Friday, May 29, 2009

Judging a life experience with pigs!

Well, since I take care of four charming Vietnamese pot-bellied pigs at the petting zoo, I like to read about swine. And of course, I also enjoy reading about the law. So when I read something that incorporates pigs AND the law I'm in--dare I say it--hog heaven!

Now have a look at these comments:

"My Latina identity also includes, because of my particularly adventurous taste buds, morcilla, -- pig intestines, patitas de cerdo con garbanzo -- pigs' feet with beans, and la lengua y orejas de cuchifrito, pigs' tongue and ears... You can tell that I have been very well educated. That antiseptic description however, does not really explain the appeal of morcilla - pig's intestine - to an American born child."

Sooey! That's a lot of references to pigs. And I don't mind that it's all about eating them; even though I love my four pot-bellies I admit I also like pepperoni on my pizza.

So who is the person giving this porcine culinary lecture? Why, its Supreme Court nominee Sonya Sotomayor! It's the same speech she gave for which some are now hammering her for racism. (Two of my pot-bellied pigs are pink and two are black, but I love them all equally.)

Thanks to the New York Times--and God, I hate having to say that--we can peruse the Judge's controversial oration in its entirety. I keep hearing news reports on TV where Sotomayor is quoted as saying "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." This is usually followed by the observation that Mr. Limbaugh and Mr. Gingrich are apoplectic about these words, howling that they are racist, but then nobody says anything about the context of the remarks.

Well, since Judge Sotomayor said something about pigs in the speech, I figured I owed it to my four swine to carefully examine her remarks.

Before I try to deconstruct the comment getting all the airplay, let me point out that the Judge said something else that one could, if one desired, argue is far more racist than the "wise Latina woman" remark. Earlier in the speech, she declared:

"Let us not forget that between the appointments of Justice Sandra Day O'Connor in 1981 and Justice Ginsburg in 1992, eleven years passed. Similarly, between Justice Kaye's initial appointment as an Associate Judge to the New York Court of Appeals in 1983, and Justice Ciparick's appointment in 1993, ten years elapsed. Almost nine years later, we are waiting for a third appointment of a woman to both the Supreme Court and the New York Court of Appeals and of a second minority, male or female, preferably Hispanic, to the Supreme Court."

The emphasis is mine. It's one thing to advocate a second minority Justice on the Supreme Court; it's quite another to say that it would be better for that Justice to be Hispanic as opposed to Asian American, Indian American, or Native American. Isn't it a little bit offensive to suggest that minorities who aren't African American or Hispanic have to stand in line behind those two groups?

Now on to the "wise Latina woman" remark, in context:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

"Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

First, a bit of that nitpicking I'm infamous for. Sotomayor flubbed the date. The first Supreme Court case upholding a woman's claim in a gender discrimination case, Reed v. Reed occurred in 1971, not 1972.

No need to dwell on that; let's get to the main issue at hand. First, notice the rather apologetic, qualifying manner the Judge use to phrase the sentence that gets pulled out of that paragraph. She doesn't say "Wise Latina women will always make a sounder judgment than a white male;" she opines that she "would hope" that a wise Latina woman would outdo a white male "more often than not." An English stylist might take exception with her for expressing her thought in a timid fashion.

Second, just two sentences later the Judge admitted what she'd just said wasn't necessarily true. She said it's "myopic" to think a judge can't make the right call if he's not of the demographic group affected, citing Brown v. Board of Education as an instance where nine white guys did the right thing and told America to stop sending black children to inferior schools.

I just can't view Sotomayor's "wise Latina woman" comment as racist when she, in effect, took it back five seconds later.

Another little thing--it's notable that Sotomayor mentioned Benjamin Cardozo, because the first sentence of the excerpt above is very similar to something this famous judge wrote. Note first what Sotomayor said: "Whether born from experience or inherent physiological or cultural differences... our gender and national origins may and will make a difference in our judging." She's been getting a lot of flak about that from those appalled at the idea that a judge's personal background and experiences will factor into their opinion writing.

But her sentiments are nothing new. Here's what Cardozo had to say in 1921:

"Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge... There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations... The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (The Nature of the Judicial Process, pp. 167-168.)

