That pesky due process clause!

Joe Manchin has the demeanor of the manager of a chain gymnasium in a strip mall. I distrust him not only because he’s one of the Beltway’s prized examples of bipartisanship but for being governor when the coaling industry continued its mission of turning West Virginia into an abattoir. If you fuck both your Democratic and Republican constituents, then it’s bipartisan.

I suppose it’s commendable that after Newtown he led the Senate in proposing restrictions on assault weapons, but because he’s such a “centrist” his concept about due process might not stretch far enough to make four Sunday morning talk shows at the same time. SCOTUS has said owning a gun is a protected right under the Second Amendment. It would need an act of Congress amending the amendment or for the Supremes to overrule itself. Elect Democrats to Congress and the White House if you want to make headway. Otherwise, restricting rights with no due process and we open the door for restrictions on other rights.

But this latest alliance between ACLU types and conservatives bothers the hell out of me. Charles Pierce, an expert on drawing up indictments, writes:

Ever since 2001, with several notable and politically impotent exceptions, this same faction of our politics has supported surveillance without due process, rendition without due process, black sites without due process, torture without due process, and the substantial gutting of due process in domestic areas such as the tort system and voting rights, to say nothing of its defense of racial and ethnic profiling, and of police officers for whom due process turns out to have been pepper spray and/or a bullet.

But suggest that someone whom the FBI suspects enough of being a terrorist to keep him off an airplane should be barred from purchasing a deadly weapon and, suddenly, everybody’s a card-carrying member of the ACLU. It’s truly a delightful thing to see.

And then there’s the senior senator from West Virgina, for whom due process is an annoyance. Still, a chap’s got to deal with the blasting thing.

Redistricting? What redistricting?

Even John Roberts must have soul, or at least must occasionally hint that he’s got one. The plaintiffs’ claims in Harris v. Arizona Independent Redistricting Commission proved too much for the Supreme Court, which unanimously ruled that Arizona’s redistricting commission can draw its districts to reflect voting patterns. Guess what they’ll reflect? Guess whom the plaintiffs wanted to benefit?

A fascinating crew circled its wagons around this case. The founder of the Phoenix Tea Party lent his name to the suit. And there’s more:

In 2012, Harris launched a recall petition against Senator John McCain (R-Ariz.), largely because he was upset that McCain had come to the defense of Huma Abedin, one of Hillary Clinton’s closest aides, who conservative conspiracy theorists have alleged is a member of the Muslim Brotherhood. At the time, Harris told the Arizona Capital Times that Muslims should not be able to serve in government. “Have you ever read the Quran?” he said. “I suggest you do so, because anyone that is a Muslim is a threat to this country, and that’s a fact. There is no such thing as a moderate Muslim. If they are Muslim they have to follow the Quran. That’s their religion and that’s their doctrine.”

Several of his co-plaintiffs are members of a conservative group that backed the state’s widely condemned 2010 law authorizing police officers to stop people at will and demand proof of citizenship.

Who else? Hugh Hewitt, for years a fringe plasticine demento in the back alley called Townhall and now beloved of Chuck Todd, joined as a co-plaintiff. I suppose this naked partisanship galled even Alito and Thomas.

‘You believe the guy who is a guy like you’

On the occasion of the release of the HBO film Confirmation about the fall 1991 Clarence Thomas hearings, Professor Anita Hill speaks.

Q: You’ve said of the hearings, “I had a gender and he had a race,” which I took to mean that the senators essentially ignored your race by giving credence to Thomas’ comment that the hearings were a “high-tech lynching.” Is that right?

Here I was, an African-American woman essentially being accused by Clarence Thomas of provoking his lynching. Historically, that is just a fallacy. There was never in the case of lynching — there is just no evidence that African-American women had ever had the power to call for someone to be lynched. Secondly, it ignores the history of sexual abuse of African-American women, and so if you look at the film what you’ll see is that they were willing — even the public, 70 percent of the public when they were polled after the hearings believed Clarence Thomas. Even the public, they were willing to dismiss my experience as insignificant, both racially and in terms of gender.

What the committee did to reinforce that was to take the three other African-American women, who wanted to testify about similar experiences with Clarence Thomas, and to dismiss those women, too — not even call them forward to testify…

You had three African-American women there; nevertheless, they were dismissive of us and our experiences and chose to go with what his experience was. People say, “Well that was really more about his race,” but in the eyes of the Senate, it was about his gender. It was about male privilege. Who do you believe? You believe the guy who is a guy like you…

How the hearings would have gone in 2016 had the Senate Judiciary Committee, chaired by Joseph Biden with hair, taken Hill’s seriously remains one of the great what-ifs. In 2016 the committee would have had to take her more seriously.

