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Author: Tuan Samahon

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Thanks and farewell

Many thanks to the bloggers at Co Op for having me as a visitor. I’ve enjoyed my guest stint and have a new appreciation for what work you put into your blogging.

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Caperton and campaigns for the U.S. Supreme Court

Several political scientists have compared the federal judicial appointments process to state elective judicial campaigns. There are media campaigns with a blizzard of op-eds and directed advertisement in particular states, attack ads, lots of spin, and fund raising appeals, all with the ultimate aim of making it more or less likely that a particular individual will occupy judicial office.

In semi-retirement, Justice Sandra Day O’Connor has criticized state elective judiciaries and the effect money and campaigning have on state-level judicial independence. I’m going to venture a guess that far more money is spent supporting/opposing a campaign to get a justice appointed to the U.S. Supreme Court than to any particular state supreme court race. In light of the fact that federal appointments campaigns increasingly resemble state elective campaigns, should Justice O’Connor’s concerns about the influence of money on judicial independence extend to the appointment campaigns waged over the federal judiciary?

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Confirmation Friendly Fire

It is a meme by now that Republicans will reflexively oppose any nominee of President Obama to fill the Stevens vacancy.

Of course, that observation may too narrowly describe a reflexive response equally applicable to Republicans and Democrats, conservatives and liberals. Consider a few of the left’s prediction bloopers.

1. Margaret Drachsler, the National Organization of Women, expressed her “grave concern” about the nomination of John Paul Stevens to the Supreme Court. NOW opposed his confirmation. See Nomination of John Paul Stevens to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 94th Cong. 78 (1975). NOW apparently has since kissed and made up with Justice Stevens given its latest press release, which calls him a “real champion” of women’s rights.

2. Kate Michelman, Executive Director, National Abortion Rights Action League (NARAL), did no better with her statement during the Souter confirmation hearing. “[I]f confirmed, Judge Souter would destroy 17 years of precedent and cast the deciding vote to overrule Roe v. Wade.” See Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 101st Cong. 363 (1991). Ironically, Souter cast a deciding vote in Casey to preserve the core holding of Roe v. Wade.

3. Jeffrey Levi, then Executive Director of the National Gay and Lesbian Task Force, probably didn’t anticipate a Justice Anthony Kennedy would author Lawrence v. Texas, the opinion that overruled Bowers v. Hardwick, when he opposed Kennedy’s confirmation and said he had “a far too narrow definition of the universe of Americans entitled to the rights guaranteed under the Constitution.” See Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Committee on the Judiciary, 100th Cong. 426-27 (1989).

Oops. I guess it’s a good thing the justices (apparently) don’t hold grudges.

Perhaps the prediction problem results from the difference between horizontal and vertical stare decisis. Supreme Court justices don’t have to observe the decree of a hierarchically superior court, just the persuasive pull of a prior Court and the need to drum up five willing voters.

Perhaps it is the problem of jurisprudential drift and the effect elite opinion makers have on justices over time.

Or perhaps it is the fact that law is not merely politics by other means and law does have some constraining power.

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The Stevens Resignation Is Not Contingent Upon the Confirmation of a Successor

The Above the Law blog has posted what purports to be a letter from Associate Justice John Paul Stevens to President Obama announcing the Justice’s resignation.

Interestingly, the resignation is not contingent upon the successor’s confirmation and appointment. “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. 371(b), effective the next day after the Court rises for the summer recess this year.” (emphasis added).

That means the Court will operate at eight justices if no successor is confirmed and appointed in time for October with the “liberal” bloc of the Court down a vote.

Update: Over at the New Yorker news desk, Jeffrey Toobin thinks this non-contingent method of resignation was intended to aid President Obama in timely securing a replacement. In 1968, Chief Justice Earl Warren resigned contingent upon his successor’s confirmation (the same technique used by O’Connor, among others). I assume that Chief Justice Warren also  intended to benefit President LBJ by providing a parachute should the Fortas confirmation fail (as it did). Who is right, Stevens or Warren? I’d be interested in hearing your thoughts. Which helps a President more, contingent resignation or an unconditional resignation?