I think Cardozo expressed the matter with a lot more verve than Sotomayor did--then again, I'm another white male--but the point is that it's silly for anybody to become indignant at the idea of judges being affected by their life experiences when almost a century ago one of the greats of the High Court admitted that this happens.

So I guess I'm defending Sotomayor a bit, and by extension President Obama for choosing her. But I'm not very impressed with Sotomayor's Berkeley speech. She rails on and on about what she wants for the demographic groups to which she belongs--women and Hispanics. That's her right, but far more inspiring to me is something the first minority Supreme Court Justice--Thurgood Marshall--said in 1958 as he stood before the Court he'd later serve on. The case was Cooper v. Aaron, a matter arising from the bitter controversy in Little Rock after the city was ordered to integrate its schools. Marshall faced Earl Warren and the other Justices and declared:

"Education is not the teaching of the three R's. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law...

"I am not worried about the Negro children at this stage. I don't believe they're in this case as such. I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future." (Quoted in Irons and Guitton, eds., May It Please the Court, 1993, p. 254.)

Exhibit A why Marshall was a brilliant man. Rather than pleading over and over about what the anger and lawlessness in Arkansas was doing to African-American children--which as a black man himself he might have been expected to do--Marshall cogently reminded the Justices of the negative effects the Little Rock situation was having on people outside his personal demographic group. That just seems more exalting to me than Sotomayor's dry listing of which circuit courts don't have a Hispanic judge.

Let me close this as I began, by talking about pigs, as Sotomayor did in a portion of her speech. She has eaten all sorts of pork dishes, but I don't know if she has ever taken care of live pigs as I have. But even if the judge has not done so, by virtue of her training she would still be far more competent than me to rule on a disputed contract involving the sale of four Vietnamese pot-bellied pigs. My training in swine husbandry does not trump her training in law. And so even though I've had life experiences caring for swine, that doesn't give me a special insight about a contract involving pigs.

Life experiences--whether you are a wise Latina woman or a blogging pig caretaker--can only get you so far.

Wednesday, May 27, 2009

Okay, I know I'm being picky...

... But for goodness sakes, President Obama is a former constitutional law professor; when he's introducing his Supreme Court nominee to America I expect him to be accurate in his explication of the Constitution's words. But he said two things in his first two sentences that a reasonably tough high school civics professor would deduct points for on an exam. Here's the first paragraph of Obama's speech:

"Of the many responsibilities granted to a President by our Constitution, few are more serious or more consequential than selecting a Supreme Court justice. The members of our highest court are granted life tenure, often serving long after the Presidents who appointed them. And they are charged with the vital task of applying principles put to paper more than 20 [sic] centuries ago to some of the most difficult questions of our time."

"Select" means "to make a choice," as in "I selected a Reuben sandwich off the menu" or "The Detroit Lions selected Matthew Stafford from the University of Georgia in the first round of the NFL draft." To select something is to act unilaterally without anybody telling you it's okay.

Of course, the Constitution gives the president no such power; Article II Section 2 gives him the authority to nominate Supreme Court Justices. The Senate has to sign off on it. True, according to the dictionary "nominate" means not only "to propose for appointment" but also "to designate or name." We say, after all, that Obama and John McCain were their party's "nominees" for the presidency last fall when they were the "chosen" men. Thus, one could argue that if the president did have authority to "choose" Supreme Court Justices it wouldn't be inaccurate to also then say that the Chief Executive "nominated" somebody for a post.

But it doesn't work the other way. While the definition of nominate embraces some aspects of choice, clearly choice isn't synonymous with nominate.

Then in his second sentence, President Obama declares that Supreme Court Justices are granted "life tenure." Article III, Section 1 of the Constitution does not put the matter so strongly; it says that "Judges... shall hold their Offices during good Behaviour." To state that there is a difference between "life tenure" and "good behavior" may be quibbling; one introductory text to the Constitution admits that the good behavior provision "In effect... means that judges serve for life rather than at the pleasure of the people or other elected branches," (Vile, A Companion to the United States Constitution and its Amendments,2nd ed., 1997, p. 86). Perhaps there isn't much difference between "life tenure" and "good behavior" in terms of meaning; the distinction might best be construed in terms of who they apply to. "Tenure" is best used to describe college professors, not judges. Obama would have been far better to have stuck to the exact words in the Constitution and said "good behavior."

