Jane Kelly For SCOTUS?

I've been hearing murmurings that Eighth Circuit Judge Jane Kelly might be the President's SCOTUS nominee. And there are a lot of dimensions along which that makes a lot of sense.

I've never actually met Judge Kelly, but I'm quite familiar with her. She arrived on the Eighth Circuit in 2013 midway through my clerkship with Judge Murphy, finally ending the latter's streak as the only woman ever to serve on that court nearly 20 years after she was first appointed. Kelly's confirmation was unusually easy in this day and age -- a 96-0 vote taken three months after her nomination -- apparently because she is very well liked by Iowa Senator Chuck Grassley. The Republican chairman of the Senate Judiciary Committee is no small ally for a prospective Obama nominee to have. And it would be difficult for Republicans to justify blocking a nominee they quickly and unanimously confirmed to the Eighth Circuit barely three years ago.

Beyond the purely tactical concerns, Judge Kelly is an interesting choice for another reason: Prior to her elevation to the bench, she was a career public defender, working in the Northern District of Iowa from 1994 to 2013. That background is extraordinarily uncommon on the federal bench, and I believe entirely unheard of on the Supreme Court. Her nomination would certainly have particular resonance in the current political moment where overstretches of the police state have been a central issue occupying progressive activist thought.

Now normally, what that background giveth, it also taketh away -- it is very easy to caricature a federal public defender as "soft on crime" (pluck out the most gruesome murderer she ever defended and ask why she wanted to keep him on the streets). But -- and not to get too macabre -- Judge Kelly has a personal story here too that helps insulate her from that particular angle of attack: she was beaten unconscious and left for dead in an unsolved 2004 assault. She is far more intimately familiar with the ravages of violent crime than nearly any other high-level government official in the United States.

Of course, if Judge Kelly were nominated and confirmed, that would restore Judge Murphy as the sole woman on the Eighth Circuit (and -- perhaps even more amazingly -- would also leave her the only active Democratic-appointee on it). But I get the sense she wouldn't mind. Judge Kelly would certainly put a lot of pressure on Senator Grassley and the wing of the GOP Senate that still isn't 100% comfortable with government-via-tantrum. And beyond that, I don't think she'd make a half-bad Justice either.

UPDATE: Speaking of Grassley, he's stepped back from the edge a bit, saying he won't decide whether to hold hearings on President Obama's nominee until the nomination is announced. Admittedly, other quotes from the same interview are less promising. But if this is a slight step towards rapprochement, a Kelly nomination could be just the way for Obama to respond in kind.

(I'm going to just say I'm predicting a Kelly nomination now. It's a bit of a dark horse pick, but I'm undefeated so far in Obama SCOTUS predictions so why not roll the dice a bit?).

Justice Antonin Scalia Dies at 79

Justice Antonin Scalia, the senior-most Associate Justice on the Supreme Court, has died. He was 79. Scalia served on the Court for 30 years, following stints on the D.C. Circuit and time as a professor at the University of Chicago Law School.

Obviously, this comes with significant political and legal ramifications. Not only was Justice Scalia considered the intellectual powerhouse of the Court's right wing, his departure converts a 5-4 conservative majority into an equally divided Court. Even if the Senate refuses to confirm any Obama nominee, this matters -- in the event of an evenly divided vote, lower-court decisions stand 

Still, there will be time enough to delve into the gritty, necessary task of judicial politics later. For now, it's worth reflecting on the mark Justice Scalia has left on the legal landscape. It is considerable. I think there are very few law students who, exhausted from slogging through some of the more stultifying prose that often graces the United States Reports, did not find Justice Scalia's writing to be a breath of fresh air. He was witty, often cuttingly so, and his dissent in PGA Tour v. Martin may be the funniest Supreme Court opinion ever written. Writing aside, Scalia had a flair for taking bold stands that demanded a response if not agreement, and which often set the tone for what would become the consensus conservative position in the years to come.

My friend Kim Smith put it best: "Antonin Scalia was often brilliant and occasionally right." There are worse epitaphs for a Supreme Court justice to have. Rest in peace, and condolences to his friends and family.

