Law and politics worldwide, etc.
After Bush v. Gore, I will never read these kinds of stories with the same feelings. What "letter of the law" can one really rely on for the per curiam decision in Bush v. Gore? Would it be that part of 3 USC Sec. 15 that leaves controversies over electors up to Congress to decide?
Oh well.
How should judges approach the actions of Congress in the recent terrorism cases? As I understood the arguments, the government claimed yesterday that the 9/18/2001 congressional authorization of the use of force indicates congressional intent to allow for military detention of individuals as "enemy combatants." Here's the relevant language of the resolution:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (emphasis added)
In this context, consider some of Lief Carter and Thomas Burke's arguments against the search for legislative intent, and their support for inquiries into statutory purpose:
Judges who use a 'legislative intent' approach. . .attempt to resolve statutory conflicts by studying the intentions of legislators who voted for the statute. They try to figure out how the legislators thought that the statute should apply to the case in question. . .A legislature is an organizational unit of government. By itself a legislature can no more intend something than can a government car or an office building. People intend things, and, because the elected representatives in a legislature are people, they may intend something when they vote. . . . However, here three difficulties fatal to the cause of legislative intent arise.
First, intent is subjective. It is usually impossible to tell with 100 percent certainty what anyone, ourselves included, intends. Thus, if a majority of legislators were fortunate enough to intend the same thing, it is highly unlikely that judges could actually discover what that thing was. . . .
Second, we know enough about politics to know that in all likelihood the individuals making up the voting majority do not intend the same thing. Most will not have read the statute they vote on. By casting their vote some will intend to repay a debt, or be a loyal follower of their party leaders, or to encourage a campaign contribution from a private source in the future. If we want to deduce collective intent on anything, we must take a poll, and the only poll we ever take of legislators is when the presiding officer of the house calls for the vote to enact or defeat a bill. "Yes" voters intend to vote yes, and "No" voters intend to vote no, but that's about all we can accurately say about their intentions.
The third and most serious difficulty is that . . . it is highly unlikely, if not absolutely impossible, that they intended anything about the unique facts of the case before the court. Legislatures simply do not confront the concrete and always unique factual case. . . . In all probability no one in the legislature foresaw the precise problem facing the judge, and it is even less likely that the legislature consciously intended to resolve the case one way or another. (Reason in Law, 6th ed., 78, 81-82)
Statutes become meaningful only to the extent that their words fit some intelligible purpose. . . .[J]udges who feel they must articulate a sensible statement of purpose will necessarily search. . .into dictionaries, canons, verbal contexts, and competing social policies as well as history itself. They will coordinate the materials in order to reach a confident articulation of purpose. (84, 88)
Souter's point, as I understood it, was that even if the congressional resolution that Congress passed just after 9/11 might be read as authorizing presidential detentions of US citizens for some period of time at and after the peak of the crisis, at some point further and more explicit congressional authorization would be required to support long-continuing detention (or new detentions initiated a while after the peak of the crisis).
Via the folks at Claremont, we find this testimony by Prof. Jeremy Rabkin in support of a congressional resolution that reads as follows:
Resolved, That it is the sense of the House of Representatives that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States.
My worry about this particular resolution, though, is that it is partly an attempt to take a swipe at rulings that I think were rightly decided. Lawrence v. Texas seems to be at the center of this particular controversy (and it is the only decision cited disapprovingly both by Congress in the text of H.Res 568 and by Prof. Rabkin). So instead of saying that it should still be the law in this country that we can throw gay people in jail, one argues that such decisions are really an importation of "foreign ideas" into our homegrown, ruggedly particular jurisprudence. Instead of members of Congress actually voting in favor of throwing gay people in jail, they grumble -- darkly -- about a foreign invasion that will eventually erode the foundations of the republic.
