FISA, Terrorists, and Presidential Power

The problem with the current surveillance dispute is that the issue ultimately is not what rights are given to terrorists or how the nation should protect itself from them. The issue is what right the President has to ignore an ill-conceived law rather than persuade Congress to amend or repeal it.

Unless the very general language of the authorization to pursue the war on terror can be viewed as overriding the very detailed (foolishly overly detailed) FISA provisions, we have a clear case of the President acting contrary to the expressed will of Congress. Applying Justice Jackson's Steel Seizure analysis, such a move by the President must fail unless the President has authority to act and Congress clearly has none. Such cases exist, see Padelford and Klein (which address a Congressional attempt to interfere with the pardon power) and Meyers (Congressional interference with the power to remove executive officials). This case appears not to fit those precedents.

The President's broad powers with relation to foreign affairs and as commander in chief do not give him power independent of Congress to deal with domestic affairs. This case is a virtual carbon copy of Steel Seizure.

What is doubly troubling about this scenario is that the administration views opposition to its position as disloyal. Many voters have turned to the Republican Party because the Democratic Party has rejected democracy -- preferring instead to impose its wisdom on the masses by whatever means are available (presently the courts). (In another era and another hemisphere, the current Democratic Party position was referred to as Democratic Centralism.)

If the Republican Party takes the position that the President can ignore the law, it has lowered itself to the Democrats' position. An all-powerful executive is just as much a rejection of our Constitution as an all-powerful judiciary. Will the American electorate no longer have any major party that honors our Constitutional democracy?

Also Honoring Justice O'Connor

Orin Kerr at the Volokh Conspiracy posted public thanks to Justice O'Connor and invited others to do the same. Regrettably, this brought out a number of impolite and intemperate remarks. He, correctly, deleted the thread and turned off the comments.

Have we really sunk so far in our public discourse that one cannot politely acknowledge the contributions of a public servant regardless how much one disagreed with her?

Justice O'Connor has served for twenty-four years. She has been an intelligent and dedicated jurist. She has worked, especially in the past year, at great personal sacrifice, and she deserves great honor for all she has done. Scholars and other observers have had twenty-four years to analyze and critique her work, and there will be ample opportunity for more of that work in the future. For today, let's set aside our occasional differences and celebrate a fine career completed by a fine woman who has made significant contributions to our nation. May God bless her with peace in the final years she spends with her husband and with a long and blessed life.

Is It Appropriate For Republicans To Oppose A Republican President's Nominees Based On Their Judicial Philosophy?

It is an interesting question to ask whether Republicans have a fair complaint if the President nominates someone known to have a contrary judicial philosophy to what the President and his party have advocated. Certainly, on the surface it appears inconsistent to complain about Democrats blocking judges based on philosophy not qualifications and then to block a Republican nominee based on philosophy not qualifications.

(Of course, the question could be posed with the parties changed – would Democrats have a legitimate complaint if a Democratic president nominated a known conservative? Push this toward the logical ends – what if Bill Clinton had passed over Ruth Bader Ginsberg to nominate Edith Jones; what if George W. Bush had nominated Larry Tribe for Chief Justice?)

The argument that elections matter might justify the members of the President’s party (whichever party) in opposing a nominee that clearly violates the terms of their party’s commitments to the electorate, even if philosophical opposition from the other party is illegitimate. The President is the leader of his party, and the members of that party have a role to play in keeping the President faithful to the party and its promises.

That having been said, the issue is purely hypothetical in the case of Harriet Miers.

The philosophy question should not arise until the qualifications issue is settled, and for Miers it is settled – against her. Engaging in the on-going debate about her philosophy assumes that her philosophy matters. But if she is manifestly unqualified (and I have argued earlier that she is), her philosophy is irrelevant. The prerogative of a Senator from the President’s party to vote against a nominee on philosophical grounds presupposes that the nominee is qualified; no Senator from any party should vote to confirm an unqualified Justice.

Does Miers's Experience as White House Counsel Qualify Her for the Supreme Court?

No.