If you think I'm being too strict on that, again, remember the standard; we're talking here about a President who taught constitutional law at one of the nation's leading law schools. I'm reminded of a passage in Strunk and White's Elements of Style in the chapter where they dissect misused words and expressions:

"Nauseous, Nauseated. The first means 'sickening to contemplate'; the second means 'sick at the stomach.' Do not therefore, say 'I feel nauseous,' unless you are sure you have that effect on others."

For the rest of my life I'll get nauseous and nauseated confused. But I expect an English professor from the University of Chicago to get it right. And I can damn well expect a law professor from the University of Chicago to say good behavior instead of life tenure.

As for Obama's remark in the third sentence that the blog I've linked puts "sic" next too--some other sources don't do that--I really don't know what's going on here. The most likely interpretation is that the President meant two centuries instead of twenty; he's alluding to the formation of the Constitution. Twenty centuries--two thousand years--would take us back to the time of the New Testament. If Obama meant to refer to the long history of law in western culture, why would he have stopped then? He could have added centuries to his tally and gone back to the Ten Commandments or the Code of Hammurabi. Maybe he did mean to do that; perhaps the President meant to say "thirty-five centuries" or "thirty-seven centuries" instead of "two centuries." In other words, maybe "twenty centuries" was an underestimate rather than an overestimate.

Or more likely, he just flubbed the line.

Thursday, May 21, 2009

Is it even possible to have a Constitution that's not "actual"?

This odd note appeared on White House correspondent Jake Tapper's blog at the ABC news website:

"No, that was not an actual copy of the Constitution behind President Obama as he spoke today.
A spokeswoman for the National Archives confirms that just like in the movie National Treasure, the document on display today was a facsimile."

I have over thirty copies of the Constitution in my place, mostly appendices in various constitutional law books. I never really thought of them as "facsimiles" of the Constitution any more than I think of my volume of the complete works of Shakespeare as a facsimile of his original manuscripts. Hamlet and the First Amendment aren't deeds to a house or titles to a car where you need the one and only original copy to be valid, instead they are written words meant to be communicated. So what does it matter if the copy of the Constitution in my desk drawer is part of a mass printing on twenty-first century paper instead of being the original parchment? Any good copy of the Constitution gets the job done.

Even more troubling is the word "actual" in Tapper's first sentence. Here is Webster's definition of actual. The relevant definition in the sense Tapper uses it, I think, is part b of the second one, "existing in fact or reality." Surely the document behind Obama at the speech wasn't a figment of our imaginations; it would be an "actual" Constitution even if it had the Fourth and Fifth Amendments transposed, although in that case it would clearly not be an "accurate" one.

So obviously what Tapper meant was the copy of the Constitution behind President Obama was not an original manuscript signed in 1787 by thirty-nine men in Philadelphia.

But so what?

Wednesday, May 20, 2009

Blackstone debunked in California

One doesn't need to look very hard into the history of Anglo-American voting to know that the policy of letting pretty much everybody vote if they're eighteen is a modern concept. Many are familiar with the systematic efforts here in the South to deny African Americans the franchise less than half a century ago, but what I'm addressing here is something that goes back beyond living memory. Namely, the idea that only people--well, men anyway--who had some cash saved or a piece of property to their name should be allowed to cast ballots.

The classic defense of this rather elitist position comes from William Blackstone's eighteenth century Commentaries on the Laws of England. In Book 1, p. 165, Blackstone opines:

"The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications ; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. "

Blackstone's work was enormously influential in the American colonies and familiar to the statesmen of our country in its early years. (Daniel Boorstin's The Mysterious Science of the Law is essential reading if you have any interest in this.) Not surprisingly, at the Constitutional Convention of 1787, several delegates expressed Blackstonian views on who should be allowed to vote. This exchange occurred on May 31:

"Mr. [Roger] Sherman opposed the election [of the House of Representatives] by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.

"Mr. [Elbridge] Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute."

