They came telling us not to have children, and not to have children, and sweep up, and all that. They tell you you're bad, and worse than others, and you're lazy, and you don't know how to get along like others do. . . . Then they say we should look different, and eat different -- use more of the protein. I tell them about the prices, but they reply about 'planning' -- planning, planning, that's all they tell you. The worst of it is that they try to get you to plan your kids, by the year, except they mean by the ten-year plan, one every ten years. The truth is, they don't want you to have any, if they could help it.

To me, having a baby inside me is the only time I'm really alive. I know I can make something, do something, no matter what color my skin is, and what names people call me. When the baby gets born I see him, and he's full of life, or she is; and I think to myself that it doesn't make any difference what happens later, at least now we've got a chance, or the baby does. You can see the little one grow and get larger and start doing things, and you feel there must be some hope, some chance that things will get better; because there it is, right before you, a real, live growing baby. The children and their father feel it, too, just like I do. They feel the baby is a good sign, or at least he's some sign. If we didn't have that, what would be the difference from death?

Even without children, my life would still be bad -- they're not going to give us what they have, the birth control people. They just want us to be a poor version of them, only without our children and our faith in God and our tasty fried food, or anything.

Friday, September 23, 2005

Religious Test

U.S. Constitution, Article VI:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Richard Durbin, explaining why he voted against Roberts:
Mr. Durbin, quoting the Bible, lamented that he could not discern whether Judge Roberts had "an understanding heart."

Thursday, September 22, 2005


Just as a note: John Roberts did say some things that might give some judicial conservatives pause:
  • He denied having a judicial philosophy:
    ROBERTS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case. And I think that's true.
  • He endorsed substantive due process:
    Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well.
  • He endorsed Griswold:
    KOHL: Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.

    Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?

    ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
  • He also seemed to endorse the Eisenstadt case:
    FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

    Do you think that right of privacy that you're talking about there extends to single people, as well as married people?

    ROBERTS: The courts held that in the Eisenstadt case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstadt.
  • He even went out of his way to suggest that the right of privacy was not merely "implied":
    FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.

    Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

    ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated . . .

Wednesday, September 21, 2005

Specter's Gall

From Yahoo:
Specter said he suggested the president delay picking O'Connor's replacement until more is known about the judicial philosophy of Roberts.

"The president was noncommittal," the Pennsylvania Republican said. "The body language was not very positive."
I'll bet. Why should President Bush give up his constitutional prerogative to appoint new Supreme Court Justices simply so as to satisfy Specter's idiosyncratic and personal feelings?
Specter said he has talked to O'Connor about staying on through the June term. "I talked to her and she's prepared to do that. It would be quite a sacrifice for her, but she's prepared to do it if she is asked. By next June we'll know a lot more about Judge Roberts ... than we do today."
Doesn't this take a bit of gall? O'Connor clearly wants to retire, and Specter is privately urging her to stay simply because of his own ideological agenda? Amazing.

Friday, September 16, 2005


The new show Invasion looks very interesting. The official website is set up to look like a blog, for whatever that's worth. What makes the show look interesting is that Shaun Cassidy (yes, the former singer) is involved. Cassidy also put out the short-lived series "American Gothic" about 10 years ago. (It will be available on DVD soon.)

Wednesday, September 14, 2005

Not even unions want union labor

The Las Vegas Weekly reports that the United Food and Commercial Workers union has hired day laborers, who receive $6 an hour and no benefits, to sweat in the hot Las Vegas sun protesting the working conditions inside the local air-conditioned Wal-Marts. The union accuses Wal-Mart of driving down wages (local Wal-Mart workers average $10.17 an hour) and failing to provide workers with free health insurance. Priceless.

Tuesday, September 13, 2005

Roberts Hearing II

More of today's highlights, all from questioning by Lindsay Graham:
GRAHAM: Justice Scalia: Do you consider him conservative?


GRAHAM: Do you think you're more conservative than he is?

ROBERTS: Oh, I don't know. I mean, I wouldn't...

GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side.
Good point.

Earlier in the day, Senator Kohl had asked this question of Roberts:
KOHL: As you seek to become the head of the judicial branch, as you seek the position of chief justice of the United States of America, what role would you play in making right the wrongs revealed by Katrina?
A bit desperate to throw Katrina in there, but so be it. When Graham's turn came, he launched into this bit of questioning:
GRAHAM: Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech.

What do you think about that?

ROBERTS: Well...


We had the Flag Protection Act after the Supreme Court concluded that it was protected speech.

GRAHAM: Show me where the term symbolic speech is in the Constitution.

ROBERTS: Well, it's not.

GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily.

What do you think about that?

ROBERTS: That's something that's probably inappropriate for me to comment on.

