« "Why many black voters don't blame Hillary for tough-on-crime laws" | Main | Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt »

March 16, 2016

After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening

Still0316_00037_1458141169766_1031097_ver1.0Color me deeply disappointed by this big SCOTUS news.  A president who campaigned on a promise of hope and change and who indisputably was elected to the Oval Office twice thanks to the strong support of minority and younger Americans has now decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit. 

In this prior post, I (apparently foolishly) suggested that Prez Obama might be leaning to appointing a former federal defense lawyer to the Supreme Court given his comments about looking for a nominee with "a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook [but who has] life experience earned outside the classroom and the courtroom."   But Chief Judge Garland, like far too many of the current Justices in my view, is a career "inside-the-Beltway" lawyer having served in the Justice Department during the Clinton Administration and having spent the last two decades serving on the most insulated and isolated of all the US Circuit Courts.  Notably, at a time when American voters on both sides of the aisle have shown an interest in changing "politics as usual" in Washington DC, the President has decided to nominate the most "old-school" SCOTUS candidate I could imagine.

Readers will not be surprised to hear that what really has me irked about this SCOTUS choice is that it provides yet more proof that President Barack Obama is never actually willing to "walk the walk" on criminal justice reform when he has a real opportunity to use his power and platform to engineer real change.  Appointing someone with a public defender background would be a powerful statement that lawyers who defend those accused of crimes have a critically important perspective on the operation and application of the rule of law.  Instead, Prez Obama has nominated a former Criminal Division DOJ lawyer who supervised the Oklahoma City bombing case and the case against the Unabomber.  Tellingly, in his announcement this morning, Prez Obama stressed Chief Judge Garland's "sterling record as a prosecutor" and expressed admiration for his prosecutorial efforts to avoid the possibility that the  Oklahoma City bomber "might go free on a technicality."

On the criminal justice front, here is part of what SCOTUSblog had to say about Judge Garland back in 2010 when he was on a prior short-list concerning a replacement for Justice Stevens:

On a number of issues, particularly those related to criminal law, Judge Garland is the least likely to adopt a liberal position....

The most significant area of the law in which Judge Garland's views obviously differ materially from those of Justice Stevens is criminal law. Judge Garland rarely votes in favor of criminal defendants' appeals of their convictions....

Most striking, in ten criminal cases, Judge Garland has disagreed with his more-liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant. Because disagreement among panel members on the D.C. Circuit is relatively rare, this substantial body of cases is noteworthy.

In the end, and perhaps ironically, I suspect that Prez Obama has made this selection because he does not believe the Senate will move forward with any nominee, and because Chief Judge Garland at age 63 may be uniquely willing now to be the focal point of the already on-going battle royale over the current empty SCOTUS seat.  Also, Prez Obama is sure to have fun making much of the fact in 2010 Senator Orrin Hatch had urged Prez Obama to nominate Judge Garland as "a consensus nominee" who would "be very well supported by all sides."  (Of course, left out of this analysis is that critical Senators Mitch McConnell and Charles Grassley voted against confirmation of Judge Garland back in the 1990s and that Judge Garland's record on gun control seems very likely to be a focal point of criticism from many GOP officials and advocacy groups.)  

Maybe it was true in 2010 that Chief Judge Garland would be "very well supported by all sides," but I seriosuly doubt this will prove true in 2016.   Moreover, in light of both Chief Judge Garland's judicial record and the unique opportunity and open SCOTUS seat presents to diversify perspectives and backgrounds on this Court, I am now thinking I will be rooting for the Senate to refuse to move forward with his nomination. 

Prior related posts on new SCOTUS nominee possibilities:

March 16, 2016 at 11:33 AM | Permalink


"A president who campaigned on a promise of hope and change and who indisputably was elected to the Oval Office twice thanks to the strong support of minority and younger Americans."

He campaigned as someone who would unite the country too, like that speech he gave that we aren't red or blue states, and is governing NOW with a Republican Senate that said they wouldn't even have hearings. So, he appears to be trying to govern here, not put out some doomed pick. Garland might be doomed too, but I don't know, especially if the Trump/Senate thing doesn't do well in the Fall or senators in hard election races are really pressured. Obama already put Sotomayor on the bench and various lower court judges. Kagan provides another novel choice, a non-judge.

And, maybe the effort is doomed, but that's what you do -- you try. ONE side here is trying so far and I appreciate it. I might wish someone else, but realistically, if this is actually about credibly trying to fill a slot not to make some point, Garland is a reasonable shot. I thought it would be Sri. S., which would give you the minority and younger thing, but not the defense part.

Your choice there was a young district judge who would be opposed on that ground. Nice symbol, I guess, but he's there to try to actually fill the slot. The other there from what I can tell (don't know of a third defense leaning option seriously put out there) was someone you yourself felt had a limited resume. She very well might be a great replacement to RBG is she resigns during the Clinton Administration (RBG served about a decade on the court of appeals first).