SCOTUS: Imposing a health improvement on ‘thousands of women’

Thanks to the benevolence of the Texas legislature, women in this state who want or need an abortion must travel to what are called “ambulatory surgical centers” which must have admitting privileges in local hospitals — privileges that are expensive and that these hospitals can refuse. More than five million women in Texas have access to ten abortion clinics. I would say that this law constitutes an undue burden on these women according to the Casey model to which the Supreme Court gave its imprimatur almost twenty-four years ago. “Undue burden” is one of those glittering phrases that the Court summons to existence when it wants to chip away at legislation without rescinding it, like the “rule of reason” governing the regulation of trusts in the 1910s.

Slate’s Dahlia Lithwick has fun depicting how the Supreme Court’s three female justices shredded Texas clinic advocate Stephanie Toti’s arguments into guitar picks during oral argument for Whole Woman’s Health v Hellerstedt.

Ginsburg begins by asking Keller how many Texas women live more than 100 miles from an abortion clinic. When he tells her that women in El Paso can hop over the border to New Mexico, she stops him short. “That’s odd,” she muses, “that you point to the New Mexico facility. New Mexico doesn’t have any surgical ASC requirement, and it doesn’t have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things.” (This is where I want to call up each of the men who demanded that Ginsburg retire in 2014 and just smile, and smile, and smile.)

Sotomyor tags in: “According to you, the slightest health improvement is enough to impose on hundreds of thousands of women.­­ Even assuming I accept your argument, which I don’t, necessarily, because it’s being challenged, but the slightest benefit is enough to burden the lives of a million women. That’s your point?”

Ginsburg: “I can’t imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?”

The way it looks to a man illiterate in jurisprudential arcana is this way: it’s easier — a relief — for Texas women to visit New Mexican clinics, which don’t yet boast these “protections,” for an abortion despite the Texas legislature’s stated interest in preserving the health of these women; and a woman’s taking two pills to terminate a pregnancy in front of a doctor is more dangerous than a colonoscopy. Yes and yes! the late Antonin Scalia would have shouted back.

Scalia: St. Hubertus loyalist


We now know what the late Antonin Scalia was up to the weekend he was found dead. The associate justice was hunting as a member of, I’m not lying, the International Order of St. Hubertus:

“Honoring God by honoring His creatures,” according to the group’s website. Some hold titles, such as grand master, prior and knight grand officer. The order’s name is in honor of Hubert, the patron saint of hunters and fishermen.

Honoring God by killing his creatures, I think is the English translation of the Latin phrase.

Poindexter told CultureMap Houston that some of the guests dressed in “traditional European shooting attire for the boxed bird shoot competition” and for the shooting of pheasants and chukar, a type of partridge.

For the hunting weekend earlier this month, Poindexter told the Washington Post that Scalia traveled to Houston with his friend and U.S. marshals, who provide security for Supreme Court justices. The Post obtained a Presidio County sheriff’s report that named Allen Foster as Scalia’s close friend on the trip.

Sheriff Danny Dominguez confirmed that a photograph of Washington lawyer C. Allen Foster shows the same man he interviewed at the ranch the day of Scalia’s death.

From Houston, Scalia and Foster chartered a plane without the marshals to the Cibolo Creek Ranch airstrip. In a statement after Scalia died, the U.S. Marshals Service said that Scalia had declined a security detail while at the ranch.

The friend, Louisiana-born Foster, is an attorney with the Washington firm Whiteford, Taylor & Preston. He is also known for his passion for hunting and is a former spokesman for the hunting group Safari Club.

In 2006, Foster was featured in the Post when he celebrated his 65th birthday with a six-day celebration in the Czech Republic. He flew his family and 40 Washington friends there to stay in Moravia’s Castle Zidlochovice, a baroque castle and hunting park. The birthday bash included “tours of the Czech countryside, wine tasting, wild boar and mouflon (wild sheep) hunts, classic dance instruction and a masked costume ball.”

One of my favorite stories is Gustave Flaubert’s lurid “The Legend of Saint Julian the Hospitalier,” the closest verbal approximation to a stained glass window, in which the hero slaughters a whole continent of walking and crawling beasts until a dying stag puts a curse on him. All Nino was missing was the late William Rehnquist’s robe.

Filling the seat

Well, isn’t this fascinating?

