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?