I think you honestly expected to be disappointed. You didn't even talk about the three top choices really; when you talked about Jane Kelly, you basically said you didn't think she was a good choice (if better than others; faint praise) and rooted for a longshot. Obama, talk of "socialist" etc., again turns out to be mainstream. That helped get a lot done in the last seven years, including health care that helped many in the criminal justice system including drug treatment, tempering of drug laws in various ways, two justices who helped defendants in various ways and efforts to response to police overreaching.

Posted by: Joe | Mar 16, 2016 11:50:30 AM

ETA: We also don't know everything what happened behind the scenes, including the wishes of various people and things that might have made a nomination impractical. Also, if Garland fails, and we have 4-4 Court into mid-2017 at best, what makes you think Hillary Clinton or Trump/Cruz will pick someone better in your eyes?

Clinton very well might just re-submit Garland if the Republicans simply refuses to act here, especially if the Republicans still control the Senate. If you want your ideal pick, you should be pushing for Democrats to control the Senate, I guess.

Posted by: Joe | Mar 16, 2016 11:54:34 AM


Color me exceptionally pleased. Instead of reaching for an ideologue (which I would think we all have had enough of, whether it be a Scalia on the Right or Reinhardt on the Left), the President picked an eminently qualified, experienced jurist with real world experience "looking evil in the face" (as Kent Scheidegger once put it). I for one am quite sick and tired of judges being picked in order to advance an agenda. Chief Judge Garland appears to be a moderate who based on past experience will be collegial, thoughtful and whose decisions will be well-reasoned. I will hope against all hope that the Senate majority will stop playing political games and give the nominee a fair hearing and a fair vote.

Posted by: Cal prosecutor | Mar 16, 2016 1:47:52 PM

I'm disappointed in the pick because of criminal justice areas (he is definitely pro-prosecutor and takes a limited view of the Fourth Amendment). That being said, President Obama said he would pick the most qualified candidate and there is no doubting his qualifications. He is probably the most experienced, best qualified candidate there is.

I'm concerned because of areas I agreed heavily with Justice Scalia (where he would probably be closer to Justice Kennedy), but it's a terrible idea to pick a candidate based on a single issue.

Posted by: Erik M | Mar 16, 2016 2:25:19 PM

The prediction markets had the odds of a judge being confirmed at around 20% - 30% over the past couple of weeks. After Garland was nominated, the odds went close to 60%. Now a few hours later the odds have settled back in the high 30s.

Posted by: Jason R | Mar 16, 2016 2:30:51 PM

Joe (et al.), I view most former public defense attorneys (like Judge Ketanji Brown Jackson) and most prominent politicians (like Brian Sandoval) to be very mainstream. Moreover, I think there is something especially appealing and important about having on the Supreme Court persons whose entire professional life has NOT been connected to representing big and powerful entities (whether those are big corporate entities or big government). Without taking anything away from Chief Judge Garland, whom I presume is very bright and would be a fine Justice, what disappoints me greatly is getting "more of the same."

I understand why Prez Obama may have concluded, for a variety of political and practical reasons, that a person who would be "collegial, thoughtful and whose decisions will be well-reasoned" is the best person to pick right now. But I find so very depressing that it his instinct and message that a lifetime DC insider judge, who looks and sounds pretty much like just about every judge appointed to SCOTUS over the last 40 years (save one or two exceptions), is the very best person for this job.

In the end, my disappointment in this pick is based what I perceive as a lack of vision --- and I would ultimately say courage and wisdom --- in Prez Obama to try to really bring change to one of the most historically conservative and hidebound American institutions.

Posted by: Doug B. | Mar 16, 2016 3:04:42 PM


So vote for Trump. Don't laugh, I'm serious. Why does it surprise anyone that Obama swung the bat in order to advance the runners rather than swinging for the fences? That has bee his MO for his entire career! Hillary is more of the same. If you want a person with vision, vote Trump--he's the gambler. Of course, he may gamble in a way that many liberals will find fundamentally displeasing but Trump is going to gamble.

For me, the irony of Obama is that he really is proof that when push comes to shove a person's personality is more indicative of what they will do than their cultural upbringing. The irony is, or course, that the liberals who voted for him believe exactly the opposite. But to admit that to themselves would require them to admit in their own fundamental racist outlook on life, and that creates too much cognitive dissonance.

Posted by: Daniel | Mar 16, 2016 3:25:21 PM


Where do you stand now on your prediction that if Obama nominated Sri S., he would nominate Judge Brown Jackson to fill the resulting slot on the D.C. Cir.? Well, we have a slot (potentially) open now, just a different slot.

Given the uncertain future of the Garland nomination, my opinion is that having one nominee out there to "twist in the wind" is enough.

I feel that Garland is a good choice and someone fully in keeping with Obama's cautious, balanced approach. Having heard Garland's remarks this morning, I feel that he's a gentle, unassuming guy -- certainly not a bargain from the criminal defense perspective (I am a former AUSA and a former AFPD, in that order) -- who should have a good chance at confirmation. But my prediction is that the Senate won't act on this until the period between the election and the induction of the new Congress (if there is time then, to get the job done). Reason: the Tea Party folks will be more strongly incensed if nomination hearings are held. I hope I'm wrong, but it does not seem to me that an unacted-upon nomination is the type of thing that will drive the ordinary voter to vote against a Republican Senator up for re-election.