New Public Policy Polling surveys of Pennsylvania and Ohio find that both Pat Toomey and Rob Portman are suffering from very weak approval numbers as they seek reelection to the Senate. Furthermore voters in their states, by wide margins, want the vacancy on the Supreme Court to be filled this year. Their opposition to even considering a replacement for Antonin Scalia has the strong potential to put them in even worse standing with voters than they are already.

Key findings from the survey include:

-Only 29% of voters approve of the job Toomey is doing to 40% who disapprove, and just 30% approve of the job Portman is doing to 39% who disapprove. They’re both very much in the danger zone for reelection based on those low approval numbers. One thing complicating their path to reelection is how bad the overall brand of Senate Republicans is. Mitch McConnell has a 13/56 approval rating in Pennsylvania, and a 14/57 one in Ohio. His extreme unpopularity is going to be a weight on his party’s incumbents running across the country.

-Strong majorities of voters- 58/35 in Ohio and 57/40 in Pennsylvania- think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers- and concerning for Portman and Toomey- is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37. Those independent voters are going to make the difference in these tight Senate races, and they have no tolerance for obstructionism on the vacancy.

This SCOTUS fight is the Dems to lose. They gotta demagogue like mad. Never mind what Joe Biden is supposed to have said in 1992. Most citizens understand the basic logic: the president nominates, the Senate advise. The Senate doesn’t have to consent; it can vote to reject the president’s nominee. Omitted from the jeremiads decrying the way poor Judge Bork was treated is that Bork did get a vote from the full Senate.

The bright, lonely light of Antonin Scalia

That devoted institutionalist Jeffrey Toobin writes a worthwhile epitaph for Associate Justice Antonin Scalia, put to rest this weekend to meet the god whom he hopes will reward his diligence:

Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought. That bubble also helps explain the Republican response to the new vacancy on the Court. Within hours of Scalia’s death, Mitch McConnell, the Senate Majority Leader, announced that the Senate will refuse even to allow a vote on Obama’s nominee, regardless of who he or she turns out to be. Though other Republican senators have indicated that they might be a little more flexible, at least on hearing out a nominee, the chances of a confirmation before the end of Obama’s term appear to be close to nil.

Next time a sympathizer praises Scalia’s intellect, direct them to this interview. To read The Washington Times is to lower oneself into a tub of acid and call it a refreshing, delicious bath. To listen to Scalia read his dissent in Lawrence v. Texas is to submit to a harangue from a road rage suspect before he aims his Explorer at you.

The choler of Antonin Scalia

Whenever I read liberal clerks praising the late Antonin Scalia’s wit and warmth, I mourn the pervasiveness of biography as a prism through which to examine the meanest of lives. To counter the mythmaking, Peter Shane recalls Scalia unleashing thuggish sarcasm on a law student asking a question (if you want to lecture, save the humiliation of students for office or coffee time, not in front of their peers). Praising Scalia’s permanent contributions to American jurisprudence doesn’t prevent Shane from waving the smoke from his eyes:

At the same time, Justice Scalia routinely deployed his methods largely in service of bad causes. In cases on race and sex discrimination, the rights of gays and lesbians, the Eighth Amendment, voting rights, consumer rights, environmental law — pretty much every cause progressives have embraced since the New Deal — he voted the positions of a committed revanchist determined to turn back the political and jurisprudential clock.

Almost as bad, in both dissents and separate concurrences, Justice Scalia was famously prone to lace his analyses with scorn and ridicule for those with whom he disagreed. These were and are texts destined to be read by generations of lawyers and law students, as well as by the general public. They are regrettable not only in their lack of professionalism but because they no doubt help to legitimate a corrosive form of intellectual discourse which confuses contempt with reason, and which has become all too common.

I remember again how he mocked Sandra Day O’Connor in his Webster opinion, how he was unembarrassed about using the “broccoli” example during the first Affordable Care Act, the “Get over it!” spit in Leslie Stahl’s face during a “60 Minutes” interview.

Finally, the question of opinion authorship has mystified for years. Until the clerk system became institutionalized in the 1930s, justices wrote their own opinions. In the modern era Hugo Black and William O. Douglas still did. John Paul Stevens said he wrote first drafts himself. I think John Roberts does too. But reading the recollections to which I linked above it looks like Antonin Scalia, the pungent stylist, commissioned drafts from clerks on which he’d perform editing, heavy or light. What distinguishes the Court of the last fifty years from its earliest iterations is the degree to which ambitious law school graduates fight the constitutional battles. To lead a coterie of ghostwriters dispatching your malice is no small feat.

