FINANCIAL GAZETTE OFF LINE

Too bad.

MORE: Maybe not. Seems a few days behind, though.

DAD

Happy Father's Day, dad. Thanks for teaching me to be a decent person. Thanks for encouraging me (and Heidi and Todd) to pursue our interests regardless of the prospect of extrinsic rewards. You're a good man.

Here are Dad, Todd, and Heidi at mom's graduation from Andover Newton this spring. Note especially the "Marston nose." Dad's got pretty strong genes.

IRANIAN PRESS

The BBC has got an overview of Iranian press reactions to the student demonstrations. This is also a good time to have a look at the Iran Daily, which seems generally opposed to the demonstrations (headline just posted: "Rafsanjani Warns Youth about American Trap.") Take a look at Josh Chafetz's links as well.

COURT SHORTENS SENTENCES FOR BEING GAY IN EGYPT

Dispatch from a famous "habitual debauchery" trial, from the Cairo Times.

CZECH STORIES

The Prague Post has some good opinion pieces on EU membership, pro and con, but something else caught my eye: an article on the recent conviction of Karel Hoffman to four years in prison for shutting off Czechoslovak radio during the 1968 Prague spring uprisings. According to the article, it's not clear whether he will serve any time, however, because he may get amnesty.

NEFERTITI GETS A NAKED BODY, EGYPTIANS ANGERED

This strikes me as a very odd curatorial decision by the good folks at the Egyptian Museum in Berlin. Here's an article in the Al-Ahram Weekly, which is also the source for this picture of what appears to be the controversial Hungarian artistic event in question:

At the very least, this controversy will give Egyptians more ammunition in their attempt to recover artifacts from the Germans.

Read also the Guardian piece on this issue.

WELCOME

Welcome to those coming here through Lies, Damned Lies and Statistics, dratfink, Dormouse Dreaming, the Newsrack Blog, Charles Lipson's site, Counterpoint 2004, Ruminate This, Whiskey Bar, and (even though you're probably yelling at the screen) Ben Domenech's blog. Please make yourselves at home and do feel free to send me your comments!

One reader who came here through (the brilliant) How Appealling thought that my comments yesterday on Senator Kennedy's criticism of Bill Pryor were misplaced, because Pryor's "blatant hostility towards the paramount Constitutional authority under our system," as evidenced in Pryor's speech, should lead one to wonder whether or not he will be willing and able to "apply that body's view of the law." According to the reader, Kennedy was not attacking criticism of the Court as such, however, only criticism of this sort as it comes from the mouth of a federal judicial nominee.

It is odd for me to defend Pryor against Senator Kennedy; as I said yesterday, I don't think that Pryor should be confirmed, and I respect Senator Kennedy's political views and almost always share them. But I emphatically do not agree that it is inappropriate for people who run for and inhabit political offices (as Pryor was) to engage in sharp criticism of the court. In general, we should want people with political experience to serve on the federal bench; in fact, liberals in particular should want this, to the extent that separation of powers and federalism issues (as well as other issues in which courts have to examine and make assumptions about the work of legislatures) will probably be better understood by those who have had political experience. And if you engage in politics, sometimes you engage in political rhetoric, and sometimes that rhetoric can and should be sharply critical of courts. If you can use the word "octogenarian" in that context, then more power to you. I couldn't even remember how to spell it.

Many people have expressed a lament at the lack of political experience on the current Supreme Court, so this concern is by no means mine alone, although, given their interests, political scientists may be more susceptible to this particular vision than those who have legal training exclusively. And I imagine that there is some tension between this view and the view expressed eloquently by Lawrence Solum that the nominations process should be geared toward selecting what he calls "virtuous judges," although I don't want to stake a lot on this claim without further thought.