Judicial Activism and Nazi Germany

Justice Scalia reportedly credited "judicial activism" of the style he attributes to modern liberals as being a driving force for the Holocaust.

This is an interesting critique less because of its inflammatory nature, or even because of its hypocrisy given the highest profile SCOTUS case of the last term was the notably originalism-less Shelby County decision, and more because of how it clashes with prior contributions to the "your preferred school of judicial interpretation is responsible for the rise of Nazism" school of critique. The most famous of these was the argument by natural law scholars (such as Lon Fuller) against legal positivists (such as H.L.A. Hart). A key point of disagreement between the two was whether an immoral "law" truly could be considered law. Fuller said no, while Hart contended that Fuller's position mistook what the law ought be from what the law is. Fuller rejoined that it was this outlook that allowed Nazism to be sanctioned by Germany's judiciary, as they felt obliged to follow the law as written.

I'm not saying I side with Fuller in this debate. I only observe that historically, the criticism leveled at WWII German jurists was not that they were too willing to adopt contemporary standards of "moral authority", but rather that they were too content to apply the law as it was written and understood by those who drafted it. Justice Scalia's argument is, to my knowledge, a distinct outlier and I'm curious to know what support, if any, there is for his position.

James Madison was a WOLVERINE

Interesting tidbit from Justice Scalia's Windsor dissent: He seems to endorse congressional guerilla warfare against the presidency as the right way for separation of powers questions to be hashed out between the legislature and executive.

Our system is designed for confrontation. That is what "[a]mbition . . . counteract[ing] ambition,"The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing toconfirm Presidential appointees to the elimination offunding. (Nothing says "'enforce the Act" quite like
". . . or you will have money for little else.").

Slip. op. at 14.

I bet I can guess his vote in Noel Canning.

Posner on Scalia's "Textualism"

This is a devastating review of Justice Scalia's rather inconsistent and meandering commitment to "textualism" (whatever that means -- and it appears to mean, "whatever Justice Scalia feels like").

Big BLACK Convicts

Jesus, Scalia, at least try to hide it:

Conditions in California’s overcrowded prisons are so bad that they violate the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court ruled on Monday, ordering the state to reduce its prison population by more than 30,000 inmates.
[...]
[Justice Scalia, dissenting] added that the prisoners receiving inadequate care were not necessarily the ones who would be released early.

“Most of them will not be prisoners with medical conditions or severe mental illness,” Justice Scalia wrote, “and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Not to be left out, Justice Alito wrote his own dissent warning Californians that "The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions." Ladies and gentleman, Rodney King is back -- and he's brought enough friends to fill the I Corps.

Yes, Californians, the Supreme Court has just unleashed an army of huge, muscular, probably dark-skinned convicts, coming to rape you and your family. Probably while you're sleeping (well, they'll wake you up to make you watch).

I don't mean to demean the problem of criminals being released before their sentences are up -- though California's three-strikes rules mean that some of these inmates are serving life sentences to ensure they never steal a set of clubs again. One way to avoid the hellscape of violent criminals running free is for California to release non-violent offenders, like our aforementioned golf-club thief.

But the bigger point is that violating the constitution has consequences. It means criminals go free, for instance. It means local budgets have to pay settlements to persons abused -- money that comes out of police, education, and sanitation budgets. It's a bad thing to violate the constitution. And if California wants to maintain the hyper-carceral state its been building up, well, it either has to pony up the dough for it, or it's going to have to settle for letting folks loose some of the time. Because maintaining a prison system with inhumane conditions isn't the American way.

PS: Anybody remember The Boondocks parody reality TV show "Big Bruthah"? Which White guy can last the longest living in a house filled with big BLACK convicts? God, I miss that comic strip.