The travails of Supreme Court appointment

An amateur historian of the Supreme Court, I know a little about the nominations and confirmations of justices, and the road bumps are so infrequent that they stand out: John Tyler’s nomination of Samuel Nelson; Woodrow Wilson’s nomination of Louis Brandeis, which received a backlash that was uncharacteristic then and astonishing now, mostly because he was (a) Jewish (b) a champion of Progressive causes (c) Jewish; and Thurgood Marshall because he was Thurgood Marshall. Even Brandeis’ future chief Justice William Howard Taft considered him a menace (“an evil and a disgrace”) — circumstances recorded in Melvin I. Urofksy’s great biography of the justice. But in the worst of times, as Josh Marshall writes, “a sitting president loses his right to make judicial appointments at the beginning of the last year of his four year term. Never.” Marshall:

Basically, most people simply didn’t care that much as long as the nominee was broadly qualified in judicial terms. In one notable or even notorious example, Justice Brennan, who turned out to be an extremely influential liberal Justice, was nominated in a recess appointment in late 1956. When he came up for a hearing, it went on for only a few hours over two days. The questions focused mainly on whether he, as a Catholic, could be loyalty to the constitution rather than the Pope and then a series of questions from Senator Joe McCarthy about American Communists.

The upshot reality here is one that undermines the whole notion of precedents on either side. The fact is our modern concept of Supreme Court confirmation hearings and the huge importance they play to the two parties is largely a product of the last half century. The simple truth is that Supreme Court vacancies do not happen very often and in the nature of things many fewer happen in the last year of a president’s term. But again, the simple reality.

The Catholic William Brennan, nominated by Dwight Eisenhower in a recess appointment, had to fend off accusations that he would show bias towards Romanism. His response, as recorded by Charles Pierce:

Senator, I think the oath that I took is the same one that you and all of the Congress, every member of the executive department up and down all levels of government take to support the Constitution and laws of the United States. I took that oath just as unreservedly as I know you did, and every member and everyone else of our faith in whatever office elected or appointive he may hold. And I say not that I recognize that there is any obligation superior to that, rather that there isn’t any obligation of our faith superior to that. And my answer to the question is categorically that in everything I have ever done, in every office I have held in my life or that I shall ever do in the future, what shall control me is the oath that I took to support the Constitution and laws of the United States…

His inquisitioners could not know that Brennan would become Earl Warren’s greatest ally in preserving the rights of minorities, as opposed to, say, Robert Bork, who never hid his sympathies for an empowered majority.

The cold eye of Antonin Scalia

William Brennan stared at the happy, bounding figure in the Supreme Court building. “My lord, Bill, have you got a lot to answer for,” Antonin Scalia quipped. The most important liberal justice of the Supreme Court after the retirement of Earl Warren didn’t take it personally. He was touched by “Nino”‘s kindnesses, laughed at his wit. “I am sure that, even when disagreeing, we will be the best of friends,” he told Brennan, an exchange recorded in Stephen Wermiel and Seth Stern’s biography of Brennan.

This situation would repeat itself over the years. Fellow Reagan appointee Sandra Day O’Connor thought he was a delight until he ridiculed her opinion in Webster v. Reproductive Health; her opinion, he wrote, “cannot be taken seriously.” The friendship with Ruth Bader Ginsberg (they rode an elephant!). Teaching Elena Kagan to hunt. Meanwhile the Beltway class asks, and, as of 6:58 p.m. tonight continues to ask, detractors to appreciate him, for “love him or hate him, he was important, a brilliant mind, a wonderful writer.” The continued decadence of political reporting and the permanent DC government reveals itself whenever it believes — there’s no pretending, no cynicism — that legislation and court decisions are banal enough to shrug off; that legislation and court decisions don’t affect people in Kenosha, Cedar Rapids, Stockton, and Sanford; that I’m supposed to praise not bury Scalia when, had he had his way in 2003’s Lawrence v. Texas, I could still be arrested for sodomy in some states, misdemeanor or not. That case gave me plenty of reason to hate him. In his dissent it didn’t even occur to him to bestow nominal empathy to the plaintiffs; even Clarence Thomas, orthodox and more unyielding than Nino, said the Texas law that penalized sodomy was “uncommonly silly,” and were he a Texas legislator he would’ve voted to repeal it. The jesuitical streak in Antonin Scalia was a furrow. He believed in enemies, loved hating his foes’ apostasies — a quality that I often admire when their positions don’t affect my life.

