IN DC

Taking a break before summer sessions start. Speaking of DC, I got a kind e-mail from a Republican attorney in the Senate who wanted to give expression to the Republican argument that the filibuster is unconstitutional. The main argument is that a filibuster changes the final vote on a nominee from majority vote to a supermajority. But a supermajority vote is not required by the constitution for judicial nominees and seems in fact to be prohibited, since other supermajority requirements are spelled out explicitly. This is the essence of the argument, as I understand it.

I think that the main interpretive difference here comes down to whether or not you think that "advice and consent" imposes a special set of criteria for evaluating Senate procedures on judicial nominees. As far as I understand their position, Republicans (and the anti-filibuster folks at Cornyn's hearing) wanted to limit their attack to the filibuster. But I think that this argument fails because there is no constitutional reason to distinguish between filibusters and any other final-up-or-down-vote defeating procedures, such as blue slips or other reasons for inaction in the judiciary committee. There may be prudential or political reasons to limit the attack to the filibusters, but I can't see any clear constitutional reason to limit the attack. Maybe I'm missing something, of course.

Plus, it seems to me that cloture votes and votes on the nominee are distinct enough as to have potentially different meanings. You could vote for cloture but against the nominee, ultimately, if you think that enough debate has occured, or that it's necessary to bring the vote to the floor even though you don't like the nominee. You could also vote against cloture but for the nominee, if for example you think that the President, the majority party, or the nominee him- or herself hasn't proceeded in a way to allow enough debate, for example. Procedure can be used to block votes, but it also has an identifiable, intelligible meaning. Again, unless you think that some combination of the advice and consent clause plus Senate custom (the ones you like, of course) clearly creates constitutional constraints on (ordinary) Senate procedures here, you'll be willing to entertain the separate meaning of the cloture vote.

And that's not even getting into the fact that the Senate shouldn't submit to Presidential interpretations of their obligations, or that Senate rules can probably be made under circumstances where the immediate partisan gains aren't at the forefront of everyone's (or most people's) minds.

WaPo's editorial yesterday is pretty good on these issues and on the current Republican proposal for a "nuclear option."

NO INDICATIONS THAT IT WAS AN ACT OF TERRORISM?

I'm not quite sure what this phrase is supposed to mean in describing what appears to have been a pipe bomb at YLS. (My friend Parley also sent along a YDN story, here.) It seems to me that if you're using a pipe bomb, whether or not it is an act of terrorism depends on the your motives. We won't really know more about that until we have some ability to describe motives. You can use a bomb to try to assassinate someone for personal gain, for example, and then it's not necessarily an act of terrorism. But outside of a narrow range of motives, I can't see how it make sense to describe the bomb as "not an act of terrorism." Unless the word "terrorism" now means particular groups engaging in particular ends.

The YLS building was recently renovated and is really quite a beautiful place. Thank God no one was hurt.

YOU'VE GOT TO BE KIDDING ME

Please. Michael Savage isn't content to villify people; he's actively working to shut down his critics. What an unbelievable jerk. I'm still not going to visit MSNBC or watch their networks until he's off the air.

MORE: Jim at OTB thinks I'm tilting at windmills and unable to be consistent at any rate, since MSNBC is related to Microsoft and GE. . .

Steven at Poliblogger isn't going for a boycott, either, but he's troubled by Savage (as is Jim, actually). Now if we can only get Savage to say something in praise of the "southern strategy". . .

MORE ADVENTURES IN JURISPRUDENTIAL SQUISHINESS

Read Garnett's article on Davey v. Locke, the case that the Supremes just agreed to hear, challenging the Washington State constitution's bar on state funding for religious instruction. Link via Volokh. As Garnett points out, if you frame the discussion in the way that the Rehnquist Court has done recently (in Mitchell v. Helms), then this is a case of the state discriminating in the distribution of aid based on religion, without a valid purpose, or at least one that the Court is going to recognize. And if you can add the history of anti-Catholic bigotry into the mix, as Garnett does, and tie the provisions to those beliefs, then you may have a winner.