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The Dormant Commerce Clause, Vegas-Style

Many Las Vegas tourists are surprised when they learn that prostitution is illegal in Clark County, Nevada. Law-biding johns who don’t want to risk jail avoid the illicit Vegas trade. They drive to neighboring Nye County to hire a duly licensed “professional.”

In Nye, the vice is legalized but it is heavily regulated. Nye County Code 9.20.090(A) requires a prospective brothel owner to provide evidence that he/she is “a bona fide resident of [Nevada] and has been so for six (6) months” prior to being licensed. Section 9.20.190 provides that “[a]ll licensees and their managers must be available to the board at all times, and cannot operate the premises from addresses located in other states.”

These requirements prevented Texas resident Bruce Kahn from applying to own a Nevada brothel. In TCR Holdings, LLC v. Nye County, he challenged the application residency requirements as violating the dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. The equal protection claim was a non-starter, but the district court ruled for the plaintiff on dormant Commerce Clause grounds. According to the district court, the dormant Commerce Clause requires that a Texan be able to apply to be a licensed owner of a brothel operating in Nevada on terms equal with a Nevadan.

I believe the district court’s ruling is incorrect, or at the very least may have some serious unintended consequences for plaintiff Kahn.

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The Posthumous Case for Impeaching Abe Fortas

Recall 1968 and the failed confirmation of Abe Fortas to be Chief Justice of the United States. President Lyndon Johnson had announced he was not seeking reelection; Republican presidential candidate Richard Nixon menaced in the wings. Chief Justice Earl Warren announced his resignation—contingent upon the Senate’s confirmation of his successor—and thereby auspiciously created one last vacancy for LBJ to fill. LBJ nominated Associate Justice Abe Fortas as the inside candidate. Homer Thornberry was nominated to fill Fortas’s to-be vacated seat.

Republican Senators (encouraged quietly by candidate Nixon) together with the Dixiecrats blocked the Fortas nomination in hopes that Nixon would fill the seat with a nominee of his choice. As grounds for opposing confirmation, they cited, among other grounds, the Justice’s unusually close relationship to LBJ—an open secret in official Washington.

Under oath, Fortas decided to put the allegations to rest with this testimony: “Let me say in the first place—and make this absolutely clear—that since I have been a Justice, the President of the United States has never, directly or indirectly, approximately or remotely, talked to me about anything before the Court or that might come before the Court. I want to make that absolutely clear.”

Except, that really wasn’t the truth—far from it.

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The Stevens Retirement and the Senate Midterm Loss

Over at PrawfsBlawg, Jonathan Siegel has questioned Senator Arlen Specter’s (D-PA) suggestion that Justice Stevens should wait until next year to resign. Professor Siegel (correctly, I think) has observed that the midterm election loss – where the President’s party loses seats in Congress – will likely reduce the Democratic majority in the Senate. If you doubt this, take a look at the latest Cook Report Senate race ratings. If Stevens hopes to help Obama by strategically timing his resignation, he should announce his retirement now and hope that Democrats can nominate, confirm, and appoint a successor before the midterms. Few phenomena in political science approach the status of iron-clad rules, but the midterm election loss is one you can bank on.

For Republicans, the optimal strategy is to delay or block any replacement’s nomination. I’ll hazard a guess that they face little downside risk of being viewed as obstructionist by probable Republican voters or independents who may vote for Republicans in 2010. Voter turnout will be low in November 2010 and it will be Republican. If you like Obamacare, you’ll stay home and be content. If you don’t, you’ll be heading to the poll to register your protest. Plus, if Stevens is seen as playing a political game by strategically timing  his resignation in aid of Democrats, there’s no reason that Republicans can’t play that game too. For good measure, all will cite approvingly/disapprovingly to the 1968 Fortas filibuster and the attempted 2006 Alito filibuster.