I have serious doubts that White House Counsel is suitable experience for the Supreme Court. The role of White House Counsel is to be the President's lawyer not the government's lawyer. It therefore fails to put one in the position of having to contemplate the societal implications of her representation.

Regardless, the argument is a ruse in this case. Miers has been in that job for less than a year. Prior to that she was White House Secretary -- responsible for the paper flow from the Oval Office and ensuring that everything with that paper was in order.

All the examples to which people point as important issues that have been addressed by the White House Counsel arose while when Al Gonzales was White House Counsel. This includes the discussions of detention policies for enemy combatants as well as controversial federal appeallate court nominations. (Even the ones just confirmed this year were originally cleared with Gonzales as White House Counsel, not Miers.)

If Harriet Miers as the White House Secretary was the President's prime advisor on judicial nominations and detainee policy (as is now claimed), then he was passing up his own White House Counsel and the Justice Department's Office of Legal Counsel to obtain legal advice from someone not serving in a lawyer's capacity in the administration. That is an amazing admission of dysfunctional operations if true.

Miers for Tax Court, SEC, Federal Circuit?

I must admit that the drumbeat from the White House, its defenders, and a fair number of lawyers that Harriet Miers is a good lawyer and therefore qualified to sit on the Supreme Court is getting under my skin. It reminds me of the classic law school saw that any professor can teach any class if necessary. (That, by the way, is true, although we tend to make exceptions for a few specialized courses.) But is sitting on the Supreme Court no different than teaching Torts to first year law students?

What would have happened if the President had nominated Miers to sit on the Tax Court, the Securities and Exchange Commission, or the United States Court of Appeals for the Federal Circuit (which has jurisdiction over patent cases and a few other specialized topics)? Would the same people claiming she is qualified for the Supreme Court have said she was qualified for these positions? I suggest they would not.

So, what is their message? Constitutional Law is not complicated, and it can be mastered on the fly by any capable lawyer.

For anyone who has spent a career studying Constitutional Law, the notion is offensive and naive. A tax novice on the Tax Court would wreak havoc on Tax Law. Assurances that she would vote like another well-respected tax court judge would not fix the problem. A Constitutional Law novice on the Supreme Court is even more dangerous. Constitutional Law is a complex blend of text, history, precedent, and policy. One who deals seriously with the issues recognizes how difficult it is to anticipate the impact of decisions and assess their potential for unintended consequences.

The impact of a Supreme Court justice is broader than that of a judge on the Federal Circuit, and the potential for damage to the nation from an unqualified justice is greater than with an unqualified SEC commissioner. We deserve not to have a justice undergoing on the job training in Constitutional Law.

New Argument for Miers: Evangelicals are Textualists??

Now the argument for Harriet Miers is turning religious. It goes like this: She is an Evangelical, and Evangelicals interpret the Bible strictly; therefore, she will interpret the Constitution strictly.

How quickly the Evangelicals forget their own hypocrisy. Many of the leading voices in the Terri Schiavo fiasco were Evangelicals. And what was their legal position? Allowing Michael Schiavo to withdraw Terry's feeding tube was an unconstitutional denial of her due process rights. What due process rights would those be? Certainly, we are not speaking of procedural due process; the Schiavo case was in court for years and had countless hearings. No one (and no viewpoint) was denied an opportunity to be heard. There was never a failure to give notice. The decision-makers were neutral and detached, not having prejudged any portion of the case.

So, where was the due process violation? The Evangelicals found it in the substance of the existing Florida law that allowed Michael to proceed to withdraw the feeding tube. In other words, they declared that there is a substantive due process right to life that overcomes any state law allowing a husband to withdraw life support under those circumstances. And what is the major issue on which they now say Harriet Miers is a reliable conservative because of her religion? That she will never find a substantive due process right of privacy in the Constitution because her religion mandates a strict reading of texts. Their beliefs did not mandate a strict reading of the text when Evangelicals wanted a different result.

For personal, moral reasons, I disagreed with Michael Schiavo’s decision to withdraw the feeding tubes. Nonetheless, I defend without hesitation the right of Florida to make laws that allow Michael to make that decision. If I disagree with those laws, I can elect representatives who will pass different laws. I cannot turn to the courts to overturn laws based on a unenumerated rights that I would like to impose on society. There is no legitimacy to substantive due process – not in Griswold, Roe, or Lawrence, and not in the Evangelicals’ Schiavo argument.