So what? There are all sorts of other valid concerns, present in the case law and also present in the claims of founders such as Madison and Jefferson that can lead to the conclusion that state aid to religious organizations can be divisive and dangerous. Locke could also be brought into the mix. And these views in no way require anti-catholic bigotry, as Garnett indicates. They may merely indicate a deep respect for the depth of religious passions and a desire to avoid close connections between religion and politics. And the divisiveness of discussions over which religious groups should receive state benefits ("all of them" will not be a politically viable answer!) could lead to the same kind of hesitancy that gave birth to the Establishment Clause in the first place.

You might not find these arguments persuasive. But it's hard to really say, with complete certainty, that the arguments in favor of striking down Washington's law -- which would also entail a strong view of the Supreme Court's powers vis-a-vis the states -- clearly outweigh the arguments in favor of allowing Washington to keep the provisions and letting the good people of Washington figure out the correct course here. And it will undoubtedly be an act of discretion on the part of the Supreme Court however the case turns out. It's partly the job of legal commentators to minimize the appearance of that discretion. It's partly the job of political scientists to remind you that the legal commentators aren't telling the whole story, and that they cannot tell the whole story due to the constraints imposed by the internal norms of their profession.

[That's not an attack on legal commentators as such. Every profession has its own blindnesses. One of the current blindnesses of political science, paradoxically in my opinion, is a focus on methodological sophistication above political acumen. And the habitual reflection on power -- another trait of some political scientists -- can lead to other kinds of blindnesses as well. For legal commentators, the task really is to help -- sometimes half-consciously -- in the conversion of arguments from the rough-and-tumble of politics to the more rarified plane of "the legal." Often this entails slamming the cover down on the political motives that threaten to emerge at inappropriate moments; certain kinds of arguments are just not supposed to count, even if these arguments form the phenomenological basis for one's attachment to a particular course of action or a particular outcome.]

SAVE THE DATES

My brother sent me this recently; if you're in Boston, at the end of May, you should go and see his band. They're fantastic.

Come check out Bajuco at the following dates:

Friday May 23rd: Multi Mediums III $7. The First Parish Church in Harvard Square (3 Church St. Take the Red line to Harvard Square. Across from the movie theater). 7-11pm. w/The Sonic Explorers and an art exhibit of work by Museum School students, curated by Heidi Marston

Wednesday May 28th: Ryle's Jazz Club $7 212 Hampshire Street, Inman Square, Cambridge. w/The Lola Danza Group

We now have CD's for sale for $5. You can purchase them at both shows (hint hint, wink wink ). May the force be with you all!

-Todd Marston

I'll remind you as the days approach. . .[and the first date listed here is this Friday. Check them out!]

THEOCRATS AT HEART?

Why are democratic fairy tales populated by theocrats and military rulers? This is the question that bothers me about the Matrix as well as the whole Star Wars franchise. I mean, in the Matrix II, there's this religious ceremony scene that depicts the deeply hierarchical, neo-pagan society of Zion. "Everyone" is at the religious ceremony qua town meeting (and you know that everyone is there because Neo and Trinity find a quiet place to do the naked pretzel, and apparently no one else thought of sneaking off for the same thing). And the ceremony seems to be run by the elites, who enjoy a calm cocktail hour as the masses undulate to primal music. There is no discussion of who the elites are or why they are elites, except hints that they are supposed to posses some sort of wisdom (witness Cornel West's performance, and his only memorable line is something about not needing to understand in order to obey, if memory serves) as well as religious sensitivity (witness their faith in "the prophecy" and the Neo / Christ figure); then there's a second tier of elites, clearly subordinate to the council, who make up the ranks of the military leadership, and who show almost sheepish deference to the council.

