Friday, May 20, 2005

My Published Essays

Bush Must Continue to Name Strict Constructionists to Bench
Los Angeles Daily Journal, Dec. 14, 2004, at 5

I always thought if I got to meet President Bush before the election and he tried to convince me to vote for him, we would be re-enacting that famous scene from the movie “Jerry McGuire.” I would interrupt him mid-sentence and say, “Mr. President, you had me at Scalia.”

President Bush has always pledged to nominate judges in the mold of Justices Antonin Scalia and Clarence Thomas. What that means is that he is going to appoint judges that will interpret the laws and not make law, leaving policy-making to our elected representatives.

For example, a few years ago when the Supreme Court took up two right-to-die cases, Scalia (the “Stephen Hawkins of jurisprudence,” to borrow a phrase of Maureen Dowd) was criticized for commenting before the hearing that the decision should be left to the democratic process and not life-tenured judges.

The Supreme Court did exactly that, and today each state can decide for itself whether they want to authorize assisted suicide for terminally ill patients. Vacco v. Quill, 521 U.S. 793 (1997); Washington v. Glucksberg, 521 U.S. 702 (1997).

The Supreme Court did exactly the opposite in the 2003 term, however, by deciding that homosexuals have a constitutional right to engage in sodomy. Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Our constitutional privacy rights (the word “privacy” appears nowhere in the United States Constitution) apparently include the right to engage in sodomy and to have an abortion (Roe v. Wade, 410 U.S. 113 (1973)), but do not include the right to terminate one’s own life with the assistance of a physician, even if one is terminally ill and in severe pain.

It is exactly this type of ad-hoc policy-making that ought to be left to our elected representatives; that is, to those that our accountable to us. And since federal judges – by virtue of their lifetime appointment – are not accountable to voters, the only thing that can keep them in check is the text of the law itself.

However, since so many of the decisions being handed down by the courts cannot find any support in the text of the law, the courts are resorting to novel ways – including international sentiments – in reaching the decision that they subjectively deem just. The most dangerous method of constitutional adjudication is the concept of a “living Constitution,” which is nothing more than a carte blanche to those who wear black robes to do as they please.

To those who believe in a living constitution, the words are nothing more that guidelines. The words have “penumbras” and judges are charged with – in fact bestowed with the gift of – deciphering what is in the light that emanates from the text of the words.

Whenever I hear of a “living Constitution” or the “penumbra” of the Constitution, I am yet reminded of another movie in which the advocate tried the “penumbra” approach.

In the Australian comedy “The Castle,” the government, in an airport expansion project, was attempting to exercise its “compulsory acquisition” authority to purchase the Kerrigan home. Darryl Kerrigan, the patriarch of the family, believing in the adage that “a man’s home is his castle,” decided to fight the government.

At the initial court hearing, the following exchange takes place between the judge and the solicitor, Dennis Denuto, hired by Kerrigan to represent him:

Denuto: “It’s the Constitution of Australia. This is a blatant violation of the Constitution of the Commonwealth of Australia. And when it comes to violations they don’t come any bigger.”

Judge: “What section of the Constitution has been breached?”

Denuto: “What section? There is no one section. It’s just the vibe of the thing.”

Judge: “I am afraid, Mr. Denuto, you have to be more specific.”

Denuto: “I was just starting general and then getting more specific with it. Just one moment please. [Thumbing through the constitution.] It’s all part it. This is what I’m getting at. That’s my point. It’s the vibe of it.”

Judge: “Do you have a precedent that supports this vibe?”

Denuto: “Yes! Yes I do! Just one moment.”

Denuto cites an irrelevant decision and continues: “Again it’s the vibe of it.”

After a sidebar, Denuto says: “In summing-up, it’s the Constitution…it’s justice, it’s law, it’s the vibe and… no – that’s it, it’s the vibe. I rest my case.”

After a short recess, the court finds in favor of the government.

Exactly what is the difference between the “penumbra” of the constitution and its “vibe?” Is the concept of a “living Constitution” any different that trying to get a feel for its “vibe?” Do we want life-tenured lawyers making policy for us based on what they feel is the “vibe” of the U.S. Constitution? Some of us don’t.

It requires a certain amount of arrogance to think one is powerful enough to deviate from the mandates of the law. This level of arrogance, unfortunately, is not just limited to the federal judiciary.

In a recent case, for example, the state Supreme Court, in a nod to judicial activism, refused, without explanation, to depublish an appellate decision that started its analysis by declaring: “[B]y strict application of the law, appellant should be denied relief,” and ended its analysis by granting relief and stating that they were unwilling to “sully [their] hands by participating in” what they considered to be an “unjust” ruling. County of Los Angeles v. Navarro, 2004 DJDAR 8069 (Cal.App.2nd Dist. June 30, 2004).