Fair enough, I suppose. And to be fair, many people are quite willing to attack Lawrence as wrongly decided and as the expression of elite opinion that is more at home in Strasbourg, France than in Strasburg, PA. At this stage in the game, after Lawrence, such talk is pretty cheap for legislators, much like pro-life talk was cheap between Roe v. Wade and Webster (see Neal Devins, Shaping Constitutional Values, 142-143). After Roe, Devins argues, legislators could respond to pro-life constituencies without much fear that they would be punished for actually restricting abortion rights, since the courts were there to satisfy pro-choice constituencies. When the Court signaled in Webster (1989) that it was willing to countenance rather severe restrictions on abortion, legislators perceived that the courts might not bail them out of trouble with pro-choice constituencies, and the tide of pro-life legislation slowed to a trickle. I suspect that something similar is happening here, post-Lawrence, and legislation like H.Res. 586 bobs up and down in the wake waves.
Prof. Rabkin argues that citations to foreign precedent "will encourage judicial activism." But is a habit of reference to foreign precedent any more an invitation to judicial activism than a habit of reference to precedent of the home-grown variety? In the context of sodomy laws, there is already enough precedent lying around for any position that an appellate judge might wish to take. [Or, a Supreme Court Justice, rather.] Think that sodomy laws are really constitutional? Well, just rely on Bowers and reject Lawrence, which overturned Bowers. Stranger things have happened. Think that abortion can be prohibited under our American Constitution? Just go back to the pre-Roe understanding, as Scalia has shown that he is willing to do. Such rulings would no doubt be attacked as "activist" by people who rely on Lawrence and Roe, but that says more about the malleability of the word "activism" than anything else.
What this particular attack on Lawrence ignores is that the reference to foreign precedent was partly a response to the argument in Bowers that the western world was united in condemnation of sodomy. See here. It was Chief Justice Burger who invited an appeal to foreign experience to justify approval of Georgia's anti-sodomy statute in Bowers. He was just flat out wrong, and in Lawrence the Court spent some time pointing that out.
Take finally the Court's ruling in Atkins, which has also aroused the ire of the no-citations-to-foreign-precedent crowd. Prof. Rabkin contends that in Atkins the Court "adopt[ed] European views on capital punishment for murderers of subnormal intelligence." I'll leave it to the careful reader to wonder whether a few lines in footnote 27 of the majority opinion in Atkins really prove that it is "European" to believe that we shouldn't execute mentally retarded offenders. The opinions read to me more like a genuinely home-grown dispute between red-blooded American judges who disagree over how to read the Eighth Amendment's ban on cruel and unusual punishment. Does Prof. Rabkin really want to contend that the only "American" solution to the problem is to execute the mentally retarded?
Brilliant. Just brilliant. (Anita sent me the link. I don't think it was a hint of any kind, and I'm not sure I would be able to decipher it anyway.)
Heavy stuff in the SC today.
Is it a bad sign when the Chief Justice gets your name wrong when announcing the case?
And listen to Dunham's passionate conclusion of his argument in Hamdi. My transcription doesn't capture the drama of the moment, so listen for yourselves (end of the file, here).
Congress tomorrow could take these military regs and say 'this is the law, we authorize the executive to detain people and to give them hearings the way the military says,' and then it would be lawful, but Congress hasn't done that, and I respectfully submit. . . that until Congress does act, these detentions are not lawful, and I would respectfully ask this Court to step up to the plate and say so.
There's something I don't understand about the government's argument in the Cheney task force case heard today at the Supreme Court. (This is not an area of the law that I am very familiar with, so this is a tentative assertion.) If I understood him correctly, Solicitor General Olson argued that:
The Solicitor General claims that if the presumption of regularity were dropped, all executive branch officials could be hauled into court whenever anyone challenges a government claim that an advisory group was composed of government officials only. According to the Solicitor General, this would a) distract the executive branch and b) prevent them from asking private citizens for confidential advice.
As to a), note that the extent of the distraction is, in all likelihood, inversely proportional to the extent to which the executive branch is telling the truth.
As to b), perhaps, but if the Vice President is willing to admit that he called up outside groups for advice (as was said often today, government officials call up all sorts of people for advice all the time), what harm is there in court inquiry into how formal the process of getting the advice is? The whole point of the open record statute in question here was to make more transparent the process by which the executive branch gets advice from outside groups. Now if the discovery process requires disclosure of the content of all advice of outside groups, then there might be a problem. But I don't think that that was the case here. As I said, though, I could be mistaken in that belief, and my hold on all of these issues is shaky at best.