My impression is that the cramped portrayal of politics in the Matrix is due to a characteristic blindness induced by a focus on the theological problem of free will (with undercurrents of Christian doctrine) that serves as the driving theme of the movie. A focus on the question of creating the political conditions necessary for common commitment to reflection on the problem of free will would produce a different portrayal of politics.

That's not to say that I didn't like the movie. It was pretty cool, even though I agree with Maria Farrell that it's a bit choppy.

PRIMORDIAL PARTISANSHIP

I'm beginning to move in the direction of a very pessimistic view of the capacities of actors in the legal culture to transcend partisanship, when it counts, and to apply rules and arguments irrespective of result. Maybe it's clear already that I don't believe that people can transcend partisanship, and maybe it's clear already that I am not sure that people should do so (a la an account of "high politics). But I really am beginning to believe that we are shaped by our commitments rather than being able to shaped them in any fundamental fashion, at least as far as politics is concerned.

Nelson Lund is a case in point. His recent article in NRO (via HA) attacks Roe v. Wade (because it was too activist a decision, but also presumably because he's not a real fan of abortion rights) and argues that Bush v. Gore was really just the spirit of Roe v. Wade coming home to roost. But he's not arguing that the majority in Bush v. Gore was engaging in political judging: only the dissent was. Lund is already on record as claiming that Bush v. Gore was really "no big deal," totally predictable as a matter of law, and that the outcry over the decision really reflected the liberal leanings of the law professoriat rather than any dispassionate analysis of the issues at stake. Here's his analysis this time, in the context of explaining what he sees as the critical question in the current battle over judicial nominations:

The real question is whether we are to get judges committed to applying the law, or judges who treat the law as a game in which the winner gets his policy views enacted as judicial decrees. If the Democrats' filibuster strategy succeeds, judicially created abortion rights will certainly be safe for the moment, but no rights — and no laws — will long be secure from cynical judicial manipulation.

Bush v. Gore provides an illustration. The majority opinion applied well-settled precedents from the Warren Court in a perfectly straightforward fashion, and none of those dissenting could explain why those precedents were inapplicable. Instead, they criticized the majority on political grounds. Justice Breyer, for example, admitted that the Florida recount was unconstitutional, but argued that the U.S. Supreme Court should have let it proceed anyway. Why? "Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself."

Lund then goes on to argue that Breyer was being disingenuous in calling for judicial restraint, since he had just authored the opinion striking down Nebraska's partial birth abortion law in Stenberg v. Carhart.

In the case of Bush v. Gore, Lund wants to have his cake and eat it, too: he wants to be able to criticize the dissenters for being unprincipled, but he also wants to claim that the majority was simply applying settled precedent as if this case were no more momentous or interesting than any other issue. But stare decisis is the wrong focus, given the fact that the Rhenquist Court has been more than happy to depart from precedent when it thinks that the Warren Court went too far. And Scalia, at least, is explicit about this: precedent that was wrong when it was decided should not be viewed as binding. Lund claims that only the dissent in Bush v. Gore was engaging in "cynical judicial manipulation," but I am hard-pressed to see why Stenberg v. Carhart is any more objectionable than the choice in favor of applying Warren Court precedent in Bush v. Gore, given an apparent willingness of the members of the majority to depart from and narrow that precedent in other situations.**

A choice to abide by a norm can be as cynical as a choice to disregard it, depending on the expected behavior of the individual in question. Not to put too fine a point on it, but a tyrant who occasionally refrains from summary executions can also use instances of restraint as expressions of power. And here the issues are more subtle: in Stenberg v. Carhart, for example, the dissenters (except Scalia, I gather) seem to argue that they could still hold to Casey, which Rehnquist and Thomas at least disagreed with when it was decided, and reach a different result from the majority. So the dissenters in Casey could still hold to stare decisis and reach a different result from the majority in Stenberg v. Carhart, who were the primary authors of Casey. Very squishy and very interesting. Apparently, individuals can apply precedent and reach different results, results that are at least partially predictable by how they stood toward the precedent itself, when it was decided. That should make you go "hmmm."