If the problem were with Bill Pryor's politics, that's fine. But I got the sense that the problem was that Bill Pryor had attacked the Supreme Court and thus now should be viewed suspiciously in his quest for a federal judgeship. At that level of generality, I think that he should not be viewed suspiciously. I understand that confirmation hearings are probably the most important area within which Senators can try to exert influence on federal judges and that lifetime appointments make the issue of future judicial character especially pressing. My pie-in-the-sky solution (perhaps) would be to get rid of lifetime appointments by instituting either fixed term or mandatory retirement ages. Absent that arrangement, I understand that Senator Kennedy wants to sound out Bill Pryor's past to understand his probable judicial temperament, but the cost of such a line of questionings may be to make it harder for people with political experience to sit on the federal bench.

"OCTOGENARIAN," BASEBALL, AND "CUSSING THE COURT"

Senator Kennedy took Bill Pryor to task today, in his confirmation hearings for a seat on the 11th Circuit (accessible here, link via Howard Bashman), for arguing in public that some controversial issue shouldn't be decided by "octogenarians in robes," or something like that. I don't have the transcript, but after some hemming and hawing on whether the statement was merely "heated" or also an "inappropriate" way of referring to the Supreme Court, Senator Kennedy extracted an admission from Pryor that the statement was "inappropriate."

As an isolated event, I find this exchange troubling. Court-bashing has a long history in American politics. In a fantastic 1936 article in the Annals of the American Academy of Political and Social Science ("The Supreme Court: Arbiter and Target"), Thomas Reed argued that "cussing" the court serves several functions and is as a part of American life as "cussing" umpires at a baseball game. Here are some of his words, which are worth quoting in full:

Berated first by one side and then by the other, never free from criticism, accused of usurping power and sabotaging the Constitution on repeated occasions, its pronouncements (in the Dred Scott case at least) made the theme of battle -- the Supreme Court has gone steadily on increasing its authority, its influence, and its hold upon the affections of the American people at large. The fact that we throw pop-bottles at the umpire does not mean that we want to abolish umpires. In fact, in my lifetime I have seen the number of umpires increase from one to three. And the day after a riot in which the cry "Kill the umpire!" has split the heavens, the man in the blue cap says "You're out!" just as authoritatively as he did the day before.

Reed continues a little farther down:

And since the Supreme Court has on the whole gone serenely on its way deciding questions as they came to it, sometimes irritating one group, sometimes another, but never permanently allied with any section or interest, it has earned the reputation of deciding cases fairly. It could only be in serious danger of seeing its power curtailed if it remained of one complexion too long, and this the advanced age at which men usually arrive at the dignity of a seat on the supreme bench makes a practical impossibility.

And at the end of the article:

. . .the Supreme Court is respectable and respected, but not sacrosanct. The decisions of its judges, as the work of fallible human beings should be, are subject to the criticism and comment -- to the 'cussing' -- of their fellow citizens. It would be unwise to curtail either the power of the Court or the freedom of this criticism. It is more important to have an authoritative tribunal to decide disputed questions than to have those decisions in the first instance always be right. But since they may be wrong, the President, the Congress, and the people at large must have the right to say their say about them. Whether we like it or not, they will continue to do so until the character of our institutions or the character of the American people is radically changed. If some of the 'cussing' is unmannerly, we may regret it; but even coarse abuse is less to be deplored than silent subservience.

I like these passages for several reasons: first of all, I have on occasion fallen for the woeful rhetoric of those who say that conduct at contemporary sporting events is unruly and that this indicates a decline in public manners. I especially think of this when I recall shouting at the television in the 1999 playoffs when the umps blew a call (in a series in which they blew several calls, most in favor of the Yankees against the Red Sox); the fans at Fenway felt the same way and started throwing bottles on the field. The shocked reactions of commentators and pundits struck me as misplaced, since it was my team that had gotten nailed. Reed gives us a snapshot of fan behavior from 1936, at least, and shows us that some things have not really changed.