In cases in which judges cannot strictly apply the law they have the option of recusing themselves from the case or, better yet, hanging up their robes.

Judges in the mold of Scalia and Thomas are less likely to engage in policy-making under the guise of constitutional interpretation. And, hopefully, Bush will keep his campaign promise by continuing to nominate strict constructionists to the courts.


To Earn Discretion, Judges Must Stop Being Politicians
Los Angeles Daily Journal, Jan. 21, 2004, at 6

In a recent speech at the American Bar Association’s annual meeting, Justice Anthony M. Kennedy called on that organization to lobby Congress for the repeal of mandatory minimums in sentencing and for a return to allowing judges the discretion to be judges.

Kennedy hoped that the “Association will say to the Congress of the United States: ‘Please do not say in cases like these the offender must serve five or 10 years. Please do not use our courts but then say the judge is incapable of judging. Please, Senators and Representatives, repeal federal mandatory minimums.’”

Although, in principle, we ought to let our judges be judges (give them discretion to rule based on the facts of a given case), the timing of Kennedy’s call for more discretion – coming at a time when judges regularly are usurping the democratic process – is audacious, to say the least.

In recent years, the U.S. Supreme Court, under the guise of constitutional interpretation, has entered the “culture wars” and substituted its own judgment for that of our elected representatives. The court-created “one man, one vote” rule seems to have an exception: “five life-tenured judges, all of the vote.”

Just this last term, Kennedy, writing for a five-member majority, overturned a 17-year-old precedent and held that the U.S. Constitution guarantees homosexuals the right to engage in sodomy. Lawrence v. Texas, 123 S.Ct. 2472 (2003).

Only a few months later, taking its cue from the Supreme Court as lower courts often do, the Massachusetts Supreme Judicial Court found in its state constitution a right to same-sex marriage. That decision was by a 4-3 vote. Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003).

In support of its holding, the majority cited to other judicially created “privacy” cases, including the infamous Roe v. Wade, 410 U.S. 113 (1973), which finds in the U.S. Constitution a right to abort a child.

Although the word “privacy” appears nowhere in the U.S. Constitution, a Supreme Court majority of five periodically can find it the same way that Justice Potter Stewart found obscenity – they “know it when they see it.”

The most dangerous trend in recent years, however, has been the Supreme Court’s reliance on foreign sentiments in interpreting the United States Constitution. The majority seems to be more interested in impressing their colleagues across the Atlantic than in “interpreting” our own Constitution.

In a recent speech, Justice Sandra Day O’Connor – who concurred in the recent sodomy decision and consistently has voted to affirm the central holding of Roe – stated, “that the U.S. judiciary should pay more attention to international court decisions to help enrich our nation’s standing abroad.”

Since when is foreign relations the domain of the judiciary?

In most of these recent decisions, the Supreme Court cites to the European Court of Human Rights – which is a bad enough. In a recent case involving the death penalty, however, Justice Stephen G. Breyer supported his position by citing to the Privy Council of Jamaica, Supreme Court of India, and the Supreme Court of Zimbabwe. Knight v. Florida, 120 S.Ct. 459, 2003 (Breyer, J., dissenting).

Breyer, writing only for himself, gave lip service to the fact that it is the “Constitution for the United States of America” that he was interpreting. However, he went on to find the positions of the above foreign jurisdictions “relevant and informative.”

These types of rulings no doubt have resulted in a loss of faith in our judiciary. The more people distrust judges, the more they will attempt to alleviate this problem by advocating a system of mechanical jurisprudence, which will take discretion away from the judges.

As former U.S. Circuit Judge Robert Bork has observed, “Our Courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform.” This force will take the form of mandatory minimums, three-strikes laws, and conclusive presumptions; the ultimate goal being the reduction of judicial discretion.

At this time, the reason why we cannot allow judges to be judges is that the definition of “judge” has changed – or, at a minimum, the line between a “judge” and a “politician” has been blurred. This is, indeed, a self-inflicted wound and, no doubt, a recoverable one.

Once our judges start acting more like judges – by staying true to the text of the law and the intent of the drafters – the people once again will give them the discretion that is essential to their functioning.