Any story that seeks to cast the majority or the dissent in Bush v. Gore as simply "applying the law" is weird, from my perspective. These were close issues on which it would be possible to develop mutually conflicting opinions. The story of Bush v. Gore is not only the story of liberal justices calling for restraint; it's also the story of conservative justices self-righteously donning the mantle of precedent in a situation in which it was not necessary for them to do so (pace the rhetoric about "unsought responsibility": Congress could have figured this one out, as the statutes envisioned) and in which they would not have been expected to do so given their past stance on the line of precedent that they used for their authority. But for Lund, it's only Breyer who's engaging in politics. The only way I can explain this argument on Lund's part is to refer to some kind of primordial partisanship that is from the beginning more blind to what Scalia and Rehnquist are doing than to what Breyer and Ginsburg are doing.

If you've read this far, you'll undoubtedly get flashbacks of earlier discussions that have just gone 'round and 'round on this issue, with the stances people take being relatively predictable based on their political preferences. But that's precisely the point.

MORE: See Rick Hasen's (more detailed) reply to Lund's essay here.

**I'm a little unfair here, I realize in retrospect; Rick Hasen's approach makes much more sense. The main complaint shouldn't be that the majority should have felt free not to apply relevant precedent, as I imply above, but that they had wide latitude to read that precedent in different ways and that they chose a reading that they probably would not have chosen under different circumstances.

GAY RIGHTS AND JUDICIAL APPOINTMENTS

In an e-mail sent to the Law and Courts discussion list (reacting to this NYT editorial criticizing Bill Pryor and Claude Allen), Dan Pinello (Gov't, John Jay) writes the following, which I assume is fair game here:

The policy preferences of the President's nominees are consistent with those of his Republican predecessors. My research [. . .] on appellate court treatment of gay rights claims from 1981 to 2000 reveals that, among 45 federal cases not influenced by controlling precedent, only 26.7 percent of 116 votes by judges nominated by Republican presidents were favorable to lesbians and gay men, while 60.2 percent of 83 votes by Democratic appointees supported homosexuals -- a difference of 125 percent.

The details of the research are important of course: how are cases where there is no influence of controlling precedent selected? But the important point is that judges nominated by Republicans are less friendly to gay rights than judges nominated by Democrats. I find it exceedingly hard to believe that either side on this issue is clearly right, all things considered, as a matter of statutory and constitutional interpretation. I prefer those positions that are more friendly toward gay rights, because they seem to me to be closer to defensible accounts of human flourishing (among other things). Would I be a non-virtuous judge if I refused to find at the end of my chain of argument that the rights of gays and lesbians were primarily a matter of legislative grace and that the controversial use of judicial power is too precious a resource to spend on this issue? Again, details are important; the general question is still intelligible.

ARTICLE 356

Today's Times of India has an editorial on proposed revisions of Article 356, a controversial provision in the Indian Constitution that allows the central government to take over the reigns of power in a state during an emergency (supposed to be defined with respect to a breakdown in the functioning of the constitution itself, in that state). Last week representatives from the state governments had proposed some safeguards with respect to the use of Article 356, including that parliament should be required to debate any proposal to invoke it. The central government seems to have agreed to that proposal in principle, although there are still some details to be worked out (scroll down) with respect to how much factual information should be part of the text of future proposals to invoke Article 356.

One recent example of a situation in which Article 356 has been contemplated, but not invoked (as far as I know) also occured last week in the state of West Bengal, where there was widespread election violence. For some more background on Article 356, read the articles here and here. The general heading under which Article 356 should be discussed is that of constitutional emergency powers. Whereas the U.S. constitution does not contain any reference to emergency powers (and hence clouds their use by the executive in doubt and political contestation), the Indian constitution attempts to be textually explicit. It's not clear to me that either text, as such, is better: contestation will occur no matter what the text says. But obviously the details matter.