More fundamentally, Reed defends a strong norm of allowing criticism of the decisions of the Supreme Court, and links this up with the unruly characteristics of public discourse in a democracy. I find this perspective refreshing. And unless we are going to exclude political actors from serving on the federal bench (something that is unwise, in my view), we shouldn't be surprised at intemperate criticism of the Court on occasion. Senator Kennedy wanted to raise issues about Pryor's character, and that is certainly fine, but the fact that he was a political actor who engaged in the same kind of criticism of the Court that is periodically common in both political parties should not count against him at all. I don't think he should be confirmed for other reasons, though.

Finally, Reed discusses informal barriers to partisan entrenchment on the Court and implies that long periods of stable membership will increase public criticism. Since the Rhenquist Court has had such stable membership (and voting patterns) over the past decade or so, and since many individuals (Rhenquist included) have now spent three decades on the Court in a dominating role, it is no surprise that liberal criticisms of Bush's judicial nominees have increased, since they now feel that their oxen are being gored and may be gored in the future for quite some time if Bush is allowed to reinforce the Court's conservative (and conservative activist) tendencies. It's worth noting again that two of the characteristics of membership on the Indian high court, for example, are a mandatory retirement age and a norm of requiring service on a state high court, which leads to a relatively high average age of those who are nominated and very short terms of office (see my post here). Institutional borrowings from other countries such as India could actually prevent long-term partisan entrenchment and, in Reed's analysis, be good for the Court as a whole.

MORE: NPR's Nina Totenberg's report on All Things Considered this afternoon provides an audio snippet containing the exchange between Senator Kennedy and Pryor, accessible here, starting at about 2:39 into the segment.

And now I notice that I spelled "Rehnquist" wrong. I'm not alone. And only Rehnquist and Stevens have "spent three decades" on the Court, but you get my point anyway.

RON PAUL AND MARILYN MUSGRAVE

In my Intro American Gov't class oday we're talking about congressional control over the courts, and I'm going to show them Congressman Ron Paul's (R, TX-14th) website, which has a helpful list of legislation that he has sponsored (accessible through this link). If Representative Paul actually represents majority opinion in that area of Texas, I doubt that I'd feel all that comfortable living there. Take a look at the things he's proposed; they're pretty amazing.

We're also probably going to watch a bit of Rep. Marilyn Musgrave's (R-CO) appearance on C-Span (video should be available here), where she defends this proposed amendment, which reads as follows:

`SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

She argues that this Amendment would do place control over civil unions at level of state legislatures, rather than "unelected liberal judges." I find it hard to see this as an instance of respect for federalism, however; this proposal rather seems to take the issue of civil unions off the table as an option for state law, and not just in courts. As Sam Heldman argues, Reps are fair-weather friends of federalism, despite their often stirring rhetoric on the subject.

I doubt that this Amendment will pass, but I haven't read any analysis; as Ron Paul shows, lots of Amendments are proposed not because they'll pass but because a legislator wants to signal support for an idea to constituents. In fact, this signalling is often relatively cost-free since the barriers to successful Amendment are so high.

For those concerned about partisan balance, yesterday we watched a section of Russ Feingold's questions to Michael Chertoff as well as sections of C-span's coverage of rallies for and against the nomination of Miguel Estrada.

FILIBUSTERS, TPA, AND FRAMERS' INTENT

How can a filibuster of judicial nominees be unconstitutional while TPA is not? In response to this post, Jim Joyner (here and here) and Steven Taylor (here) discuss TPA and filibusters; Jim wants to concede that TPA is unconstitutional while noting in the comments that sometimes practical considerations require a deviation from the strict letter of the Constitution, and Steven wants to preserve a distinction between executive agreements and treaties and thus save the boat. Jim also digs up the Senate's website on treaties and executive agreements, which details quite frankly how the rise of executive agreements was a response to the difficulties of getting treaties past the Article II, Section 2 supermajority requirement. The numbers are staggering: between 1946 and 1972, only 6.2% of international agreements were ratified as treaties, and the number of agreements (rather than treaties) has skyrocketed since then.