Posted by: Late Inning Relief | Mar 16, 2016 4:25:42 PM

"For me, the irony of Obama is that he really is proof that when push comes to shove a person's personality is more indicative of what they will do than their cultural upbringing. The irony is, or course, that the liberals who voted for him believe exactly the opposite."

His cultural upbringing affected his judgments in various ways so don't see this as true. And, liberals don't "believe exactly the opposite." They think culture is an important part of one's personality and judgement. I don't think conservatives really think otherwise & are very concerned about cultural teachings just for that reason. Liberals do think -- along with other stuff -- certain criteria should be a "plus" ala affirmative action. Not use of that alone.

Many voted for him as a reasonable evenhanded sort who would make a pick just like this. The stereotype version of him might not match this just like when he does something politically motivated or something & we are supposed to be shocked. But, liberals as a whole were not naive, thinking him some sort of saint.

Posted by: Joe | Mar 16, 2016 4:55:12 PM

Interesting comments, all, and I will keep stirring this pot:

1. I agree that Trump is a gambler and a gamble, and one I might even be open to taking if he proves shrewd enough to start appealing to me and others by actively extolling libertarian-leaning reform ideas in the criminal justice/drug reform space. But, absent Trump saying that he would only nominate women for open SCOTUS seats, I am inclined to guess Hillary would be a better "diversity" picker for future SCOTUS openings.

2. I think Prez Obama's personality (and success) is a product of his cultural upbringing in Hawaii and through he years at Harvard Law School, where it seems he learned how to garner considerable power and respect by "playing nice with The Man" while still being "down" just enough to avoid being labeled an Uncle Tom. (I always viewed his pre-2008 association with Rev Wright to be part of his effort to avoid an Uncle Tom label, and he was quick to cut off that association when needing to return to "playing nice with The Man.")

Late Inning:
3. I think Judge Brown Jackson would still be a great pick to fill Garland's seat if it comes open, but I am not expecting to see that happen when Prez Obama still hold the power of appointment (though I suppose a lame duck Senate might confirm Garland if Hillary is elected and his nomination is still pending, and then Obama could name his replacement and hope for more lame-duck action). But I am hopeful Obama and/or Garland would withdraw the nomination if Hillary is elected.

4. I share your view that the Garland pick has real "slow play" benefits (to keep with the gambling metaphor). It suggests Prez Obama and fellow Ds are really modest and mainstream while the GOP Senate and its functional party leaders in Trump and Cruz are the real radical/dangerous irresponsible kooks. If Obama can use the Garland pick to help make that narrative stick, then there is a real chance Hillary is picking at least 3 and maybe 5 Justices with the help of a D-controlled Senate in the coming years.

Posted by: Doug B. | Mar 16, 2016 6:29:18 PM

Merrick Garland is not going to be confirmed. He will not even get a hearing. Period. He will twist in the wind. When I watched the news conference today I felt like telling him, hold your tears for now until you really have something to cry about. The Republicans are in complete disarray and they are trying to shore up their base by opposing Obama at every step. Merrick is not going to be confirmed and he will not get a hearing. As for Trump or Hillary doing better, Trump might nominate one of the crazies at his rallies and the tough on crime, weary of polls, Hillary Clinton will not do much better. A former public defender, a person with some feet on the ground experience from the defense side is sorely needed on the Supreme Court but everybody is afraid of appearing soft on crime....Pity. Real Pity.

Finally, I dont know why Obama nominated Merrick when he knows it is DOA: it wont score him any points with any part of the electorate. You know after nearly 7 years in office you would think the guy would learn that the Republicans cant stand him and will not give him the time of day, what on earth was he thinking nominating this guy, who is smart and qualified, but DOA on arrival in the Senate and who wont inspire any section of the electorate.

Posted by: Old Lawyer | Mar 16, 2016 6:31:16 PM

I'm part of the electorate and read a certain blogs that lean Democrat. For some people, this nomination "scored points" in that they appreciated him picking a reasonable choice while some noted that the Republicans blocking even this might make them (especially key swing seats) more unreasonable & that on a partisan level would be a good thing.

If he's DOA, that very well might add to why this is a good thing. Why, e.g., put Jane Kelly (already an ad was made against her, according to one source) or someone else as a sacrificial lamb? And, if the Republicans simply don't have hearings, a logical thing would be to remove his nomination. This happened to judicial nominations in the past. This though might be negative for the nominee, seen as a fail. Someone else you might want Hilary Clinton to re-nominate. etc.

Prof. Berman's #4 gets to some of this. On a human level, Garland is happy he was even nominated. We can try to see that even while being cynical or realistic sorts, can't we? I saw a video posted on Twitter where he introduced himself before all of this & he choked up a bit talking about his dad too.

I'd be glad for a public defender but no, in this time especially with a Republican Senate, a mid-40 year old district judge or someone who was just a defense attorney basically until she became an appellate judge a couple years ago is not going to be confirmed to SCOTUS. Either one very well, especially if Doug Berman's pick gets a few years appeals service, can be a good option for Hillary Clinton in a few years. It isn't just "soft on crime." A white Harvard grad ex-prosecutor merely a district judge or who only was a prosecutor would be an unlikely choice for a President. The norm these days are appellate judges; Kagan was an outlier.