Quote of the Confirmation Day

Michael Kinsley:

Now that the sex lives of Supreme Court justices have become grist for commentators, we are finally free to discuss a question formerly only whispered about in the shadows: Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say "normal," as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.
[...]
Speculation is already rampant about why Scalia chose nine children over a more conventional lifestyle. Is he a sex maniac? That suspicion naturally arises. But perhaps once he started, he just never got around to stopping. Or maybe he just likes children. In recent days, Scalia’s friends have rushed to his defense, going out of their way to portray him as a model of sexual restraint. "Every Friday a bunch of us used to go down to this bar to pick up women," one of his college roommates recalls. "We’d always ask Nino if he wanted to join us, but he always said he was too busy studying. Frankly, we thought he was gay."

Inquiring minds want to know.

Project SCOTUS Justice

Paul Campos collects an array of disturbing comments implying that any female judge appointed to the SCOTUS needs to be appropriately thin. Specifically, appearance (oh, excuse me, "health") is being used to attack Sotomayor and Kagan in favor of Wardlaw and Wood.

There are so many factors that go into choosing your SCOTUS nominee, making it virtually impossible to know whether any particular element played a role. But still: Gag. Kagan and Sotomayor are extremely qualified nominees who would make great justices. It's entirely possible Obama might end up choosing someone else. But it should be based on a real reason.

Also, has anyone looked a Nino lately? So thin and svelte!

Scalia Cares About Diversity

We read Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) in civil procedure today. In Edmonson, it was held that race-based peremptory challenges in civil cases violate the equal protection clause. Much of the argument between the majority and the dissent grappled with whether peremptory challenges -- basically, eliminating a potential juror from the pool for no reason whatsoever (parties in civil cases generally get a limited number of peremptories) -- is a "state action" for constitutional purposes. The majority concluded that it was, as the selection of a jury is a state body whose composition is merely being delegated to the parties, while the dissenters argued that it was not, that jury selection was a function of purely private actors who were only using the court as a forum to resolve their dispute.

But Justice Scalia's separate dissent was interesting to me, because he spent much of it waxing poetic about the need and right of litigants to pursue racially diverse juries -- or at least select their jurors race-consciously. After noting his agreement with Justice O'Connor's argument that the majority is wrong "in principle" to assert that peremptory challenges in civil litigation are state actions, he continued to write that:

[today's opinion] is also unfortunate in its consequences.

The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U.S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so - so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true - but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury.
[...]
Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion - what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent. [500 U.S. at 644-45]

I find it interesting that Scalia appears to recognize here that stripping minority actors of their ability to use race conscious procedures is, in fact a problem. More than a problem -- morally objectionable; a bar to basic fairness! The move towards color-blindness, he's arguing, is qualitatively harmful to minority litigants, and that's a concern he wishes the court to be mindful of.

An interesting argument, and one that gave me pause when reading this case. Kind of incongruous with the bulk of Scalia's jurisprudence, though, no?

Stuff That Gets People Killed

Tom Lasseter's report on innocent people detained by the United States in our war on terror (remember this case?) reminds me of my reaction how Scalia characterized the majority's ruling in Boumediene. He said that the court's ruling, giving detainees Habeas rights against their indefinite detentions, "will make the war harder on us. It will almost certainly cause more Americans to be killed."

He might be right. He might not be -- I'm skeptical there is no trade-off by which our continued flouting of human rights doesn't redound back against us in the form of more violence (when Scalia pointed to several released detainees who engaged in acts of violence against American troops, my response was "well sure -- if they didn't hate America before, they sure as hell do now!"). But he might be right. It is entirely possible that, in the wake of this decision, our jobs will become harder, and more Americans will be killed.

You know what else has that effect? Rights. The fact that the police can't just bomb apartment buildings with suspected criminals inside puts officers at risk. Some, inevitably, will be wounded or killed as a result. Yet, we restrict ourselves anyway. Every right afforded to criminal suspects (a significant concern of our bill of rights) could be cast as putting Americans at risk. The "safe" thing to do would be to shell "bad" neighborhoods into submission and then round up the survivors and place them in internment camps. That would keep Americans alive. It would just be hideously immoral, so we don't do it.

The point is that being a moral human being means that there are some things we can't do, even if they're in our immediate security interests, because they're wrong. In the context of war, certain tactics definitionally cause us to lose the war even if they help an individual battle. When Scalia makes this sort of argument, he betrays a basic misunderstanding of what it means to live in a free society -- in a society that cares about morality, in a society that is constrained by the constitution. "Security" simply does not give us free license to do whatever we want. What Scalia wants is for America to have the liberty to become terrorists. Our founders were wise enough to chart a different course.