Straightening the Bar for Diversity (Senate Must Do The Right Thing: Confirm Brown Based on Jurist’s Court Experience)
Los Angeles Daily Journal, Nov. 14, 2003, at 6

One of the most memorable moments of U.S. Supreme Court Justice Clarence Thomas’ confirmation hearing was when Thomas, lambasting his critics, stated that “from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order, this is what will happen to you: You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.”

The confirmation hearing for Justice Janice Rogers Brown, a state Supreme Court justice nominated by President Bush to the U.S. Court of Appeals for the District of Columbia Circuit, unfortunately was somewhat reminiscent of that of Thomas.

By far the lowest blow came from a Web site called the Black Commentator. This site caricatured Brown, along with other notable black “conservatives”: Thomas, Condolezza Rice and Colin Powell.

Although the senators voiced their objections to this caricature, which portrays Brown in a despicable and racist fashion, they continually referred to it throughout the hearing, even after Brown told the committee how uncomfortable she was when she saw it.

Judiciary Committee Chairman, Sen. Orrin Hatch, R-Utah, and others argued that Democratic critics are targeting Brown because she is a conservative black jurist. Hatched alleged that Democrats are treating Brown just like Miguel Estrada, a conservative Hispanic jurist, whom democrats targeted and subsequently defeated with a filibuster.

Democratic senators responded to Hatch’s criticism by citing all of the black and Hispanic organizations that opposed Estrada and now oppose Brown’s confirmation. By this response, however, Democrats reinforced the point that Thomas was trying to make back in 1991, when he stated that it is racist to oppose blacks who “in any way deign to think for themselves.”

According to Democrats and the black community, unless one “kow-tow[s] to an old order” – supporting affirmative action, quotas, Big Government and welfare – one is not truly a “black” person: One is an “Uncle Thomas” and deserves to be ridiculed, especially by other blacks. (For example, one magazine cover portrayed Thomas as a lawn jockey.)

Brown has espoused her preference for a limited role for government in various speeches. And she had the audacity to refer to 1937, the year in which Franklin Delano Roosevelt’s New Deal agenda started taking effect, as the “triumph of our Socialist revolution.”

These turned out to be fighting words to certain senators, such as Sen. Ted Kennedy, D-Mass., who always have favored and supported our welfare state.

Unfortunately, instead of stating that those are her personal views and that she is fully capable of divorcing them from her official duties as a judge, Brown backed away from her statements, at times implying that all she was trying to do was be provocative.

The most uncomfortable portion of Brown’s hearing came early on, in an exchange between Brown and Sen. Arlen Specter, R-Penn. Specter threw some “softball” questions her way, but Brown missed the opportunity and appeared to be a constitutional novice.

The point that Specter, who fancies himself a constitutional scholar, was trying to get across was that, with regards to personal liberties, the U.S. Constitution simply creates a “floor,” not a “ceiling.” In other words, states are free to provide more liberties than those provided by the U.S. Constitution.

Brown, who has been an appellate judge for more than 10 years, refused to concede this basic constitutional point, which is well settled. In all fairness to Brown, however, Specter’s questioning was unorganized and jumbled.

Brown seemed unprepared at times. Some of this may be attributed to her nervousness. Also, she seemed inadequately coached – but some may think of this as a good thing.

Whether Brown deserves the Senate’s confirmation should have nothing to do with her personal views, religion or skin color and every thing to do with her intellect, temperament, experience, and willingness to apply the law as written. On all of these issues, her state Supreme Court record speaks for itself. The Senate should confirm Brown’s nomination.


Thursday, May 19, 2005

My Letters to Editors

Judging the justices on the Supreme Court
Los Angeles Times, July 12, 2005, at B10

The Times is trying to change our lexicon by replacing the dreaded word "liberal" with the more palatable "moderate." The July 6 story, "It's Not Politics as Usual With Gov.'s Judicial Picks," describes California Supreme Court justices as either "conservative" or "moderate," with Chief Justice Ronald George somewhere in the middle as the swing vote. The opposite of "conservative" is now apparently "moderate."

Or more blatantly, as if dealing with a bunch of morons, professor Bruce Ackerman continually describes Supreme Court Justice David Souter — who is pro-abortion, pro-gay rights, anti-death penalty and anti-property rights — as a "moderate conservative" ("Bush and the Stealth Justice," Commentary, July 7). Are we still to believe the media does not have a liberal (or maybe that should be "moderate") agenda?

Americans Have Right to Amend Constitution
Los Angeles Daily Journal, June 23, 2005, at 7

Stephen Rohde, in his opposition to the proposed constitutional amendment authorizing Congress to outlaw flag desecration, argues, "such content-based discrimination violates long-standing First Amendment principles" ("Outlawing Flag-Burning Amounts to Desecration of Constitution," June 14 Daily Journal). This is akin to saying that the 21st Amendment (ending Prohibition) violates the 18th (starting Prohibition). The whole point of a constitutional amendment is to amend (meaning alter) the Constitution.