Posted by: Joe | Mar 16, 2016 9:30:39 PM

@Joe, @Doug

When a psychologist uses the term personality they--by definition--mean that part of a person's individuality that is not influenced by culture. This is one of the main disagreements between psychologists and sociologists. Concepts such as "the looking glass self" that insist culture plays a role in personality formation or the process of individuation are sociological in nature. Psychologists, especially cognitive psychologists, look to neurophysiology and genetics to explain personality. This means that when psychologists want to change personality they look to chemistry and drugs, which is the main reason that Ecstasy was widely prescribed by relationship counselors prior to it being banned.

I realize that I am communicating with non-specialists in this forum, but the point I was making is that Obama's selection of Garland is not consistent with his cultural upbringing, at least as he relates it in his own biography. It is consistent with his personality as a psychologist would understand that term.

Posted by: Daniel | Mar 16, 2016 10:34:05 PM

"Obama's selection of Garland is not consistent with his cultural upbringing, at least as he relates it in his own biography"

I speak as someone who listened to his first book and read his second. And, your technical discussion of your method is duly noted. But, not really seeing much of a substantive reply to Doug Berman's analysis, e.g., on the merits. One I will just leave be. Simply put, I don't think it doesn't match.

Posted by: Joe | Mar 16, 2016 11:23:46 PM

"I speak as someone who listened to his first book and read his second." Self-inflicted cruel and unusual punishment.

It is funny how Doug laments that criminals won't get an advocate on SCOTUS. It's painfully clear that Doug wants a Super-legislature making sure that society's punishment for criminal behaviors don't offend the sensibilities of the self-appointed . And he's willing to trade freedoms that are actually guaranteed to us in order to get this accomplished.

"(I always viewed his pre-2008 association with Rev Wright to be part of his effort to avoid an Uncle Tom label, and he was quick to cut off that association when needing to return to "playing nice with The Man.")" Couldn't let that one go--he exposed his kids to that poison, but once again, Doug, you will smear someone like Ed Whelan, but pooh-pooh an association with someone as disgusting as Reverend White who even stooped so low to refer to Natalie Holloway as a white girl who gave it up on vacation.

Posted by: federalist | Mar 17, 2016 9:25:57 AM

"self-appointed" should be "self-anointed class of the enlightened"

Posted by: federalist | Mar 17, 2016 9:29:40 AM

federalist, what should be painfully clear to anyone not deeply biased against the individual rights and freedoms set out in the Constitution is that it is important to have at least a few members of SCOTUS who are not former state and federal prosecutors. I do not want SCOTUS as a super-legislature, I want the federal judicial branch to be an independent branch of our government that serves as a robust check on the work of the legislative and executive branches --- and one that is not packed ONLY with former big-government DOJ/criminal justice employees.

Here is are snippets from the official bios of the last FIVE appointments to the Supreme Court (http://www.supremecourt.gov/about/biographies.aspx):

Breyer: "Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor"

Roberts: "Special Assistant to the Attorney General"

Alito: "Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey"

Sotomayor: "Assistant District Attorney in the New York County District Attorney's Office"

Kagan: "Solicitor General of the United States"

The fact that you, federalist, and Prez Obama and so many others do not see the very big problem with this modern SCOTUS appointment trend is itself a telling sign how much a life-long commitment to big government has become the defining characteristic of "highly qualified" justices among both the Left and the Right. AND now Obama is eager to add yet another DOJ prosecutor to the Supreme Court, demonstrating to me how deeply committed the "self-anointed class of the enlightened" (of which you are a member, federlist) has decided that "being credentialed" actually means never seriously and deeply questioning the exercise of big government power over individuals in all sorts of spheres.

Because you, federalist, naively think only in terms of recently-constructed Right/Left framing and not in deeper enduring terms about human freedom and the corrosiveness of all forms of growing government powers (especially at the federal level), you consistently misunderstand and misportray both my comments and my commitments.

Speaking of misportrayal, as you should know, I have not sought to smear someone like Ed Whelan; rather I just sought to have him and/or others explain their intellectual criticisms of a remarkably accomplished woman of color. That you keep syating my questioning about the basis of an unexplained and suspect criticism is a smear strikes me as yet another example of you tellingly "protesting too much."

Posted by: Doug B. | Mar 17, 2016 10:49:53 AM

"Reverend White" is an amusing (assuming) typo.

Posted by: Joe | Mar 17, 2016 10:53:21 AM

Kagan was given the S.G. job as a warm-up to the justice position that was assumed to come when an opening occurred. She was a novel pick there since she was not the usual sitting judge. So, not really seeing that as a major example of the trend.

I think a person with a strong defense background would be a good move here. It was good to see the two ladies referenced appointed for lower court positions. Sotomayor was selected like O'Connor clearly for diversity purposes and to do that he found a safe pick with long district and appellate experience, first picked by George Bush.