Other delegates, including James Madison, spoke in favor of popular election of the House, and of course Sherman and Gerry were ultimately outvoted. Still, it's instructive to see that in 1787 respectable men on this side of the Atlantic thought Blackstone was onto something. You have a broad electorate at your peril; let folks with not much property and a lot of bills to pay vote and they will, Blackstone warned, cast their ballot "under some undue influence or other."

Now if you've never once in your life thrown your arms up in the air at election results and said "I can't believe we let stupid people vote!" you're a better person than I am. I'll never forget after Jesse "The Body" Ventura was elected governor of Minnesota, reading this or that analysis of his unexpected victory. Basically, went a popular conclusion, Ventura won because of the support of men 18 to about 25 who normally wouldn't have voted at all but came out in that election because they just thought it would be kind of cool to have a pro wrestler in the governor's mansion. Dammit, we say to ourselves at times like that--or at least I do--maybe Blackstone was right. Who wants a bunch of 22 year old beer guzzling, apartment renting punks, who won't go to a movie unless it has lots of explosions, and whose only tangible asset is an overdrawn checking account, deciding how the government should be run?

And that's why I'm happy when we have election results that serve as a reminder that Blackstone wasn't correct--at least not always. Where his philosophy of enfranchisement is concerned, Blackstone got his butt kicked yesterday in California. How's this for "undue influence":

"[Governor Arnold] Schwarzenegger helped behind the scenes to garner big contributions for the measure's proponents, who raised about $30 million and outspent foes by nearly 10 to 1. Among the big contributors were businesses hoping to avoid tax increases if state finances slumped further: oil companies, tobacco and alcoholic beverage firms, sports teams and Hollywood studios."

And what were the results of outspending the opposition ten to one? Of having big, powerful California companies tell people to vote for the propositions? Of state politicians predicting financial Armageddon if the ballot measure didn't pass?

The voters in California told them all to get lost:

"California voters have officially voted no on five of the six propositions in Tuesday's special elections, according to the results provided by California's Secretary of State's official website. Proposition 1A through 1E were critical in seeking to change the state's budget system, but the five propositions received over 60 percent of voters saying no...

"The only proposition voters approved of was Prop 1F, with about 75.5 percent of voters saying yes. Prop 1F prohibits government officials to receive a pay raise during a deficit."

I love that last bit; don't you?

I'm not going to jump deeply into California's budget issues; not living in that state I haven't thought much about it. I will admit I don't really understand why people live in Los Angeles; I figure if you don't mind smog, congested highways, crime, and lots of gay people, why wouldn't you just move here to Atlanta where you get the same experience with a lower cost of living.

But as a lover of republican principles of government, I certainly feel some pride when in our twenty-first century America, where everybody who takes the time to fill out a form can vote, that the people show an independent spirit and prove Blackstone wrong. Nearly universal suffrage coupled with that ten to one outspending by ballot proponents should have, by Blackstone's logic, given "great, artful, and wealthy men, a larger share in elections than is consistent with general liberty."

That it didn't happen suggests we working class folks are a bit more clever than Blackstone gave us credit for.

Tuesday, May 19, 2009

The disappearing treaties

Read books on constitutional law and occasionally you'll stumble across a concern somebody raises that you don't hear voiced frequently. I had such an experience recently reading Michael I. Meyerson's fine volume Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (2008).

These days you can't stick your toe in the pool of constitutional interpretation without bumping into someone, usually a conservative, upset over the expansive reading given to the Fifth Amendment power of government to take property through eminent domain. Others on the right bemoan Congress using the commerce clause (Article I, Section 8) as basically a justification to let the federal government regulate anything and everything.

The liberal angst over constitutional interpretation, tempered now that George W. Bush is out of office, is the idea that the power granted to the President as Commander-in-Chief (Article II, Section 2) gives him authority to put troops in Vietnam, Afghanistan, or Iraq. (My most persistent critic frequently chides me to write an entry blasting President Bush for his foreign policy, apparently because she can't find enough of that on the Daily Kos.)

But in Meyerson's book, I ran into a thoughtful criticism of something we don't find discussed very often; namely, the virtual evisceration of the treaty power due to their replacement by constitutionally suspect "executive agreements." Myerson's explication of this begins on page 184 with a mention of a recent case, American Insurance Association v. Garamendi, 539 U.S. 396 (2003). The case centered around California's passage in 1999 of the Holocaust Victim Insurance Relief Act, which required insurance companies doing business in the state to disclose information about policies they issued in Europe between 1920 and 1945.