With his shallow malice, command of precedent, political zealotry, and generational influence, Antonin Scalia is the most significant conservative intellect of the last forty years. Forget William F. Buckley, Ronald Reagan, whichever neoconservative you care to mention. Recall that the Senate was so exhausted with the William Rehnquist confirmation battle in 1986 that Scalia was confirmed 98-0. He said torture did not violate the Eighth Amendments cruel and unusual punishment clause. In his Arizona v. United States dissent, he waxed wistful on states’ abilities to keep out people it didn’t want, mostly slaves. When he remembered he was an “originalist” and a politician too he could be effective explaining why flag burning was a legitimate exercise of one’s free speech and, in Hamdi v. Rumsfeld, refused to allow suspects held indefinitely under the Chief Magistrate’s authority without Congress first suspending habeas corpus or trying the suspect in civilian court. This excerpt I find particularly stirring, so obvious in its soundness that it adduced his claims to constitutional literalism:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis…Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

In search and seizure cases he could side with those who protested, for example, thermal imaging (one of the first cases I was conscious of as a Court follower). Long before Bill Clinton set eyes on Monica Lewinsky he foresaw the damage wrought by an independent counsel; one of my favorite essays by Renata Adler, written at the height of the impeachment nonsense, rests on this dissent.

I suspect Scalia would have vomited at the idea of Beltway pundits conscripting public sympathy anyway. If I’d met him I would’ve pointed out that he wasn’t such a great writer. Legal writing is often so lifeless that interpolating slang and leaden sarcasm qualify as intimations of immortality. In the last ten years his terrible jokes and uninhibited vitriol substituted for jurisprudence. So deeply do his mourners revere the Constitution that the Senate majority leader announced it wouldn’t let Barack Obama nominate Scalia’s successor, with the full complicity of a political class and electorate that already knew no nominee would get confirmed in an election year. No sentimentality then for an eminence who used his considerable intellectual resources to be cold-eyed about what redress the powerless could get from their government.

Killing clean power, brief by brief

While we and the world watched New Hampshire as if we knew what the results portended for, well, nothing, the Supreme Court halted the Clean Power Plan — the one announced with much fanfare last fall. The consequences of this unprecedented move (the case hasn’t even been heard by the circuit court!) are enormous. Scott Lemieux:

In the meantime, the supreme court’s stay Tuesday means that the regulations will not go into effect at least until the lower court issues its ruling in the fall, and most likely means that they will not go into effect before the upcoming presidential election (assuming the supreme court decides to keep the stay in effect while deciding whether to take the case itself).

Because of the ruling, the court might be able to kill the clean power plan without even ruling on it. If the Republicans win the White House, the regulations would never go into effect, because the incoming president would reverse Obama’s executive order. Admittedly, a new Republican administration could rescind the regulations anyway, but it is more difficult to stop a program that is in effect than to stop one from being implemented in the first place.

As Lemieux reminds us, even if the Dems keep the White House and SCOTUS rules in the plan’s favor, the delay will have been costly. Remind me how no difference exists between the Democratic and Republican candidates.

The ‘dime store novel’ style of Ted Cruz, clerk


The New York Times ran one of those amusing pieces sourced by former Supreme Court colleagues of Ted Cruz who remember him as a man as enthusiastic about the death penalty as other men are about sex:

Mr. Cruz, the most ardent death penalty advocate of Chief Justice William H. Rehnquist’s clerks in the 1996 term, became known at the court for his signature writing style. Nearly two decades later, his colleagues recall how Mr. Cruz, who frequently spoke of how his mentor’s father had been killed by a carjacker, often dwelled on the lurid details of murders that other clerks tended to summarize before quickly moving to the legal merits of the case.

“That, I think, was a special interest of his,” said Renée Lerner, then a clerk for Justice Anthony M. Kennedy, who said she was impressed with how deeply Mr. Cruz delved into the facts and history of a murder case. “It was unusual for a Supreme Court clerk to do that.”

Other clerks, however, had a less admiring view of his interest. In interviews with nearly two dozen of Mr. Cruz’s former colleagues on the court, many of the clerks working in the chambers of liberal justices, but also several from conservative chambers, depicted Mr. Cruz as “obsessed” with capital punishment. Some thought his recounting of the crimes — “dime store novel” was how one described his style — seemed more appropriate for a prosecutor persuading a jury than for a law clerk addressing the country’s nine foremost judges.

Melissa Hart, who clerked for one of the liberal justices, John Paul Stevens, said Mr. Cruz’s memos on death penalty appeals basically boiled down to “frivolous, meritless, deny,” and added that his writing approach “made a lot of people really angry.”

“Amusing” because it’s impossible to ascertain truthfulness. I’m sure researchers for J. Michael Luttig will call Cruz as cute as a kitty asleep on a bathmat.