I should note that I first heard about this issue through Ackerman and Golove's book, Is NAFTA Constitutional? They ultimately conclude that the use of executive agreements is, in fact, constitutional, but their understanding of constitutional change outside of constitutional amendment should be anathema to those who advocate what is popularly known as "strict construction," which -- whatever it is -- seems to be at least the mantle of interpretive authority used by most of those challenging the use of the filibuster for judicial nominations. In toward the end of the hearing in the Senate Rules Committee last week (linked here), Senator Trent Lott said something along the lines that he was just reading Article II, Section 2, and saw a supermajority requirement for treaties but not for nominees, and how, then, can it be that the Senate could add a supermajority requirement through a filibuster? This argument has been repeated by lots of people, including folks at Cato, Senator and former Texas AG John Cornyn (who calls filibusters of judicial nominees "uniquely offensive to the nation's constitutional design"), the Christian Broadcast Network, Senator Mitch McConnell, George Will (and the folks at Powerline), and Rush Limbaugh and his ilk (can't find a quote, though).

If the Senate can effectively delete a supermajority requirement for treaties by creating a whole new category that is subject to majority requirements instead (effectively killing the Senate's antimajoritarian, high-transaction-cost-imposing check on the President as chief diplomat), then I see no reason from the start why Senators can't also effectively alter the nominations clause, as the Republicans have described it. I'm not sure that Dems have done this, but let's assume that the Reps are right anyway for the purposes of argument and see a defense of TPA under Article II, Section 2. You can draw a distinction between adding to and subtracting from Senate power, but as soon as you do that, you have stepped away from the first pass at the hollowed ground of "Founders' intent" and moved in the direction of expediency, functional accounts, and, well, politics. That's fine with me. But it should also shift the debate away from the thunderous invocations of original intent we've seen on occasion in this debate, however rhetorically and emotionally satisfying such pronouncements might be, and however much they may appeal to a presumed simplistic constitutional patriotism of voters.

FRIDAY'S BOMB IN DRESDEN

A suitcade bomb was discovered in the railway station in Dresden Friday; a traveller reported the suitcase to authorities and they cleared the packed station (Friday was the start of a holiday weekend) and defused the bomb. The American press has not picked up on this story. Perhaps it's good that they haven't: it's not necessarily good for the press to dramatize terrorism issues. But the bomb at least reminds us that other countries are targets of terrorist attacks of one sort or another, and it should also lead us to wonder how those countries have dealt with their threat and if there is anything we can learn from them.

The bomb was made with what authorities called "unconvential" means, including a pressure cooker, which the Tagesspiegel says was also the bomb-making method of choice for four Algerian terrorists convicted in 2000 of planning to blow up a Christmas market in Strassburg. These individuals, it should be noted, were tried through the German civilian court system.

The editorial page of the Tagesspiegel notes that Germany is a "target of the first order" for terrorists. Authorities are still not sure if the bomb was supposed to explode in the station (where it could have killed and injured hundreds of people arriving minutes after the bomb was found) or if it was supposed to explode on and derail a future train. So far the authorities are not saying that security needs to be beefed up on German railways because extra precautions were already put in place after 9/11. As this FAZ article notes, authorities haven't committed themselves to the view that terrorists were responsible, but they have hinted that they suspect a terrorist link.

One thing that the Tagesspiegel article notes and that I did not know was that right-wing extremists executed a series of terrorist attacks on Italian trains between 1974 and 1984, including an attack in Bologna in 1980 that killed 85 and injured 200.

CANADIANS ARE SMART

Ontario high court approves of right to same-sex civil unions. Good for them. Link via the Law and Courts e-mail discussion list.

NUMBERS

The Senate likes to defeat Supreme Court nominations without an "up or down vote," when it does in fact defeat them.

Let me add some numbers, from Supreme Court nominations, that can help highlight this aspect of the nominations battles. (I don't have lower court nominations numbers right now.)