He goes on to imply that "those we have elected who have taken an oath to defend and protect the Constitution" should not seek to amend it. This would render the provisions of the Constitution providing for the amendment process futile.

Rohde does make some valid points with regard to the language of the proposed amendment being vague, but his overall criticism in light of First Amendment jurisprudence is irrelevant because, as he points out in the second sentence of his essay, "Congress is considering amending the First Amendment ... to carve out an exception for flag desecration."

If Americans, through the constitutional process, decide to amend the Constitution to declare that they cherish their national symbol more than their right to expression, that is their constitutional prerogative.

When Faith and Law Become Fighting Words
Los Angeles Times, April 28, 2005, at B14

Liberals tend to be OK with stating that minorities – such as filibustered D.C. Circuit nominees Brown and Miguel Estrada – are only allowed to think one way (e.g., favoring affirmative action and the welfare state). If they deviate from that mode of thinking, they will be considered a sellout or an “Uncle Tom.”

According to liberal evangelical Jim Wallis, however, when conservatives “say that people who disagree with their views and their strategy are not people of faith, they cross the line.” Hypocrisy?

Senators’ Comments Don’t Equate to an Attack
Los Angeles Daily Journal, April 21, 2005, at 7

Professor Erwin Chemerinsky, who I generally have a lot of respect for, has sunk to a new low by comparing Tom Delay and John Cornyn’s recent irresponsible statements regarding violence towards the judiciary to those who would like to see an end to the filibuster of appellate judges. (“Attack On Courts Threatens Crucial Checks and Balances,” April 12, Daily Journal) One can denounce the minority of the Senate imposing its will on the majority while at the same time criticizing those who make stupid comments about what actions ought to be taken against the judiciary.

Chemerinky’s legal arguments are also unpersuasive. First, it is unclear why the “nuclear option” is illegitimate if the Senate gets rid of the filibuster, which is a Senate-created rule, following its own rules (regardless of whether Chemerinsky wants to label it “procedural” or “substantive”).

Next he argues that getting rid of the filibuster “of course, would eliminate any check on the ability of the president to fill the federal courts with very conservative judges.” I guess a majority of the Senate doesn’t qualify as a “check.”

Furthermore, in his historical analysis of the filibuster, he conveniently fails to mention when it was first used against appellate judges (it started with our current president).

Finally – and he has made this irrelevant argument before – he asserts that a majority of the Senate today actually represents a minority of the Americans. I don’t think this constitutional scholar needs reminding that the Senate has nothing to do with population; that is, each state gets an equal number of Senators. Had the framers wanted a popular vote on this check on the president’s power to nominate judges, they would have given the House of Representatives the power to “advise and consent.”

I guess I just expect more from Professor Chemerinsky!

Process Due
The American Conservative, March 14, 2005, at 2

I was surprised to read Austin Bramwell’s support for Substantive Due Process (Jan. 31). The Due Process clause of the Fourteenth Amendment has been interpreted to contain certain rights, including the right to marry, have children, abort a child, and more recently, to engage in sodomy.

Bramwell argues that because the right to marry is rooted in the Constitution (the word “marriage” appears nowhere in the document), Congress can define what “marriage” means. This is legitimizing an illegitimate enterprise and ought to be avoided. It is not a good argument anyway.

Though Bramwell is correct to point out that a constitutional amendment defining marriage “has no hope of passing,” the solution is not to give in to the liberal agenda by an expansive reading of the Constitution. Not that a constitutional amendment defining marriage is a good idea. Conservatives want to minimize the powers of the federal government. We don’t want to turn that concept on its head by supporting an amendment that takes power away from the states.

A better solution is to propose a constitutional amendment that mirrors the Defense of Marriage Act. By turning DOMA into a constitutional amendment we will guarantee every state the right to decide for itself what “marriage” means and that no state needs to recognize marriages performed in another state. (This is of course necessary to avoid a court declaring DOMA unconstitutional.) This advances conservatives’ interests by (1) isolating gay marriage to a handful of liberal states, (2) promoting states’ rights, and (3) staying true to the text of the Constitution.