A KIND RESPONSE

from Lawrence Solum, here. I respond briefly below. If you suddenly become puzzled by my squishy, non-social scientist reply, remember that I originally studied German literature. . .

This discussion reminds me: if you're building your summer reading list and you haven't read it already even though it's been out for a few years, check out Ewick and Silbey's Common Place of Law. Through both empirical study and fancy theorizing, Ewick and Silbey examine the particular stories or narratives that Americans bring to the law and that structure their experiences of it. The book has really helped to clarify some of my own conflicting impulses with respect to the law. And if you can get through the theoretical parts, it's a real good read.

NOT LYING, REALLY. JUST SPINNING.

Or pressuring. That's how I would resolve the question of whether or not Bush is lying when he says that the Constitution requires the Senate to hold an "up or down vote" on judicial nominations. It seems to me that a dispassionate observer would argue that there is no requirement, as such, particularly in the way that Bush seems to mean the phrase here (i.e., floor vote, 1/2 n + 1 takes it). Article I gives both houses the power to make their own rules, and any reading that requires a simple majority for judicial nominations is fancy and debatable -- not necessarily wrong, but not necessarily right, either. But everyone expects there to be some amount of constitutional combat: arguments that are merely plausible are pushed by political actors as if they were unavoidable and binding, and the losers capitulate not because of the force of their opponents' resaoning but because of the force of political will. Part of this pushing is no doubt strategic, part is probably psychologically necessary.

I'm sure that Thomas Preacher (see link above) is not the only one surprised that there is "no explicit requirement for majority vote on virtually any of the issues within the power of the legislative branch." This is partly due to the way that constitutional combat affects political discourse more broadly. If you polled Rush Limbaugh supporters, for example, they'd probably think that the phrase "up or down vote," or at least a close analogue, is itself found in the constitution. The President isn't discouraging that belief, to be sure. But this kind of political dispute is part of the way that constitutional meaning gets established over time. It's not really lying. It is, um, rhetorically complex, though.

LFO.

One of the odd characteristics of U.S. coverage of Pakistan is that it has said virtually nothing, recently, about the ongoing struggle over the Legal Framework Order or LFO. Hardly a day goes by on which there is not some LFO-related news in the major English-language Pakistani newspapers (Dawn, Statesman, Nation), but American papers haven't said a word about it recently. This may have partly to do with the nature of the debate over the LFO: constitutional reform is not particularly sexy, I suppose. But that doesn't make it unimportant.

The LFO is a proposal by Musharraf issued in 2002. It does a lot of things, but one aspect that has been particularly controversial is the creation of a National Security Council which Musharraf heads and which detractors claim leads to the continuation of political influence on the part of Pakistan's military. The LFO also allows Musharraf to dissolve governing bodies and appoint members to the NSC, military, and courts. See Human Rights Watch's analysis here (PDF file), and the article in Himal here.

Some opposition party members have attempted to combat the LFO with hunger strikes, for example. And major Pakistani bar associations have vowed to fight it.

A group appointed to make recommendations to improve on the LFO and break the impasse between Musharraf and opposition parties will apparently finalize its discussions on Monday, according to this Gulf News report. Opposition parties will issue their own reports as well.

The lack of coverage of this issue in the U.S. press is a real shame. The dispute over the LFO shows at least that Musharraf does have to take opposition parties into account. They might not win very much in this dispute, but Musharraf hasn't been able to ignore them outright. Second, the dispute over the LFO is going to help determine the shape of Pakistani politics for years to come. Musharraf may succeed in his plans to create a permanent constitutional foundation for what will essentially be presidential and military rule in Pakistan, despite the strong opposition he is getting. How this fits in with the Bush administration's stated desire to democratize the islamic world is not clear.

ANOTHER DISPATCH FROM THE WORLD OF GIULIANI-STYLE POLICING

This story is awful. Another fly in the dot-matrix printout story, except this one involves an informant, apparently.