There have been 147 nominations to the Supreme Court. 27 of them have been rejected. Of those 27, 12 were defeated by an "up or down vote." 4 were indefinitely postponed by the Senate, 6 were withdrawn, and 5 died due to Senate inaction. In other words, one way of looking at these numbers is that in those nominations that were controversial enough to be defeated by opposition in the Senate, less than half were defeated by an "up or down vote." And this isn't even counting those nominations that the President would have liked to have sent to the Senate, but refrained from submitting because of expected Senate opposition.

A filibuster strikes me as just as legitimate as other means of defeating judicial nominations, especially since I am willing to be as realist with respect to constitutional requirements on Senate rules as Republicans apparently are with respect to TPA.

The idea of a requirement for an "up or down vote" is too narrow to account for Senate practice, and too entangled with current partisan battles to be discussed in a dispassionate fashion by most participants in the dispute.

Source for the numbers and an interesting article: P. S. Ruckman, Jr. "The Supreme Court, Critical Nominations, and the Senate Confirmation Process." The Journal of Politics, Vol. 55, No. 3. (Aug., 1993), pp. 793-805.
Link, if you've got JSTOR

MORE: Above, I'm not as clear as I should be: the nominations died due to Senate inaction, not the nominees.

BEING FAIR TO REPUBLICANS

One response to the argument in this post took issue with my characterization of Senate Republicans as being driven primarily by immediate partisan advantage rather than a considered sense of their constitutional responsibility. And over the weekend, in response to my argument, one friend noted that Senators (and others) who object to the filibuster may not be all that happy with trade promotion authority, either.

These are fair arguments. Let me be clear: my interest is in the rhetoric of constitutional discourse; my own narrow research interests are focused on the structure of constitutional discourse with respect to the public. In this particular context, let me state my claim as a thesis: it should be hard, as a Senator, to support trade promotion authority and to attack the filibuster, if you try to base your objections on constitutional text and framer's intent, at least in the way proposed by Senate Republicans. I haven't lined up the votes exactly, but the roll call vote on August 1 of last year on trade promotion authority includes mostly Republicans in the "yea" column, and these are the same people who now are so scrupulous in interpreting Article II, Section 2's differences between Senatorial treatment of treaties (supermajority required) and treatment of nominees (majority implied, perhaps, but not stated).

I'm not arguing that Senators don't care about the Senate. I am arguing that the kinds of constitutional arguments that have been made by Republicans with such interpretive piety are apparently only persuasive when other considerations intervene. This is not intended as a slight, but as a realistic description of the role of constitutional interpretation in heated political fights such as this one. Constitutional requirements are treated in a realistic fashion -- ignored in TPA because Republican Senators (in a high politics manner -- Balkin is usually talking about judges, but the distinction between high and low politics holds for elected officials as well) like trade and acknowledge the denseness of economic networks in the modern economy and the functional necessity of giving the President a free hand to negotiate trade treaties. Read the bill's praises of the benefits of free trade. Hence they ignore the Article II, Section 2 supermajority requirement. But Republican Senators want to be able to vote in favor of Bush's judicial nominees and want, in this narrowly divided partisan environment, to be able to put people they like on the court, hence they push an Article II, Section 2 argument.

However inconsistent Senate Republicans are being with respect to the bindingness of Article II, Section 2 Senate voting rules, they are being consistent in three ways. First, in both TPA and the nominations, they are supporting a President of their own party who shares their policy goals. Secondly, in both they are arguing for majority rule as a principle -- understandable in a narrowly divided partisan environment if you assume short time frames. Thirdly, they are being realistic with respect to the function of constitutional requirements, viewing them as to be read in context with broader political considerations.

And by the way, the Senate Rules Committee hearing on the nominations filibuster is really, really interesting. Here's the link (via How Appealing)

HABERMAS AND DERRIDA ESSAY

There's a (better) translation of Habermas and Derrida's essay here. I'm not quite sure what the source of this translation is, but it's a lot more readable and complete than mine, although I want to look at it in more detail. Chris Bertram and Jacob Levy also have some thoughts on the essay (Jacob simply calls the piece "important but disturbing). More later.