The insurance companies argued that California could not enact such a law, as it was precluded by an agreement between President Clinton and German Chancellor Schroeder. A five to four majority, led by Justice Souter, ruled in favor of the insurance firms; in essence holding that the agreement between American and German chief executives preempted state law.

There's just one tiny problem, Professor Meyerson frets. The agreement between Clinton and Schroeder was not a treaty. And not only are "executive agreements" not mentioned in the Constitution, but The Federalist makes a reasonable claim that only by treaty could the United States make agreements with other lands.

Addressing the specifics, Myerson notes that there are two types of executive agreements. One is a congressional-executive agreement--NAFTA is his example--where the matter becomes effective when both houses of Congress give their approval. The second type is a sole-executive agreement, in which there is no congressional activity at all; the President alone signs it and it's done. It was a sole-executive agreement that Clinton signed with Schroeder; so in effect in Garamendi the majority ruled not only that an international agreement preempts a state law, but that such an agreement preempts state law even if it is only made by the executive branch with no congressional oversight.

I'll admit to being quite startled after reading the following excerpt from Myerson:

"These two types of executive agreements have virtually replaced treaties. In fact since 1960, fewer than 5 percent of all American foreign commitments have been formalized by treaty. The appeal of the agreement process is obvious: it is simpler than obtaining a two-thirds vote in the Senate. Indeed, NAFTA in all likelihood never could have been ratified as a treaty; it received only sixty-one votes in the Senate, significantly less than the sixty-seven which would have constituted the requisite two-thirds super-majority." (p. 185).

I have one minor quibble with Professor Myerson's account, which I bring up only because it's small trap easy to fall into when you're discussing treaties, constitutional amendments, or veto overrides where a two-thirds majority is required. We tend to look at sixty-seven as an absolute number, as though this is the minimum threshold for two-thirds of the Senate since there are a hundred senate seats. But in Article 2, Section 2, the Constitution says that the President has power "to make treaties, provided two thirds of the senators present concur." That's my emphasis, by way of pointing out that two-thirds of senators present is not the same as two-thirds of the Senate. (See The Federalist #75 for Alexander Hamilton's observation on this.)

So if NAFTA had been a treaty, it would not necessarily have needed sixty-seven votes in the Senate to pass. Yes, it would need those sixty-seven yeas if all one hundred senators were present at the tally. Sometimes, however, there is at least a senator or two who can't be there because he is sick, drunk, incarcerated, or too busy running for president. If just two Senators are out of the building, the number required for passage of a treaty drops to sixty-six. That's why Article 1, Section 5 says that in "Each House... a Majority of each shall constitute a Quorum to do business..." So in theory a treaty could be ratified by the votes of only thirty-four Senators; this assumes only fifty-one guys showed up that day and the minimum number of yeas was recorded.

That's a digression not meant to demean Myerson's reasonable point. I mentioned that he looks to The Federalist for his argument that treaties were the one and only type of agreement with other nations that the Constitution and its framers endorsed. And just as I brought up Federalist #75 with regard to the quorum issue, Myerson cites it in support of his argument that the framers specifically meant to keep the President from acting alone, as he does in today's sole executive agreements, and that they meant to keep the House of Representatives out of foreign negotiations entirely, which negates NAFTA and any other congressional-executive agreement.

Here is the man on the ten dollar bill explicating why agreements with other countries could not be left solely to the President:

"However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."

I take it from these words that Hamilton would be horrified at the notion of President Clinton, all by himself, making a deal with the German Chancellor.

But Hamilton wasn't done. In addition to answering the criticisms of those who thought that the President should be able to act unilaterally in making international agreements, Hamilton also disagreed with those who thought the House should be part of any treaty deliberations:

"The remarks... which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project."

So Hamilton wouldn't have been a fan of NAFTA either, with its involvement of the House of Representatives.