It just is somewhat naive to me to not see a problem with picking a young district court judge or an appellate judge that even Prof. Berman deemed a somewhat weak choice given a limited background (a few more years of appellate service should do the trick) NOW. Obama already thought outside the box some. I welcome President Clinton picking Jane Kelly etc.

Posted by: Joe | Mar 17, 2016 11:01:34 AM

As for Doug--you smeared Whelan--your motive was to shock him into a response, but smear him you did. You admitted to puffing up the rhetoric in an earlier post. The rhetoric was incendiary. And it is funny--you will use words like "racism/sexism" to describe Whelan's comments, but say absolutely nothing about the association with Revered Wright.

I don't care for the Garland appointment, and I care less for the big government maw that is slowly taking over the polity. But your concern about "government power over individuals" is pretty much limited to being too mean to certain criminals like Wendell Callahan. You say you care about overcriminalization (a separate issue from harshness), but there is ZERO evidence that anyone you have supported for SCOTUS would do anything about it and likely would join judgments that increased government power to criminalize (e.g., overturn Citizens United).

Laughable is the idea that I don't see the problems with SCOTUS appointments--actually, Doug, the problem is much much deeper--it's the legal culture as a whole that is the problem, and very few lawyers understand it. The genuflection to courts in our society is an anathema to our freedoms. To give a small example--where courts can simply excise language like "established by a State" not based on traditional notions of statutory interpretation, but rather based on a "wait and see" approach and then concluding that Congress didn't intend the result (the "established by a State" would have been affirmed had a large majority of the states established the exchanges), then we have an imperial Judiciary (with, of course, facial deference to a legislature). How you can accuse me of not getting it is beyond preposterous--you think I like appointments from the Washington crowd?--what because I tweak you for leaning lib on judicial appointments and point out what you'll accept in terms of results that are contrary to your stated views? And I don't naively think in terms of left/right with respect to judges, other than the left thinks, generally, that courts should invent rights etc. (e.g., Zavydas v. Davis, invented rights if I ever saw them).

Posted by: federalist | Mar 17, 2016 11:15:50 AM

1. I agree that Kagan is something of the relative outlier here, and she is more akin in background to RGB and ALK than other more recent appointees. But the broader point, which I may soon elevate to a new post, is that both left and right have a modern tendency to appoint "statists" who are, generally speaking, much less inclined to be a robust check on government in part because they have spent most of their professional lives working for/with the government. Criminal defense attorneys working on behalf of accused individuals (both publicly funded and privately retained) spend their professional lives fighting against the government. I think this makes them, generally speaking, much less professionally inclined to trust government officials and government efforts to go after individuals.

2. I do not think Judge Kelly was a weak choice, I justed liked Judge Brown Jackson more because of the diversity of her prior professional experience. And Justices Kagan O'Connor and CJs Rhenquist and Warren all serve as modern examples that you can be a successful Justice without any prior service as a federal judge. And Justices Thomas and White and Stewart are modern examples that one can be a successful Justice if appointed while still only in your fifth decade.

federalist: there is so much foolishness in your comments I am not sure were to start, but I will highlight three points for now.

3. I used the words "racism/sexism" to candidly express my concerns and with the hope of provoke Whelan and other folks who made unexplained and suspect criticism of Judge Brown Jackson's intellect to make a real effort to better explain the bases for their criticisms. And I find so telling that you keep seem so more concerned with my use of these words and defendig Whelan (who can surely defend himself) than with exploring the bases for Whelan's and others' critcisms unexplained and suspect criticism of Judge Brown Jackson (who is likely bound by judicial ethics to not try to defend herself).

4. You would think my repeatedly expressed concern about marijuana prohibition and use of big-govt power to run the drug war and my general disaffinity for top-down gun control and on and on and on would be more than enough to help you see my concern about "government power over individuals" goes far beyond violent offenders. But, because you truly do think naively in terms of left/right, you have concocted in your own mind an obviously inaccurate belief that only folks on the right a real champions of freedom.

5. Your foolish comments about an "imperial Judiciary" and reference to the ObamaCare statutory case prove still further your naive modern left/right framing. (Absent that framing, you'd be complaining about Raich and especially Justice Scalia's opinion in that case.) In our modern times, judges have essentially no affirmative power in our system --- especially federal judges ---- absent the exercise of power by the other branches and individuals having a reason and a legal basis to complain about how that power is exercised (without the passage of ObamaCare, the case you lament would never have existed). Because there are no more common-law crimes and now very limited commmon law torts, it is near impossible for judges, especially federal judges, to exercise power over individuals with a law passed by a legislature seeking to be enforced by an executive official. The federal judiciary certainly can invent and expand individual rights via broad interpretation of the US Constitution, but these are by definition rights of individuals against the government exercise of power over that individual. Suggesting genuflection to courts is anathema to individual freedoms against government is so misguided it makes my head hurt.

Posted by: Doug B. | Mar 17, 2016 1:30:47 PM

"Suggesting genuflection to courts is anathema to individual freedoms against government is so misguided it makes my head hurt."

