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.