GRAHAM: What do you think Ronald Reagan thought about that?

ROBERTS: His view was that voluntary school prayer was appropriate.

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials?

ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing.

GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs.

I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court.
When Graham started with the questions about flag-burning and school prayer, I wondered what on earth he was doing. But in the end, it was a very effective point.

Then there was this:
GRAHAM: [Ginsburg] said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose.

Roberts Hearings

A few observations:
  • By my word-count of the transcript, Biden spoke 1116 words before finally getting to his first question. He also asked several other long and meandering questions-in-the-form-of-lectures.

    As well, Biden interrupted Roberts at least five times during the questioning, forcing Specter to state on each occasion that Roberts should be allowed to answer. Biden's reactions included the following statements: "I don't have much time," or "He's filibustering" [this was said after a 15-word response from Roberts], or "But I have no time left."

    This, I believe, is called chutzpah.

  • Roberts' wry sense of humor was on display today, particularly in questioning by Sen. Kohl.

    Judge, as we all know, you were originally nominated to replace the first woman ever to sit on the Supreme Court, Sandra Day O'Connor. There was a lot of speculation when she announced her requirement that the president might choose a woman to replace her. And she even suggested a little disappointment, not with you, but with the fact that a woman was not chosen.

    KOHL: Had the president told you that the selection was down to you and an equally qualified woman for the post, but that he thought a woman was needed, would you have seen that as a reasonable conclusion on his part?

    ROBERTS: I certainly think presidents have and will consider a broad range of issues and characteristics and qualifications in selecting their nominees, and that's certainly one for a president to consider.

    KOHL: All things being equal, in terms of qualifications, would you be pleased if the president chose a woman to replace Sandra Day O'Connor?

    ROBERTS: The upcoming vacancy?

    KOHL: Yes.


    ROBERTS: I just wanted to make clear we weren't talking about this one.


    I don't think it's appropriate for me to comment in any way about the president's future selections other than to say that I'm happy with his past ones.

    Or this:
    Judge Roberts, in an October 3, 1983, memo you wrote that while you served as associate White House counsel for the Reagan administration, you expressed support for judicial term limits. You did specifically support the idea of limiting judicial terms to 15 years and you said, I quote, "to ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," unquote.

    And do you still support in theory the idea of judicial term limits?

    ROBERTS: You know, that would be one of those memos that I no longer agree with, Senator.


    I didn't fully appreciate what was involved in the confirmation process when I wrote that.


  • Senator Feinstein made this claim:
    As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause. Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.
    If Feinstein is saying that the Supreme Court has struck down more than three dozen congressional enactments based on the Commerce Clause, that is simply false. If she's talking about lower courts that may have followed the Supreme Courts two recent cases on this issue, then I don't know what the right number is.

Monday, September 12, 2005

Confirmation Hearings

One of the funniest things that I ever saw on C-Span -- not that this is saying much -- was when Teddy Kennedy questioned Ted Olson during the hearing over Olson's nomination to the Solicitor General position. This was on April 5, 2001.

Just as background, the Supreme Court has set out three levels of "scrutiny" under the Equal Protection Clause. When the government classifies or treats people differently by race, courts apply "strict scrutiny," in which the government must show a compelling interest that can't be satisfied by any other means. The government almost always loses such cases. At the opposite end of the spectrum, most economic legislation is given "rational basis scrutiny," where the government merely has to show that there is a rational basis for the law in question. Then, in the middle, governmental discrimination based on gender has to satisfy "intermediate scrutiny," where the government has to show that it has a "substantial interest" that the law furthers by means that are no more extensive than necessary.

So: In this line of questioning, Kennedy had been talking about the Supreme Court's case involving the Virginia Military Institute, which had been for males only. The Supreme Court had applied intermediate scrutiny. And Kennedy was apparently trying to ask something about intermediate scrutiny. As you can see, it's not entirely clear what:
KENNEDY: As I understand, there's a different constitutional standard when you've excluded a group, such as women, as VMI did, in meeting constitutional muster, versus establishing classes to meet the constitutional standards which are established for single sex, for example, male-female, obviously, single sex. [Huh?] There's a different constitutional standard, one in excluding a particular group, in this sense, the gender group, and the courts have used different criteria.

OLSON: The courts have in the past -- and it's still a little bit confusing with respect to the differential between strict scrutiny and what the court called an intermediate scrutiny. This was a case involving two separate institutions in Virginia, one which excluded women, one which excluded men, to provide citizens in Virginia with an option of single sex education.