Beware Arlen Specter
The Washington Times, Nov. 14, 2004, at B2

I agree with Thomas Sowell's analysis that Sen. Arlen Specter's voting record is based on the senator's own political agenda and has little to do with whether a judge is in the "mainstream" or not ("An ominous Specter: Part III, Commentary, Friday).
Mr. Specter expects us to believe that the firestorm surrounding Robert Bork's nomination in 1987, with Mr. Bork's negative poll numbers, played no role in his vote against Mr. Bork. (The nation was more evenly divided during the Clarence Thomas hearings, and Mr. Specter needed to redeem himself with his party.)
Also, Mr. Specter claims that he will not impose a litmus test on judicial nominees. However, he said something entirely different in his book, "Passion for Truth." In the chapter dealing with Mr. Bork's nomination to the Supreme Court, Mr. Specter wrote, "In my judgment, the Senate should resist, if not refuse, to confirm Supreme Court nominees who refuse to answer questions on fundamental issues." Are we to believe that this pro-choice senator wants judges to take a stand on "fundamental issues," such as abortion, out of curiosity? Mr. Specter at the helm of the Judiciary Committee is a dangerous proposition for Republicans.


Scalia Does Protect Criminal Defendants
Los Angeles Daily Journal, Oct. 22, 2004, at 7

Professor Rory Little’s otherwise good article (“Supreme Court Decisions on Sentencing Ignore Intentions of Constitution’s Framers, Oct. 4 Daily Journal) on the Blakely decision was somewhat ruined by his ill-advised, and unnecessary, criticism of Justice Antonin Scalia.

Little claims that the “brilliant” Scalia may have devised the Blakely decision so that prosecutors will have a “constitutional obligation to introduce” aggravating evidence to the jury. And he may have devised the plan, not because he wanted to protect the criminal defendant’s constitutional rights as alleged but because “he has never been viewed as sympathetic to criminal defendants.”

Little seems to have forgotten about other decisions sympathetic to criminal defendants penned by Scalia when, in the justice’s view, the text of the Constitution has mandated it. In Kyllo v. United States, 53 U.S. 27 (2001), for example, Scalia wrote a majority opinion finding that the “use of thermal imaging to measure heat emanating from a home was a search” and thus violative of the Fourth and 14th amendments.

In Maryland v. Craig, 497 U.S. 836 (1990), Scalia dissented from the majority’s holding that the Confrontation Clause is not violated when a child witness in a child-abuse case testifies against the defendant at trial “outside defendant’s physical presence, by one-way closed-circuit television.”

A few years earlier, in Coy v. Iowa, 487 U.S. 1012 (1998), that time writing for the majority, Scalia held that the placement of a screen between the defendant and a child sexual-assault victim during testimony against the defendant violated the defendant’s Confrontation Clause rights.

Not exactly a good track record for one hostile to criminal defendants’ rights!

Also, Little’s comment is insulting to the justices who signed on to Scalia’s opinion in Blakely – Stevens, Souter, Thomas, and Ginsburg – by implying that these half-wits did not know what they were doing.


Long Live Miranda
ABA Journal, 86 A.B.A.J. 12 (June, 2000)

Constitutional aspects of Miranda and its progeny aside, given the frameworks of our judicial system, I find the Miranda decision a bit curious. Throughout law school and in practice we consistently come across cases that announce, “Ignorance of law is no defense.” Given the foregoing pronouncement, if ignorance of law cannot be used as a shield, how is it that ignorance of our most fundamental law – namely the U.S. Constitution – has been allowed to be used as a sword for all these years?

Wednesday, May 18, 2005

Writings on Iran

Another Perspective of Persian Gulf Map Flap
Los Angeles Times, Dec. 4, 2004, at B28

Re “Iran’s Anger Over a New Map Magnifies a Perception Gulf,” Dec 2: Your article has a tone suggesting that Iranians’ response to this slight by the National Geographic Society is unreasonable. I wonder how much complaining Americans would partake in if the next National Geographic map of the U.S. identified some of the Western states, such as California, as “formerly Mexico”?

The rationale for the alternate name for the Persian Gulf is “want[ing] people searching for ‘Arabian Gulf’ to be able to find what they’re looking for.” The National Geographic Society needs to stay out of politics.

Monday, May 16, 2005

Misc. Projects

While in Law School I worked as research assistant to Professor Garland. In that capacity, I drafted the 1998 supplement to Exculpatory Evidence, and edited various sections of Criminal Evidence for the Law Enforcement Officer. I also served on the editorial board of the Southwestern Journal of Law and Trade in the Americas.

Sunday, May 15, 2005

Published Opinion

I represented Riverside County in In re McDaniel, an appeal before the Bankruptcy Appellate Panel of the 8th Circuit Court, which resulted in a published opinion.