I didn't say "individual freedoms", but rather freedoms--one of which is the right to govern ourselves. Here's an instructive quote from Scalia: "I see little harm in admitting that we made a mistake in taking away from the people the ability to decide for themselves what protections (beyond those required by the Constitution) are reasonably affordable in the criminal investigatory process. And I see much to be gained by reaffirming for the people the wonderful reality that they govern themselves–which means that “[t]he powers not delegated to the United States by the Constitution” that the people adopted, “nor prohibited … to the States” by that Constitution, “are reserved to the States respectively, or to the people,” U.S. Const., Amdt. 10."

With respect to "racism/sexism"--do you really take the position that wondering aloud (and using these loaded terms deliberately) about whether racism/sexism is to blame for an assessment of someone's talent isn't a smear?

With respect to criminals and where your care lies--all you need to do is look at your pooh-poohing of the threat of the judiciary to give the government the power to criminally punish political speech. You can wriggle and wriggle all you want---you're willing to tolerate that, if, by golly, juvenile murderers cannot get life for murder. That's just statism coupled with liberal sensibilities about crime, and stunningly misplaced priorities based on your stated views (rather than, what I suspect, are your true views). You'll trade arguable overpunishment of people who have committed heinous crimes for the ability of the government to chill political speech, a core freedom of every one of us.

As for Obamacare--if you think for one second the ability to amend a statute (which by the way imposed taxes on people) based on how successful it was in the real world isn't a manifestation of the Imperial Judiciary, I don't know what to tell you. Roberts' opinion basically said, oh, Congress didn't intend a train wreck, and that is more important than whether it intended "established by a state". In other words, the Court arrogated unto itself the ability to correct perceived policy mistakes or mistaken predictions about the real-world effect of a particular statutory scheme, whether or not the specific item was intended or not.

Posted by: federalist | Mar 17, 2016 2:43:45 PM

The more you say, federalist, the more I question my previous compliments about your intelligence based on goofy asserts like "freedoms -- one of which is the right to govern ourselves."

The only meaningful "self government" freedom is based in individual (or perhaps family) freedom of personal behavior. If you contend making laws in a democracy is a kind of freedom, is the absence of "direct deomcracy" in the federal system and in many states is a big restriction on our "freedom ... to govern ourselves." And how about when a local ordinance conflicts with a state statute which itself may be based on a federal spending condition (say those in the Adam Walsh Act) --- is there a zero-sum game in this peculiar self-government "freedom"? And was my freedom of self-government impinged when I went to vote in the Ohio primary and was told if I said I was an independent I could not vote in either party's primary or because I was not allowed to vote in both party's primaries? Calling lawmaking in a representative democracy a "freedom" and then assailing the judiciary for checking government power is like calling chalk cheese and then complaining that the blackboard is making the cheese taste bad.

Your dense attempt at leeching any sensible meaning out of the word freedom, federalist, is only made worse by your reference to the 10th Amendment -- which was obviously designed as a restriction on the power of federal legislative and executive branches to be enforced by federal judges to enhance state powers and individual freedoms (like the other Bill of Rights' amendments). And here it is notable that, despite your own tendency to want to give governments unbounded powers to punish who your call criminals, the only modern recent discussion of the 10th amendment was in a case seeking to limit the reach of federal executive power to seek a federal conviction of an obviously local crime.

And that you think a sharp question --- which is still going unanswered --- about the basis for a suspect statement is a "smear" shows, yet again, that you misconstrue or misunderstand the actual meaning of actual words as serves your curious desires.

In addition, though you are eager to convince yourself otherwise, I have never "pooh-poohed the threat of the judiciary to give the government the power to criminally punish political speech." (And here it is notable that the political party you fawn over is embracing a guy seeming eager to undo NY Times v. Sullivan.) Indeed, more to the point, this sentence makes absolutely NO sense in light of your prior comments about the freedom of self government. Wouldn't a commitment to the "freedom" of self-government mean the freedom for the poeple to criminalize whatever speech it thinks harms self-government? Again my head hurts because the only way I can understand what you are tring to say is to just assume you dislike whatever Democrats like and vice/versa That is fine, but it is still more proof all your kooky claims are based in thinking naively in terms of modern left/right splits rather than having a clearhead perspective of broader and deeper enduing concerns.

We can debate the statutory interpretation in the second Obamacare case, but this is hardly evidence of an imperial judiciary because Congress the next day could change whatever the court said it meant if the court got it wrong. Again, you may complain about this interpretation, but a court must do some interpretation when parties contend language is unclear --- and Congress always can decide otherwise if they dislike to Court's resolution. (Of course, I realize there are structural reasons Congress is not often good at quickly fixing its own past statutory problems --- see, e.g., its failure to fix Booker a decade later or to deal with the Paroline problem --- but that just serve as more proof that lawmaking in a modern representative democracy does not really reflect even collective self-government all that well.)

I am done federalist because your partisan bias is so plain --- and you work so hard to deny it in ways that reveal its core --- that I have come to miss talking with Supremecy Claus. SC at least was aware of and did not try to hide his obvious bias against a certain group when he went on the attack.