If you think Myerson is onto something here--and I do--it's all a bit unsettling. We've seen that it's a lot easier to make a sole executive agreement or a congressional agreement than to ratify a treaty. But there is no power given to the federal government or any of its branches to circumvent the treaty power because treaties are difficult to ratify. In fact, if you stop and think about it, this is a principle that if carried to an extreme would destroy the Constitution and even the liberties of the American people.

After all, it's easier to not worry about whether citizens are getting fair trials, due process, or equal protection than to insure that these guarantees are strictly enforced.

Tuesday, May 12, 2009

The political world never really changes, does it?

"Patronage was most evident in politics, and there its use was instinctive. When Benjamin Franklin was made deputy postmaster general of North America in 1753, he wasted no time in appointing all his friends and relatives to positions under his control. His son became postmaster in Philadelphia. One brother was made postmaster in Boston; when the brother died, Franklin gave the office to his brother's stepson. He made his nephew postmaster in New Haven, appointed the son of a friend postmaster in Charleston, and made another in New York controller. A year or so later he promoted his son to be controller and moved the husband of his wife's niece into the vacated Philadelphia position. When this office again became open, he brought another brother down from Newport to fill it." -- Gordon S. Wood, The Radicalism of the American Revolution, 1991, p. 77.

"Obama’s promise of changing Washington hasn’t extended to banishing the age-old practice of giving plum posts to relatives of your top supporters — as he’s done with the relatives of a half-dozen well-connected Democrats...

"They are:
• Cameron Kerry, the brother of an early Obama backer, Massachusetts Sen. John Kerry, who has been tapped as chief counsel at the Commerce Department
• Mignon Clyburn, daughter of House Majority Whip Jim Clyburn of South Carolina, who received a coveted appointment to the Federal Communications Commission • David Hamilton, nephew of former congressman and Democratic elder statesman Lee Hamilton, who was appointed to an appellate judgeship

• Courtney Gregoire, daughter of Washington Gov. Chris Gregoire, who last week was tapped as director of legislative affairs at Commerce
• Laurie Mikva, daughter of legendary former Chicago judge and Congressman Abner Mikva, who was appointed to the board of the Legal Services Corporation, which provides legal aid to low-income people
• And Ezekiel Emanuel, brother of White House chief of staff Rahm Emanuel, who is a special adviser on health care to OMB Director Peter Orszag." -- Article at .

Let me just comment that cronyism and patronage are not quite synonyms. The dictionary makes a significant distinction, as the phrase "without regard to qualifications" is added to the cronyism definition but not to the one for patronage. So that's the challenge for the six people politico names; they've got to convince reasonable minds that they are patrons and not cronies.

Tuesday, May 5, 2009

Empathetic justice, or Obama misinterprets Star Trek

"In describing his search for a successor, the president said he would seek a nominee with 'a record of excellence and integrity...who understands that justice isn't about some abstract legal theory or footnote in a case book.'

Mr. Obama also stated his preference for someone attuned to the 'daily realities of people's lives' -- a sentiment conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism."

--Wall Street Journal, 2 May 2009.

"You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got... the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

--Remarks by President Obama to Planned Parenthood on June 17, 2007.

I agree one hundred percent with President Obama that it is important to be aware of the daily realities of people's lives. I'm even with him on the whole empathy thing.

But here's where this former law professor falls flat. Remember, law is a creature of our government. And as we all hopefully remember from high school civics, in the United States there are three branches of government. I'm all in favor of having an executive branch with a man like Obama who strives to recognize what it's like to be a young, teenage mom. I will personally support candidates for the legislative branch, Congressmen and Senators, who try to understand what it's like to be African American, gay, disabled, or old.

But when it comes to the third branch, the judiciary, I want someone who understands that if a homeless woman carelessly pushes her shopping cart into a rich man's Mercedes and scratches the paint job, she is negligent and the wealthy man has a potential claim against her. If you can't stomach that, don't become a judge. Be a community activist, a legislator, or a President, as Obama has been in that order. It can't matter to a judge whether one party in a conflict is better off than the other; he needs to rule based on the facts and the law. And if the law is bad, well, let the legislators change it.

I would guess that in his constitutional law classes, President Obama probably taught The Federalist. Here's what Alexander Hamilton had to say in Federalist #78:

"The judiciary... has... no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment..." (Emphasis mine).