Cheney, at Westminster College:
Like his friend [Winston Churchill], President Truman recognized that imperial communism demanded a comprehensive, long-term response on many fronts. And he made absolutely clear to the world that American policy would confront the danger squarely. In a short time, our government created the architecture of national security that we know today: the Department of Defense, the Central Intelligence Agency, and the National Security Council. To defend ourselves and other free peoples, the United States, joined by Britain, helped to found NATO, and the President announced the Truman Doctrine to help free nations resist communist subversion. To build and strengthen our new democracies, our government led in the reconstruction of Japan, and devoted billions to European assistance through the Marshall Plan. And when aggression occurred on the Korean Peninsula, it was President Truman's decision and America's sacrifice that saved South Korea.All those early commitments were absolutely essential to victory in the Cold War, and they helped to produce unprecedented success for the cause of freedom. And to look back on the pivotal decisions of the 1940s and '50s is to be reminded that certain moments come along in history when the gravest of threats reveal themselves. And in those moments our response must be swift, it must be confident, and it must be right.
There was, of course, not a lot of "confidence" with respect to the Korean War in 1952. In fact, as I note in the post linked above, it was part of Eisenhower's electoral strategy to call attention to that point, if [often] in a subtle and ambiguous fashion. And it was also part of the Republican strategy in 1956 to portray the Democrats as the party of war and Republicans as the party of peace. Here's a quote from Forward with Eisenhower -- Nixon, a 1956 Republican comic book (from Kernell and Jacobson, The Logic of American Politics, 2nd edition, 426):
Here she is -- Ann Turner. . .Jim's wife. Ann spoke up next at that family get-together. . . [drawing of photograph of a woman]"I remember what it was like when Truman and his crew were running the coutry!" [woman speaking, and woman staring at a picture of man in uniform]
"When Ike flew to Korea in '52, as he promised, I didn't dare let myself believe that he could accomplish anything. . ."[next to drawing of Eisenhower greeting smiling troops]
"But a few months later, our wedding bells rang -- right after Jim came home from Korea. . .that was Ike's wedding present to us!" [beneath drawing of wedding picture]
This story raises a critical question that I have been trying to ask supporters of the Bush administration's policy on Iraq (I also asked Josh Chafetz this question in an e-mail a while back): what are your criteria for failure? What would have to happen in order for you to believe that the administration has failed? I'm not attempting to stack the deck here, either. I'm just wondering how people think about the intervention.
In many wars, the criteria for failure are pretty clear: surrender, loss of territory. For humanitarian interventions, the criteria for failure seem to be: continuance of the humanitarian crisis that triggered the intervention, and, in the long term, the persistence of the conditions that led to the crisis (failed states, ethnic oppression and the resulting tensions, etc.). In the context of humanitarian interventions, the criteria are broader and, in many ways, less clear, than the criteria for failure in WWII, for example.
What about here? Part of the administration's answer is to attempt to employ the criteria for wars like WWII: surrender (in a broad sense, at least), withdrawal of troops from the territory in question. But that's simplistic, because this war has become more like a humanitarian intervention in its goals, and, indeed, was always defended as a humanitarian intervention by the administration (in some moods) and by many war supporters.
Larry Diamond's answer is fairly clear, I think. A lack of effective force for establishing security indicates failure. From the SF Chronicle article:
"You can't develop democracy without security," he said. "In Iraq, it's really a security nightmare that did not have to be. If you don't get that right, nothing else is possible. Everything else is connected to that."
This is not simply a partisan issue. It's one of the inevitable characteristics of an election year -- and of this particular administration's approach to policy -- that any criticism of the administration's policies is denounced as partisan, or worse. That's a shortsighted view, and at any rate it becomes less plausible as people like Larry Diamond voice their concerns.
Quick release of audio files from oral arguments at the Supreme Court is cool.
Would be cooler to allow cameras and video feeds. Indiana allows it, and they do it live. Very cool.
The BJP may be in electoral trouble in the current round of voting, according to exit polls. Today the Supreme Court refused to stop the ongoing publication of exit poll results.
For some regional flavor:
A little too early (in the season) to be talking about a "race," of course.
Feels good, though. Ahhh, spring!