The fact that Harriet Miers may be an Evangelical tells me nothing about her judicial philosophy or how she will vote, and it does nothing to convince me that she is qualified to sit on the Supreme Court.

Supreme Court Considerations Revisited: State Judges and "Walks of Life"

Having no shortage of confidence (an occupational hazard -- try standing in front of a room full of eager law students without having confidence), I think my posts are brilliant. It is irksome to find some of them getting lost at the bottom of others' threads, so I am going back and picking up a few of my favorites from the pre-Miers era. (I started to edit this one to give it a bit more relevance, but frankly, I like the whole discussion. I did edit a bit for added clarity.)

Alito would be great, but he is certainly a tougher confirmation and doesn’t do much for the “all walks of life” criterion. (We’re going to balance the Court’s irrational overpopulation of Harvard grads by adding a Yalie?)

Corrigan still worries me a bit because Republican appointments of state judges have not turned out well on the Supreme Court — Brennan, O’Connor, and Souter are the most recent examples (not counting Souter’s two months at the 1st Circuit as substantive). That is not just a bit of superstition. State judges are elected, they interpret a constitution that is easily amended, and one of their explicit roles is to make and alter the common law. This leads them (1) to see themselves as representing the public, (2) to be willing to more loosely interpret laws and constitutions because if they have misunderstood the public sentiment the mistake is easily fixed, and (3) to be more active about making law — which is fine for the common law (judge made, judge unmade) but is disasterous in federal constitutional law.

An additional line of discussion that we continue to see — disputes over the “walks of life” argument — deserves additional comment.

Historically, the Supreme Court has had a balance — not the recently-minted hogwash about conservative presidents appointing liberal judges to maintain vote patterns, rather an expectation that the Supreme Court would have a geographic and cultural balance. Thus, for years, we had the idea (not always followed but at least acknowledged as an important factor) of the Catholic seat, the Jewish seat, the Southern seat, etc. Of course, the Democratic party has taken this notion of a diversity balance to such an extreme that we now have identity politics that threaten the emergence of tribalism.

Without approaching that extreme, it is still important that the Supreme Court, in some broad and general ways, reflect the tapestry of American life. It is not healthy that half the Court went to one law school and the other half represents the other 180 schools. It is not healthy if most of the Court comes from the same geographic area. That a potential justice is personal friends with other justices is not a qualification per se; the Court is not a country club. Does that mean that the president should consider geographic origin, race, gender, type of education (public/private, eastern elite/elsewhere), socio-economic background, etc.? Yes.

Contrary to the typical drumbeat on these posts, there is no one person who is the singularly best qualified person for the Supreme Court. There is no divine right of nominees. Many people are qualified and capable and (given who won the last election — elections do matter) reliably conservative, probably far more people that will ever get noticed here or by the President.

Yes, I like Williams. I like her intellect, her opinion-writing craft, and her judicial phiosophy. I like that she is female and that she is Southern (large portion of the country and certainly of the Republican base to expect it to have no seat on the Court). I like that she did not go to Harvard, that she stayed with her husband and their children in their home state and attended her home state law school. I like that she is Baptist. (I am not Baptist; far more importantly, none of the current Justices are. It is a perspective worthy of being heard and it is not already there.) I like that she lives in Orangeburg — wherever the heck that is, it obviously is not a major metropolitan area, and that is good.

That having been said, there are lots of folks who are qualified. Corrigan brings a state perspective that, while I worry about it (as noted above), is a worthy consideration. Others bring equally worthy perspectives. The President will have to balance all of those considerations and choose one person. So long as he chooses someone who is qualified, capable, and reliably conservative, the President will have been faithful to his promises, even if his first choice is not mine or yours.

Oh, those halcyon days when we thought the President would act responsibly. Instead we get a nominee who is not qualified and not capable. Under those circumstances, I could care less whether she is relably conservative.