The War on Dumb Acronyms

Whatever else there is to say about Justice Scalia, I can't not approve of this:

1) Justice Scalia, who wrote the majority opinion [in United States v. Williams], was apparently unamused by Congress's penchant for titling statutes with an eye towards descriptive acronyms (compare the USAPATRIOT Act). He said that Congress "produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act."

It won't stop them, of course, but at least someone is fighting the good fight.

The Legal Implications of Loads of Litigation

The US Supreme Court just handed down Baze v. Rees, a highly fractured 7-2 opinion allowing execution by lethal injection.

My view on capital punishment lies roughly opposite of Feddie's: I don't have any intrinsic, moral objection to the death penalty, but I long since have become convinced that the death penalty system in America is so damaged as to make it virtually beyond repair -- up to and surpassing Justice Stewart's description of it being "wanton and freakish." Consequently, I think as applied it runs afoul of constitutional due process and cruel and unusual punishment protections, and I am not optimistic about the ability of policymakers to find a remedy. On the sub-question of whether lethal injection particularly is impermissible (the subject of this case), I stake no claim: that is a fact-based question about the reliability and pain quotient of the procedure upon which I do not have the relevant information.

But that's not actually what I want to talk about. Rather, it appears (from SCOTUSblog's summary, which I have no reason to doubt -- but I haven't read the opinion itself) that Justice Thomas' concurrence (joined by Scalia) rendered an attack on the plurality claiming that the standard their ruling would lay out would lead to an excess of litigation, potentially grinding the death penalty machinery to a stand-still. My question is why this is a legally relevant consideration?

Now on one level, that answer is easy for a legal pragmatist such as myself -- I don't think any consideration, particularly as to outcomes, is per se irrelevant (though some are far more relevant than others). But for the more...metaphysically minded judges, I admit to some confusion about where trying to insure that death comes quickly to our enemies (to borrow from Morbo) becomes a constitutional principle which can affect and even change our criminal justice protections? To my mind, it seems like -- even from the position that the death penalty is theoretically constitutional -- there is nothing flowing from there that proves that the due process and cruel and unusual punishment hurdles our system has to overcome might be high -- perhaps inordinately high.

Psychologically, this is related to what I termed the philosophy of the limit, the need some people have that there be concrete and solid limitations on the contours of justice, because the alternative means a potentially endless struggle for the ideal. Scalia and Thomas would not, I presume, disagree that the constitutional protections for due process, or against cruel and unusual punishment, act against our ability to implement the death penalty in some way. At the same time, they also believe that "ideally", the death penalty is consistent with these protections. What they can't accept, however, is that practically speaking the hurdles these protections put up may be extremely high -- they may require copious amounts of litigation to resolve, they may demand intense fact-sensitive adjudication and multiple layers of appeal. And that might make the death penalty so hard to implement that it becomes effectively impossible. They can't accept that, so they construct their legal schematics so their limits lie comfortably within that which will allow the machinery of death to proceed smoothly.

Given the constraints of Scalia and Thomas' putative ideology, that is not a legitimate "constitutional" leap. It is a legitimate leap for a pragmatist -- but both Thomas and Scalia loathe pragmatism. So I remain confused. Where does the justification for that sort of reasoning come from?

I Approve This Metaphor

The Wall of Separation blogs on the supposed death of the "Religious Right":

Like a vampire from a schlocky drive-in horror movie, the Religious Right is often staked but never truly finished off. There is always another sequel. Pundits said the Religious Right would die after Falwell shut down the Moral Majority in 1989. Others said the election of President Bill Clinton in 1992 was a mortal blow. Still others opined that the movement was finished when the Christian Coalition began to lose influence about five years ago.

Shades of Scalia, anyone? From his opinion in Lamb's Chapel v. Center Moriches School District, 508 U.S. 384 (1993):

As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District...Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Good rhetoric makes strange bedfellows, I suppose.