Posted by: Doug B. | Mar 17, 2016 8:26:06 PM

"And it is notable that, despite your own tendency to want to give the feds and others endless powers to go after who they call criminals, only modern recent discussion of the 10th amendment was in a case seeking to limit the reach of federal executive power to seek a federal conviction of an obviously local crime."

Says who? When have I ever said that? Ever? What, pray tell, was the voting line-up in Lopez? Or the VAWA Commerce Clause case? You must have me mistaken with someone else. Ever hear me criticize those cases?

You obviously mistake me for someone who considers laws that are constitutional to necessarily being a good idea. That I haven't argued that the Adam Walsh Act is unconstitutional doesn't mean I favor it in all its punitive reach. I have in posts in here commented on the Adam Walsh Act--in non-complimentary fashion. But Congress is using the spending power--there isn't much doctrine out there limiting spending power conditions. Is it wrong to think that bad legislation is not necessarily unconstitutional? If con law dumbs down to "it's not fair", well maybe, but Sotomayor is only one vote.

Silly me--I thought a people's right to self-government was a core freedom. That there are limits on self-government through organic documents (adopted by the people) like the Constitution doesn't, it seems to me, necessarily mean that core freedoms aren't being observed. And saying that Rousseauian democracy is what I should like because I quoted Scalia (who noted the Constitution's checks) is ill-advised. (You blew that one.)

That Congress could "overrule" the Court doesn't make the Court any less imperial in that context--surely you realize, Doug, that legislation is hard to repeal when the legislation creates a constituency. Basically, without presentment to the President, SCOTUS amended a statute based on the statute's experience with reality. That's a legislative function (and since no presentment) an executive function.

Doug, with respect to CU, do we have to go through your posts where you first acted all agnostic about what an Obama appointee would likely do to the case?

As for the primary stuff--well gee Doug, does an independent necessarily have a right to vote in a partisan primary?? Ill-advised example.

I see I've gotten under your skin--well, actually, more accurately, your misimpression of what my positions are have gotten under your skin.

As for Ed Whelan--I continue to be amazed that you think that wondering aloud about "sexism/racism" and being troubled by criticism of a minority (simply because she is a minority) isn't smearing someone--well, I just don't know what to say. And I will juxtapose your defense of Obama's association with the reverend with your insinuations about Ed Whelan. The card you played is on the table--you cannot tell us it is not there.

Posted by: federalist | Mar 17, 2016 9:25:20 PM

I do not mistake you in any way, federalist, I have you perfectly pegged: if Scalia/Thomas say it, then for you it is gospel, and you twist basic principles and misuse words to serve your Scalia fandom.

Let's keep it simple, federalist, if you wish to disprove your biases: give me an example of a significant case where you think Scalia/Thomas got it wrong and justices to their left got it right. You have 25+ years of material, so I would expect it would not be hard for you to give me multiple examples. I would find that a more fruitful means for you to show me you are more that just an aggressive Scalia lackey.

Posted by: Doug B. | Mar 18, 2016 8:55:34 AM

Thomas was dead wrong on MMs, and Scalia's dissent in the Capobianco case was, in a word, laughable. I also don't believe Scalia's view that once a result is deemed to be absurd that a court's job is to get as close to the statutory language as it can without being absurd.

I don't believe Thomas is correct on the dormant commerce clause or his views on state taxation of non-residents. And I especially don't like Scalia's recent statement that the Court can "do anything." Like, for example, if the Court declared the DP unconstitutional, I would advocate that states simply ignore the federal courts since the Court would necessarily have had to abuse its authority.

"federalist, I have you perfectly pegged: if Scalia/Thomas say it, then for you it is gospel, and you twist basic principles and misuse words to serve your Scalia fandom."

And how am I "twisting" basic principles? You accused me of being in favor of the federal government criminalizing everything---where have I ever said that? The answer is NEVER. I just don't know that the expansion of the federal criminal law is unconstitutional.

One thing that you can see in my posts--I am remarkably consistent. I don't couch my views in order to win an argument. I believe you do--for example, your original "gee I don't know if there's a threat to CU" and "show me where people are being prosecuted?" pooh-poohed the serious threat that government is going to get to criminalize certain political speech.

Posted by: federalist | Mar 18, 2016 9:51:32 AM

"(And here it is notable that the political party you fawn over is embracing a guy seeming eager to undo NY Times v. Sullivan.)"

To his everlasting shame---that's a disgrace.

Posted by: federalist | Mar 18, 2016 9:53:23 AM

Interesting, federalist, that the only places where you disagree with either Scalia or Thomas is where it seems they disagree with each other. So I should refine my understanding to be that federalist will only question what Scalia or Thomas has to say when they are not speaking together. Again, that is fine, but it demostrates how you have embraced (as did Thomas and Scalia when generally talking together) the modern constructed Left/Right political divide in constitutional jurisprudence.