The Senate’s midterm election loss has not always been a foregone conclusion. Pre-17th Amendment, the “voters” who elected U.S. senators were state legislators. They were a committed and unusually well-informed group of voters. Their voter turnout was consistently high whether it was a presidential year election or a midterm election, and perhaps as a result there was no Senate midterm election loss. The odds of the President’s party losing or winning seats in the Senate was, by my count, about 50/50. It’s really only with direct election that we see the Senate midterm election loss appear as a regular phenomenon. By contrast, the House, which has always been directly elected, has always displayed the midterm election loss.

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Go FOIA yourself…you might be surprised

I have a love/hate relationship with FOIA. I need it and can’t live without it. For those who do original primary research, it’s an essential tool. But it is also painfully slow, hit or miss, unpredictable, and frustrating.

It also turns out that FOIA research may make you the subject of FBI scrutiny. The FBI approaches disclosure of information (predictably) like a security agency.

Author and attorney Alexander Charns wrote a very interesting book entitled Cloak and Gavel (1992), which concerned the history of the Supreme Court and its interactions with the FBI. Pursuant to one of his FOIA requests seeking historical records about Hoover abuses of power, the FBI inadvertently released to him an internal FBI memorandum that described him, his research, and the type of information he was provided.  Apparently, such memoranda on FOIA requesters are not uncommon. They are called “high visibility memoranda” and are created by the FBI FOIA section to “anticipate and minimize negative publicity resulting from FOIA releases.” A former student who recently worked with FOIA shared that she too was aware of similar memoranda maintained by the government. Apparently this practice continues.

Laying aside any question about the FBI’s authority to prepare such memoranda (perhaps based on Google research or other Internet-based information), does the FBI appreciate how the maintenance of memoranda about FOIA requesters plays with the public? I won’t hold out great hopes for more information transparency from the Obama administration, but perhaps it could at least get the FBI to lay off on the domestic FOIA surveillance?

Update (3-29-2010): This article just ran today in the Boston Globe’s online edition on the subject of the FBI, the release of documents held in the FBI’s “Special File Room,” and their availability through a volunteer group called governmentattic.org. H/T Michael Ravnitzky

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Greater Philadelphia Area Junior Law Faculty Meet-and-Greet

Villanova Law School invites junior law faculty at greater Philadelphia area law schools to join us for lunch. Junior faculty will share their research interests, network, socialize, and otherwise foster a community of junior faculty who can collaborate across institutions.

The event will take place on Friday, May 7, 2010 at 12:30 pm at the Faculty Center in the new Villanova Law School building (pictured).

The following faculty members have agreed to serve as informal event coordinators. If you plan to attend, please contact your school’s coordinator so we can receive an accurate head count for the lunch.

1. Drexel: Bret Asbury

2. Penn: Shyam Balganesh

3. Rutgers-Camden: Gerardo Vildostegui

4. Temple: Sandra Sperino

5. Villanova: Tuan Samahon

6. Widener: Thad Pope

We hope this lunch will become the first of ongoing meet-and-greets with rotating Philadelphia area venues (including, we hope, a few good restaurants). If you would be interested in having your school host the next event, please contact your school’s coordinator.

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The Porteous Impeachment

Today the House impeached U.S. District Judge G. Thomas Porteous, Jr. (E.D.La.) on four counts of high crimes and misdemeanors. As the roll call votes indicate, there was overwhelming support for impeachment and no votes against it (the votes were 412-0, 410-0, 416-0, and 423-0).

Nonetheless, the “hundred-ton gun” of impeachment required over 26 months to load before today’s votes. Way back in December 2007, the Fifth Circuit’s Judicial Council, by majority vote, referred Porteous to the Judicial Conference. It noted its view that Porteous had engaged in conduct that “might constitute one or more grounds for impeachment under article II of the Constitution.” Before that, DOJ had filed a complaint concerning Porteous with the Judicial Council in May 2007.

The House can impeach with alacrity when it chooses to. It proved that much with the recent impeachment of U.S. District Judge Samuel Kent (S.D. Texas).

Any bets on when the Senate will actually get around to trying and convicting Porteous?