KENNEDY: Well, yes, I understand that. [Said peevishly.] But as I understand the Supreme Court's ruling on excluding women as a gender and as a class, there are past Supreme Court holdings on this that are pretty clear. I want to move on on this, but that's my understanding. [Somewhere in here, one of Kennedy's aides sitting behind him got a very panicked look on his face, and started furiously scribbling a note to Kennedy.]

So using the example that establishing single sex classes and wondering if it meets muster, while on the other hand, there had been a particular exclusion of a class of people, and that has been tested in the Supreme Court before, and they've made clear findings on that, and I thought that the law was quite clear, and, as we see, it was sustained in this particular case.[Kennedy delivered this line as if he had just made an authoritative pronouncement that actually meant something.]

Let me move on. [A wise choice.]

Bootleggers and Baptists

One of my law review articles -- co-written with economics professor Bruce Yandle -- deals with Yandle's theory of "bootleggers and Baptists" as applied to global warming. In a nutshell, Yandle's theory "draws on colorful tales of states’ efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently endorsed such actions on moral grounds. Bootleggers tolerated the actions gleefully because their effect was to limit competition."

I just coincidentally came across confirmation for this bit of history. It's on pages 54-55 of the memoir North Toward Home, by Willie Morris, who grew up in Mississippi and became editor of Harper's magazine in the 1960s.
Mississippi was a dry state, one of the last in America, but its dryness was merely academic, a gesture to the preachers and the churches. My father would say that the only difference between Mississippi and its neighbor Tennessee, which was wet, was that in Tennessee a man could not buy liquor on Sunday. The Mississippi bootleggers, who theoretically operated "grocery stores," with ten or twelve cans of sardines and a few boxes of cackers for sale, satyed open at all hours, and would sell to anyone regardless of age or race. My father could work himself into a mild frenzy talking about this state of affairs; Mississippi, he would say, was the poorest state in the union, and in some ways the worst, and here it was depriving itself of tax money because the people who listened to the preachers did not have the common sense to understand what was going on.

Every so often there would be a vote to determine whether liquor should be made legal. Then, for weeks before, the town would be filled with feverish campaign activity. People would quote the old saying, "As long as the people of Mississippi can stagger to the polls, they'll vote dry." A handful of people would come right and say that liquor should be made legal, so that the bootleggers and the sheriffs would not be able to make all the money, and because the state legislature's "black-market tax" on whiskey, a pittance of a tax that actually contradicted the state constitution, was a shameful deceit. But these voices were few, and most of the campaigning was done by the preachers and the church groups. In their sermons the preachers would talk about the dangers of alcoholism, and the shame of all the liquor ads along the highways in Tennessee and Louisiana, and the temptations this offered the young people. Two or three weeks before the vote, the churches would hand out bumper stickers to put on cars; in big red letters they said, "For the sake of my family, vote dry." An older boy, the son of one of the most prosperous bootleggers, drove around town in a new Buick, with three of those bumper stickers plastered on front and back: "For the sake of my family, vote dry."

Thursday, September 08, 2005

FEMA Response

I've been hearing a lot about the woefully inadequate response by FEMA or other federal agencies to the New Orleans situation. This all seems about right, but I'm left wondering: What about Mississippi and Alabama? They didn't have the flooding that New Orleans experienced, but they did have many towns -- with lots of poor people -- that were just obliterated. Why aren't there any complaints about FEMA there? I can think of several possibilities:

1. There are in fact complaints about FEMA's response to Mississippi and Alabama, but I haven't heard about it because no one is paying any attention.

2. FEMA performed wonderfully in those states, for some unknown reason.

3. FEMA's response was inadequate, but either (a) the MS/AL officials were not as completely incompetent to handle the situation, or (b) the MS/AL residents were more self-reliant and responsible.

4. The flooding in New Orleans affected more people in one concentrated location than the destruction in MS or AL, thereby magnifying the difficulties aggravated by the lack of an adequate federal response.

Monday, September 05, 2005

Roberts as Chief

Why couldn't Roberts still be viewed as being O'Connor's replacement? In other words, why can't it be the case that (1) O'Connor's replacement will be the new Chief; and (2) Rehnquist's replacement (whenever that occurs) will be an Associate Justice? Who says that can't happen?

After all, we have all been assuming that naming a "Chief" is separable from naming a "Justice." Everyone seems to agree that Bush could -- at present -- name Scalia to be Chief, name one nominee to fill Rehnquist's spot, and another nominee to fill O'Connor's spot. But were that the case, it is not as if Scalia would have filled Rehnquist's spot as a Justice. That vacancy would still be open.

Doesn't this then mean, logically, that even though Roberts is being named "Chief" as well as a "Justice," he is not necessarily "replacing Rehnquist"? Instead, he could be viewed as "replacing O'Connor and at the same time being named Chief."

UPDATE: Marty Lederman has a good answer.