You are right that I "pooh-poohed" the potential reversal of the striking down of the criminal justice piece of CU and the prospect of people being federally criminally prosecuted for certain political speech --- because this seems like a distopian and highly unrealistic vision of what a replacement of Justice Scalia would lead to. (For the record, I wrote an op-ed in a weekly college paper back in 1988 telling folks on the left to stop foolishly asserting that the election of George HW Bush would ensure the reversal of Roe v. Wade.) For lots and lots of reasons, both new and old Justices are chary about quick reversals of recent precendents, even very controversial ones. Moreover, I am not aware of a single notable federal criminal prosecution for political speech between the 2002 passage of the BCRA and the 2010 CU decision (a period that included 2 major Prez elections and a DOJ that seemed highly politicized by AGs of both parties).

As for twisting basic principles and misuse of words, I am talking about your stunning assertion that a robust independent judicial branch checking/limiting the work of other branches and a healthy respect for the work of courts is somehow "anathema to our freedoms." The entire modern history of the world shows that freedoms of all sorts --- but especially individuals freedoms that are necessarily the most basic and essential to all other freedoms --- depends most on a robust independent judicial branch checking/limiting the work of other branches and a healthy respect for their work.

Now, reading between the lines and actually trying to give sensible content to all your poorly articulated ideas, I surmise that what you really find distasteful are Federal Judges (and especially Justices) being too involved in rigidly policing the work of state and local governments (including their judiciaries) based on suspect ("imperial"?) beliefs that 5 wise old folks in DC know how the world should work best for the whole nation. But, again, if this was what really was at the core of your beliefs and complaints about federal power, you would be much more vocal in your complaints about Raich and perhaps also basic modern doctrines of incorporation and also would have to grapple with real hard questions concerning the legitimacy of Borwn v. Board of Ed and NYT v. Sullivan and a whole lot of other 1960s era cases/statutes/culture that really placed the federal law at the center of most of our law in this nation.

Posted by: Doug B. | Mar 18, 2016 11:55:14 AM

Doug, I noted disagreements off the top of my head---do you really expect me to have instant recall of everything Scalia/Thomas have written over the years?

As for the lack of prosecution--ever hear of speech chill and/or selective prosecution (Michael Moore's Fahrenheit flick got a pass)? And how was the Bush DoJ "highly politicized"--tell that to Senator Stevens who was prosecuted by career prosecutors with no interference. But it is a stunning admission that the Holder DoJ has been politicized--you're going to get booted out of the academy for that one. An Obama appointee's threat to CU is real--amazing that you will go on record saying it is not. But hey, anything to win an argument and you'll support any judge who wants to be nice to juvenile murderers--even if it means ripping the rug out from underneath families who have suffered unimaginable pain even if that judge is cool with government criminalizing speech.

"As for twisting basic principles and misuse of words, I am talking about your stunning assertion that a robust independent judicial branch checking/limiting the work of other branches and a healthy respect for the work of courts is somehow "anathema to our freedoms." The entire modern history of the world shows that freedoms of all sorts --- but especially individuals freedoms that are necessarily the most basic and essential to all other freedoms --- depends most on a robust independent judicial branch checking/limiting the work of other branches and a healthy respect for their work."

I just have to laugh--an independent judiciary is important for the enforcement of rights--but an out-of-control judiciary is not (one reason, of course, is that where courts overstep, then the respect for them is diminished). Judging necessarily involves adherence to law, not foot stomps over alleged high-school lab experiments--and pray tell Doug, how can anyone not have lost respect for Ginsburg after she lauded Judge Bye's nonsense about a high school chem experiment? Additionally, Where the judiciary oversteps its bounds, the freedom of self-government is hindered. Zavydas v. Davis is a telling example. What that appallingly bad decision tells the polity: you cannot keep criminal aliens from walking your streets if their home country won't take them back.

I am shocked by your insinuation that I should not like NYTimes v. Sullivan---once you accept the idea of selective incorporation--something which has been accepted, then federal courts are going to police the First Amendment and what have you. And Brown v. Board--can anyone argue that "separate but equal" is equal from an EPC standpoint?

Is this all you have?

Posted by: federalist | Mar 18, 2016 12:35:29 PM

You are disappointed by the nomination of Garland? He is clearly the best qualified of the various possibilities who have been considered in President Obama's term, and the equal of anybody on the Court today. The disappointment for me is that he wasn't chosen instead of Kagan. It is a shame that this distinguished jurist has now been thrown into the middle of this disgusting imbroglio. If he does not make it to the Court, it will be America's loss.

Gary Hill (layman)

Posted by: Gary Hill | Mar 18, 2016 9:12:34 PM

I do not expect you to have "instant recall of everything Scalia/Thomas have written," but you are extraordinarily good at going after nearly every other justice based on your tendency to serve as an acolyte for their take on law and policy. All of your criticisms and positions are really just paraphrases of what they have said in a variety of settings --- including your foolish complaints about an "out-of-control judiciary." That was, of course, what was being said about the Brown ruling, and in the south respect for the court was greatly diminished after that ruling. But that one is obvious because.... it serves your needs and Scalia/Thomas have not given you a better script for explaining it.

What I "have" is the ability to expose what a weak and shallow thinker you are, federalist, though I suppose I should be impressed by your ability to harp here on some Scalia/Thomas talking-points (including the ipse dixit incorporation "has been accepted" so no need to think harder about that).

Posted by: Doug B. | Mar 19, 2016 9:41:35 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB