THINGS I LIKE: UNSOLVED QUESTIONS

Southern Appeal recommends Brian Anderson's Opinion Journal piece on Senator Schumer (from the fine state of New York) and the "incalculable damage to our political fabric" that Anderson believes Schumer and his ilk have created by their approach to the judicial selection process.

Here's my outline of Anderson's argument:

1) In using private opinions and predicted (conservative) outcomes as criteria for his acceptance of judges, Schumer has disregarded both the Federalist and Senate history, which establish "integrity, intelligence and temperament, and faithfulness to the rule of law" as the only acceptable criteria for judicial selection. Bush's judicial nominees satisfy all of these criteria.

2) In embracing Schumer's view of the judicial selection process, Democrats have taken another fateful step on the Solumesque (Solumanian? Solumian?) "downward spiral" staircase.

3) Like Priscilla Owen, most Americans like parental notification laws; Justice Brown won handily in a retention election. Thus, neither are "outside the mainstream," as Democrats claim, but Democrats clearly are.

4) Liberals have pushed for an activist judiciary "for decades," while conservatives promote "originalism" as a means to counter judicial activism. Originalism threatens "the left" because it threatens "policy gains" that are not supported by majority opinion (see point 3).

5) Democrats attack originalism because they see it as ideological, but they attack originalism unfairly. Originalism does in fact threaten their policy goals, however (see point 4).

6) People should vote for Republican Senators in order to get around the restrictions on invoking cloture. Aside from allowing Republicans to confirm President Bush's judicial picks, a filibuster-proof supermajority in the Senate would restore the traditional standards of judicial confirmation (see point 1).

I've tried to reduce the piece to its argument, which of course makes it a little less interesting (and less colorful) than the whole, which is -- in my view -- an unfair attack on Senator Schumer and the Democrats. Frankly, I'm tired of these kinds of arguments because they start at the wrong end and never convince anyone of anything they don't already believe, but I suppose that's the point of publishing an editorial in Opinion Journal rather than trying to write a serious research piece on current Democratic approaches to judicial selection.

If I were writing a research piece on the Democratic approach to judicial confirmation, perhaps responding to the kind of ideological editorialist account given by folks like Anderson, I would want to ask one, some, or all of the following questions:

Has it in fact been Senate practice to look exclusively at "integrity, intelligence and temperament, and faithfulness to the rule of law"? Aside from how Senators would describe their selection criteria, is there any independent means of determining what the critieria have in fact been in the judicial selection process? In Justices, Presidents, and Senators, Abraham argues that in addition to qualifications, Presidents have chosen Supreme Court justices based on personal friendship, geographical and other "representational" factors, and ideological direction. How has the selection process differed for lower court appointments? Is it true that Republican presidents, beginning with Reagan, have also used ideological factors in selecting their nominees, as Sheldon Goldman and others have argued (if memory serves)? If so, is there any meaningful difference between Senate use of these factors and Presidential use of these factors?

How "originalist" have President Bush's appointees been? If only the blocked ones have been originalist, then why did President Bush nominate, and the Republican majority Senate confirm, 168 non-originalist judges? If there are self-proclaimed originalists among the 168 confirmed judges, why didn't Democrats block them as well? How helpful is originalism here, not just as a label for a preferred jurisprudential approach among conservatives, but as a variable in the confirmation process itself? Is Janice Rogers Brown really an originalist? Hasn't she also called for conservative judicial activism along the lines of what she called Lochner-lite (praising some recent regulatory takings cases decided by the Supreme Court on decidedly non-originalist grounds)?

How helpful is the concept of "mainstream" here, not just as a legitimacy-enhancing slogan, but as a description of the relationship between public opinion and judicial decisionmaking? Should judges be "mainstream?" And why do some Republican Senators -- like Orrin Hatch -- invoke the image of "milk-toast" judges who are the only ones likely to be confirmed if the partisan wrangling continues? Is the mainstream "milk-toast?" Is there a disconnect between the mainstream of judicial culture, the mainstream of party opinion, and the mainstream of the broader political culture, as Perry and Powe have recently seemed to argue?

Do retention elections in judicial races measure public opinion accurately? What do retention elections establish?

If I wanted to connect the research to my own current research agenda, I would wonder about the significance of the asymmetrical political gains that accrue when "originalists" are confirmed to the bench, and I would also be interested in the attraction of "originalism" as a political slogan in the judicial confirmation process and in contemporary conservatism more generally.

At any rate, those are some of the things I'd be interested in thinking about. Take those questions and run with them if you'd like.

MORE: Professor Solum discusses Anderson's piece here with reference to his model of judicial selection.

JACK BALKIN ON THE FEDERAL MARRIAGE AMENDMENT

Read Jack Balkin's latest argument on the FMA as a "bait and switch game," here. He argues that the amendment is aimed at preventing more than simply "gay marriage" and is instead aimed at preventing enforcement of laws that grant any official recognition of same-sex unions for any purposes, anywhere in the U.S.

For my views, and some links to what the proponents of FMA are really concerned about, see my post here ("Cannons, Gnats and the Federal Marriage Amendment"; I've even got a picture!) and here.

PERSPECTIVES ON THE BOMBINGS IN TURKEY

The Hindustan Times tries to answer why al Qaeda - types have attacked Turkey recently, here. Among the reasons noted in the article:

• Punishing Turkey for its relationship with the US, which has been improving. The Turks agreed to send troops to Iraq, though because of sensitivities over Kurds in northern Iraq, the troops probably won't be sent.

• Hurting Turkey's economy, which relies on tourism and is emerging from a four-year recession.

• Marring Turkey's efforts to become closer to Europe. European soccer officials postponed two international matches scheduled for next week in Turkey.

• Punishing Turkey for its close ties with Israel. The two have a defence pact, and Turkey has worked to encourage Israeli-Palestinian peace efforts.

One should also note that Turkey is up for membership in the EU, and that the bombings there have reinvigorated the debate over whether or not Turkey's membership would somehow "import" terrorism to European soil. Read this article in the Tagesspiegel, which notes that German CDU leaders have voiced their worries about such a possibility. The Tagesspiegel quotes CSU (Bavaria's CDU) politician Ingo Friedrich as claiming that islamists could see Turkish membership in the EU as a "forceful" european appropriation of a "core country in the Islamic world" and that this could lead to increased terrorist violence. The governing SPD in Germany has accused the opposition of instrumentalizing the issue for electoral purposes, but it should also be said that the CDU is not uniformly against Turkish EU membership; as the Tagesspiegel notes, some CDU leaders have even called for more support of the move. See also the Financial Times Deutschland on the political line-up in Germany on this issue, as well as this article in Reuters Deutschland.

This article in Le Figaro has some additional information on the perpetrators of the attacks last week, and this article has a nice round up of the mixed EU-membership related reactions to the bombings. And this article in La Libre Belgique issues a call for creative long-term strategies to deal with the challenges that al Qaeda poses for europeans.

The title of the Libre Belgique article, "The Bosphorous -- that's Europe," indicates the author's perspective, and it's a good one: Europe can't avoid the issue of terrorism because it's already arrived in Europe, just in case anyone is foolish enough to hope or believe otherwise. Thus, German opponents to Turkish membership in the EU are probably engaging in wishful thinking -- if we keep our heads down, ditch the effort to make Turkey part of Europe, pull up the drawbridge, then we can sail along in fortress Europe and avoid ticking off al Qaeda types too much.

For some blog commentary, see Dan Drezner, Chris Bertram at Crooked Timber, and Jim Joyner. Dan and Jim take the bombings as signs that al Qaeda is "falling apart," although for me that seems a little bit too much like the "more enemy attacks means more success on our part" reasoning that seems odd when President Bush says it. One of the french articles I saw noted that some in Turkey are speaking of a Turkish September 11th. I would hazard a guess that a series of violent attacks in Istanbul hardly heralds the end of al Qaeda. Recall that half of Istanbul is geographically part of Europe, and that the Bosphorous is a critical trade route for the Balkans and beyond.

BOSTON SUBWAY ARTISTS SEVERELY RESTRICTED

Boston goes after subway artists and tries to paint the T with the aesthetic from a 1950s sit-com (and I'm being charitable).

Read the new regulations here. Highlights include dress restrictions, hours restrictions, instrument restrictions, a registration procedure that requires performers to have a valid government-issued ID and declare whether or not they are a U.S. citizen. I especially like item #11:

11. Each Performer is prohibited from using drums, trumpets or trumpet-like instruments, horn instruments, and electric guitars, or any electric instruments, as they are no longer instruments suitable to the subway environment. Note: the use of a keyboard to simulate these instruments or drum sounds is prohibited. In addition, the use of amplifiers by Performers in the subway system is strictly prohibited.

Sign the online petition here.

My brother sent this information along to me. If you live in Boston or ever plan to go there and want to preserve one of its distinctive charactistics, give Mitt Romney a call. I'm sure he'd love to hear from you. You might want to mention gay marriage while you're on the line as well.

Here is some contact information:

• Governor & Legislature, State House, Boston, MA 02133. 617-722-2828
• Governor's telephone (617) 725-4005 and email: GOffice@state.ma.us

• Citizen's info website to determine your legislator: http://www.state.ma.us/legis/legis.htm

• MBTA Advisory Board, 177 Tremont St., Boston, MA 02111. (617) 426-6054. advbrd@erols.com

• MBTA General Manager Michael Mulhern, 10 Park Plaza, Boston, MA 02116. gm@mbta.com

JOSCHKA FISCHER AT PRINCETON

In case you missed it, read The Daily Princetonian's account of German Foreign Minister Joschka Fischer's speech at Princeton yesterday. Read also this transcript of Fischer's PBS interview with Ray Suarez.

I wasn't at the speech, but I am struck by the emphasis of the coverage of some of the German papers. FTD and FAZ are very interested in the fact that Fischer argued that al Qaeda exemplifies a new form of totalitarianism, and that strong transatlantic cooperation is necessary in order to combat it. Note this article in Financial Times Deutschland, and this article in FAZ.

THANKS

Marstonalia is one year old today. Thanks for all who have stopped by, given me encouragement, and, perhaps most importantly, taken the time to express their disagreements with me, both on-line and in private.

I started off thinking that I would spend a lot of time writing on what's going on in foreign newspapers, partly to keep in touch with the world and partly to keep my language skills up. Quickly I got sucked in to commenting on things that I care about for both personal and professional reasons; most of these comments have revolved around judicial politics and my growing sense of unease about Republican policies in the areas of judicial nominations and retrenchment.

This second category -- critcizing Republicans and, the flip side, praising liberals -- has led one friend to describe my comments as increasingly "Manichean." Point well taken. I'm not really a dualist at heart, and I don't want to play one on the web.

TURKEY'S THE TARGET?

Eric Muller wonders whether Turkey was really the target of the bombing today.

The target was Jews, praying in synagogues. That was no more an attack targeting Turkey than the July 1994 attack on a Jewish Community Center in Buenos Aires was an attack targeting Argentina.

If the attack wasn't just an attack by an anti-Jewish group pure and simple and was instead the product of al-Qaeda types, then it should be pretty clear that the target wasn't simply Jews: Turkey is the prime example of a successful secular majority muslim state; and, more importantly, according to Paul Berman (whose excellent Terror and Liberalism I got around to reading this week) and others, for bin Laden, Ataturk's abolition of the Caliphate in the 1924 was a defining event in the historical account of the assault on the supposedly true principles of Islam. Berman notes that this destruction was so fundamental as to merit mention in bin Laden's October 7, 2001 videotape. See this account of the message of the tape. It's worth understanding that context, since it is probably the context within which the attackers themselves understand the bombing.

MORE: Sorry: Prof. Muller was comparing today's attacks with last week's, actually, and he was wondering whether Turkey was the target of those attacks, but my point still stands.

GOODRIDGE

I'm with SKBubba on this one, basically. Even though the campaign rhetoric next year is likely to be unedifying at best, I look forward to being able to advance the argument that Americans are fundamentally generous people who are not threatened by the possibility of extending marriage to same-sex couples. There has been a predictable reaction from some quarters to Goodridge and related developments, but I predict that those who want to advance an exclusionary approach here will probably stumble over the fact that Americans are basically tolerant, sensible, forward-looking people who do not need to define themselves primarily by whom they exclude from the enjoyment of official recognition of the seriousness of their love of each other. The anxieties expressed by some folks will look like private obsessions rather than grounds for the use of the legal power of the state.

And in the meantime, read Adam Felber's Save My Marriage. Try not to read it while you're eating, unless you've got someone around who knows how to do the Heimlich maneuver. Or a good, sturdy chair.

MORE: Case name error corrected. Where's my editor?

MORE: The folks from the DNC make a similar point here. That's something. I hope that we're right.

I DID NOT KNOW THAT

From Oliver Houck, "With Charity for All," 93 Yale L.J. 1415:

By 1981, the [Pacific Legal Foundation]'s annual budget had grown to over $ 2,000,000, more than eighty-seven percent of which came in major contributions from among others, Southern Pacific (one of the largest hand-holding and development corporations in California), San Diego Federal Savings and Loan, Safeco Insurance, Title Insurance Corporation, Knudsen Corporation, Santa Fe Railway Company, Fluor Corporation, Arthur Young and Company, several corporate foundations (e.g., Weyerhauser, Bank America, Gulf Oil, Monsanto, Coors, Alcoa, Ford, ARCO, Venus Oil, Superior Oil), and various farm, cattlemen's, labor, construction, and real estate associations. These contributions have been of sufficient size and regularity to enable PLF to set aside a considerable endowment: $ 392,729 in 1981 and $ 696,529 in 1982. PLF's audited financial statement of February 28, 1982, showed total revenue at over $ 2.7 million. (1462-3, footnotes omitted)

Go looking for commentary on former Supreme Court Justice Lewis Powell's famous 1971 memorandum "Attack on American Free Enterprise System," and it's no telling what interesting nuggets you'll turn up -- as long as you've got access to good research resources, that is.

*BLUSH*

Thanks, Chris!

Man, I followed Chris's links to other Davidson College blogs, and now I feel old. Getting out the bottle of Geritol right now, in fact. . .

THINGS I LIKE: DIALOGUE

[Note: in an effort to promote actual dialogue, I'm writing this post as a friendly letter addressed to my interlocutor, rather than as a post addressed to imagined readers whose opinions I am trying to influence. Judge for yourselves whether or not this is a good approach!]

Dear Mr. Sandefur:

I have enjoyed our friendly conversation on the subject of regulatory takings. As I noted in my last post, I think that you are using your blog for an important purpose: attempting to develop and present ideas at a high level of theoretical sophistication. The fact that I don't agree with your position makes the exchange more interesting for me than it would be if I were simply reacting to the views of an ideological compatriot. In addition, my (not so secret) hope is that I might actually learn something about libertarian views on regulatory takings, as well as learn something about the soundness of my own views. So, thanks for devoting some of your limited time to this common enterprise.

On to substance. As a preliminary matter, I fear that you may have misunderstood a few points from my last post, which was a hurried response to your detailed discussion on the constitutional foundation for a libertarian approach to regulatory takings. At the end of the post here, you contend that I argue that libertarian legal foundations such as the Pacific Legal Foundation are attempting "'to constitutionalize' protection for property rights." I apologize for any misunderstanding here. Property rights are in fact constitutionally protected -- here in the U.S. more so than in any other country on the planet, in terms of both scope and breadth, as far as I understand it -- and I did not mean to imply that libertarian legal strategists should shoulder that protection alone, as much as the process of legal advocacy might create the impression that such strategists are alone responsible for property rights protections. Clearly, there is a long history of such protection, and that protection serves important purposes that are deeply rooted in American culture. My point was more narrow, as can be seen from the full context of my remarks. I contended that PLF and IJ and others have developed an account of takings that would increase the protection of property rights beyond the point currently recognized in U.S. constitutional law, and that the central goal of these groups is:

to constitutionalize that additional protection, make courts the guardians of that protection, and, in the name of attacking what Mr. Sandefur calls the "Regulatory Welfare State," engage in a process of cutting back even the limited government regulation that exists in this country.

I hope that it is clear that pushing the law in one direction -- namely, in the direction preferred by the intellectual leaders of the resurgent property-rights movement interested in increased attacks on government power in the name of dismantling the welfare state -- is quite a different thing from protecting property rights pure and simple.

There is a deeper problem in the discussion here that our misunderstanding reveals. You have a developed account of property rights, one that is, in a cultural sense, not the accepted or consensus meaning in U.S. constitutional law, in high-level theoretical discourse on law, or in ordinary conversation. In fact, the main question around which our short conversation has circled has been the question of the appropriate definition of property rights in their relationship to constitutional text, judicial power, the police powers, the welfare state, and human goods such as sexual privacy and autonomy. This is a very interesting discussion -- and my suggestion that we continue it over bourbon here in Oswego was intended seriously, although, as I'll admit, it is rare for me to get out-of-town visitors here, and it will become even less likely as winter approaches. My basic sense is that these kinds of discussions are best pursued with a bottle of Woodford's Reserve on hand, though.

But we should try to agree on basic terms. For the purposes of the discussion, I propose that "property rights" be made the focus of a problematizing discussion rather than the staging area from which a rhetorical Feldzug might be advanced. Let me offer a second thought here as well. It seems to me generally true that as much as I want to reject the military metaphor here in favor of a friendly conversation, it is true that the condition of being at rhetorical loggerheads has its hermeneutic use. The experience tends to reveal something about the depth of the disagreement that serves as the background for any given serious discussion.

Clearly, here the gulf is quite wide. Where you see an unamerican, collectivist welfare state leviathan, I see the sum total of reasonable government regulation under modern economic and environmental conditions. Where you see a failure to compensate investors for the economic burden of development moratoria, I see a reasonable attempt to hold to the status quo while the appropriate regulatory authorities take the necessary, if messy and time-consuming, effort to formulate and enforce environmental standards (Tahoe). Where you see an attempt by the city of New York to impose the costs of a public good on unsuspecting investors and landowners, I see an attempt by the city to engage in historical preservation through appropriate means and without imposing enough of a burden to trigger constitutional concerns (Penn Central).

Unfortunately, the world of work intervenes and I should close at this point. Still, I hope that we can continue this discussion in a straightforward and mutually beneficial manner, and one in which, as I noted at the end of my post here, meaningful distinctions don't get lost.

Best,

Brett Marston

MASTER AND COMMANDER

Like Kevin Drum, I went to the the-a-ter to see Master and Commander recently. My reaction: eh, not bad, but I kept wishing I was watching a full screen, technicolor version of Billy Budd.

THOMAS SCHALLER

Jim Joyner links to this piece by Tom Schaller, which is a print version of a talk that he gave here at Oswego a few weeks ago. Schaller counsels the Democrats to forget about winning in the south and instead focus on what he considers to be a new swing region, the western states, where Democrats have been making significant gains over the past decade. I'm sympathetic to this argument, and not only from a strategy point of view -- it would allow Democrats to stop trying to defend cultural ground that they really shouldn't want to win anyway. Have to think about this some more, though.