TODAY'S "TO DO" LIST

Just drove in from a wonderful weekend just outside DC visiting Anita and her wonderful family.

Here is your to do list for today:

• Read two new papers on Florida's 2000 election fiasco (and brainstorm on how you're going to convert your sentiments into productive political action). Links at Rick Hasen's Election Law Blog.


• Dig out your old copy of Green, turn up the volume and remind yourself of how nice life can be. This gets my vote as best road trip music for the summer.


• Don't bother listening to conservative talk radio today. In case you hadn't noticed, it's basically just bash Hillary day today anyway, so unless you want to hear grown men (and some women, too) engage in the dubious pleasure of wallowing in vague sentiments of anger and frustration, put on NPR instead. (And MAN! eastern Pennsylvania is a news radio wasteland! Everyone's either trying to enrage you or save you, sometimes in the same segment!)[MORE: As you'd expect, perhaps, the online world has followed suit, much to Josh Chafetz's chagrin. Get it out of your system now, folks, so that when Hillary Clinton runs for President in 2008, you'll have already cashed in all your anger credits.]


• If you've missed it, listen to this story from Here and Now and remind yourself of how nice life can be sometimes.


• Bookmark Lawrence Solum's discussions on stare decisis and take a bite out of them.


• Read David Cole's commentary on Ashcroft's testimony last week, through the link at Talk Left.

Definitely enough after a seven hour drive.

ARTICLE II SECTION 2 SNOW JOB?

The President's defenders claim to smell a constitutional rat in the Senate Democrats' filibuster of judicial nominees, in particular because Article II, Section 2 says the following:

[The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law

A filibuster of judicial nominees, so the argument goes, adds a supermajority requirement to the second part of this clause.

When is the last time that Article II, Section 2 has been in the public spotlight? You guessed it: the discussion of trade promotion authority.

But the Presidential approaches to constitutional interpretation in these two cases are at odds with one another. At the USTR website, for example, you can read the following lines:

"The Constitution grants each chamber the authority to establish its own rules of procedure, and it makes sense for Congress to limit itself to straight up-and-down votes on certain resolutions, such as base closures and adjournment motions."

And on the President's websites on Trade Promotion Authority, there isn't a lot about Article II. In other words, even though there is a clear command that the Senate agree to treaties by a supermajority requirement, "it makes sense" for Congress to limit itself to a simple majority vote in certain cases, some of which arguably fall within the realm for which the framers would have intended to require a supermajority. When Article II, Section 2 helps your case, you push it hard, but when it hurts your case, you ignore it.

Very interesting indeed. I'm not sure how Republicans can argue that Senate Democrats are unconstitutionally changing Article II's simple majority requirement for approving judicial nominees, just a mere year after they pushed Trade Promotion Authority, which arguably alters the Constitution's requirement that Senate give advice and consent on treaties AND approve them by a supermajority.

The lesson here, as I see it, is twofold. First of all, President Bush -- indeed, any President -- can be expected to advance arguments that expand the realm of executive power. Bush is doing so in a variety of areas, including in his relationship with the Senate. To the extent that they roll over and allow the President to expand his power, Senators are entering into a devil's bargain: acquiescing in the diminution of Senatorial power for immediate partisan ends that may come back to haunt them when a different President inhabits the White House.

Secondly, constitutional arguments are no more or less strategically employed than other kinds of arguments. People use such things as "framer's intent" when it suits them, but terms of constitutional interpretation are part of a dense network of analysis that is employed in a complex and shifting fashion.

All in all, with respect to the President, I think we're seeing a relatively pure case of Federalist #51's words:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Here, the interest of the President is to expand Presidential power. Senate Republicans are acquiescing for immediate partisan advantage, and perhaps because they agree with this particular President, perhaps because they are convinced by the particular arguments advanced in each case. But the end result is a double expansion of Executive power (expansions that ironically rely on two mutually incompatible approaches to interpreting Article II, Section 2).

MORE: more on this, above.