Western culture, it has often been noted, seems obsessed with threes. The Father, Son, and Holy Ghost. The monarchy, the aristocracy, and the commoners. The legislative branch, the executive branch, and the judiciary. Curly, Larry, and Moe. Whenever we categorize society or the universe into a triumvirate, we adopt an understanding that each member of the trio has a special function separating it from the others, and that in this manner the unit works as a coherent whole as long as everybody pulls their weight.

Where Obama is wrong to think that the Supreme Court is the place for empathy is perhaps best demonstrated by another famous trio set to make an appearance in a major feature film this week. The executive branch, represented today by President Obama, is like Captain Kirk--he needs to make sure the Enterprise doesn't slam into any stars or start interstellar incidents with the Klingons.

The legislative branch is more like Doctor McCoy. It can be passionate, maybe even sometimes emotional and irrational, but that's because you want someone with an honest bedside manner if you're lying in sickbay laid out with a bad case of Rigelian Fever.

The Judiciary needs to be Mister Spock. No emotions. Whether somebody is African American, gay, disabled, or old should be irrelevant. And it is illogical for counsel to pursue that line of reasoning.

Yes, I know that on our planet judges are humans, not Vulcans, and as the great twentieth century Earth Supreme Court Justice Benjamin Cardozo observed, "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (The Nature of the Judicial Process, 1921, p. 13). But if a judge doesn't at least make that attempt to see things objectively, he's doing a disservice to his position. He's being like Dr. McCoy when he needs to emulate Spock. He needs to suppress his emotions and grow a pair--of pointy ears, that is.

Let me emphasize that while I'm advocating a judiciary that doesn't care if you make twenty grand or twenty million, I'm not saying the bench should be cold as the Andorran home world. There are, after all, plenty of procedural issues to encourage the kind of result President Obama would endorse. I think Professor P.S. Atiyah put it well in An Introduction to the Law of Contract, 5th ed. (1995):

"An art dealer calls on a 'little old lady' and offers to buy her old canvas for a song, well knowing that it is a Constable worth many thousands of pounds. If he is not allowed to retain the fruits of his bargain, what incentive is there for art dealers to search out hidden treasures which may otherwise be lost to the public forever? Whatever the explanation, this is a classic sort of case where there is is no duty of disclosure, but it is also just the sort of case where courts might be expected to strain to discover some sort of operative mistake or implied condition, or actual misrepresentation." (p. 250).

So in my hypothetical example, it's fine with me if the court dismisses the rich man's claim against the homeless woman because he was illegally parked. Or it can rule that she is guilty but owes the Mercedes owner only the oldest pair of shoes in her shopping cart. What a court should not do is take into consideration the wealth of the litigants before anybody has even be sworn in.

That's no way for judges to live long and prosper.

Saturday, May 2, 2009

If the only thing worse than being talked about is not being talked about...

Since Justice Souter announced yesterday his retirement from the Supreme Court, speculation has been rampant on who will fill his seat. It seems everybody is assuming President Obama will tap a woman as Souter's replacement, with Judge Sonia Sotomayor and Solicitor General Elena Kagan being the names most commonly uttered.

You know what seems odd to me? The Secretary of State is a woman, and nobody is talking about the possibility of Obama nominating her.

Is it far fetched that Obama would choose Hillary Clinton? Perhaps. But consider this: he didn't ask her to be his running mate, which suggests he didn't want her too close to him. Obama may have felt, however, that he owed Clinton something, and it was going to be perceived as an insult if he gave her a low level cabinet post, so he gave her a top job Secretary of State.

But if you still assume that Obama doesn't want Clinton too close to him, and that he's got to put her somewhere prominent, why not just put her on the Supreme Court? Her concept of jurisprudence is similar to his; plus if she's on the Court there is probably no chance she might break rank and challenge Obama in the primaries in 2012 if his poll numbers are low. Furthermore, there's a tradition of the Senate confirming High Court nominees quickly if it's one of their own under consideration--or at least there was such a tradition back when it wasn't uncommon for someone to go from the Senate to the Court.

As an added bonus, Clinton in the new position wouldn't be embarrassed by mistranslations when she meets with Russian dignitaries! Sounds like a win-win proposition to me.