Category: Courts
Posted by: A Waco Farmer
I have only one caveat to the praise I heaped upon Senator Lindsey Graham for his eloquent and compelling statement on why to confirm Judge Sotomayor. I found the "role-model" portion of his remarks maudlin and out of touch. Sonia Sotomayor is no more of a realistic role model for young Latinas in Waco, Texas, than George Bush is an exemplar for white kids from rural Wyoming.

While I applaud the personal determination evidenced by Judge Sotomayor's impressive legal career and inspiring life story, we should not kid ourselves about what this historic elevation really means. The Supreme Court is still very much a closed club. Obviously race and gender are no longer exclusionary factors--but graduation from an elite law school (for the most part, either Yale or Harvard) and social connections within the elite national legal fraternity are still VERY MUCH required.

Sandra Day O'Connor is likely the last "regular Jane or Joe" to be elevated onto the Court.

So, you want to open up some doors in re diversity, let's elevate a law school alum from BYU or the University of Florida or UT Austin. Until then, we should hear all those "up from their bootstraps" "only in America" encomiums with a healthy grain of salt.

Yes. The path to the Supreme Court is open to anyone (with talent, the willingness to work hard, and the sense to keep their nose clean). However, for the sake of intellectual honesty, we should note that there is only one path to this ultimate position of high honor and importance--and the only trail heads seem to be located in New Haven and Cambridge.

We live in a nation in which any graduate of Yale or Harvard Law can grow up to be a justice on the Supreme Court of the United States.


Harvard: 6
Yale: 2
Northwestern: 1*

*John Paul Stephens--confirmed to the Court during the Ford administration, 1975
Category: Courts
Posted by: A Waco Farmer
In re the confirmation of Sonia Sotomayor:

Kudos to Lindsey Graham for his statesmanship. I greatly admire his dedication to the proper constitutional balance regarding an obvious instance of executive preeminence and the subordinate legislative authority to advise and consent.

Presidential elections matter. The Constitution lays all this out quite clearly. The people elect a president, and he nominates justices to the Supreme Court. The Senate has a say--but, barring extraordinary circumstances, this is manifestly a presidential prerogative.

Shame on Senators Charles Schumer and Richard Durbin for their audacious hypocrisy in chastising Republican votes against the current nominee while never even pausing to acknowledge their craven votes against the confirmations of John Roberts and Sam Alito.

Senator Graham, whom I am proud to rank as one of my favorite national Republicans, understood perfectly the long-term stakes.

The egregious partisan antics employed by the Democratic opposition over the past twenty-five years has done great damage to the judiciary. The fruits of their unforgivable political vandalism provide a stark lesson on why we should do the right thing. While ranking member Jeff Sessions and former chair Orrin Hatch are also two personal favorites--and I respect their decisions to vote against confirmation--I disagree with them. The time had come for grace rather than payback.

Yes. Sonia Sotomayor is a liberal. Yes. She will surely vote with the liberal wing of the Court. But none of that should be a consideration when voting to confirm. Presidential elections should be political. Judicial confirmation proceedings should be statesmanlike and nonpartisan.
Category: Courts
Posted by: A Waco Farmer
Didn't we all see this coming?

On Monday evening, I encouraged GOP opinion makers to "be lucid, rational, and polite." I exhorted us to "use this episode as a teaching moment" and implored our public figures to "avoid unhinged diatribes” and “outlandish horrors."

Wasted breath. Here we are: red-faced and frustrated, forced to walk back from a haphazard and mean-spirited frenzy of wild accusations against a woman who will surely be the first Hispanic female on the Supreme Court of the United States. And for what? Ironically, once installed, we will likely find Justice Sonia Sotomayor fairly forgettable and insignificant.

How did this happen?

We thought we were settling a score. We desperately wanted to give the Democrats a taste of their own medicine.

Did we have a point? Sure. For years, the opposition pursued a single-minded obsession to obstruct (and destroy) Republican judicial appointees. In fact, as a result of their unprecedented disregard for decorum and fair play demonstrated during the 1987 Robert Bork hearings, a new verb entered the political lexicon.

Am I talking about a few isolated wingnuts? Not really. Bork could not have been "borked," and Clarence Thomas could not have been "lynched," without the compliant leadership of Joe Biden. Fast-forward two decades: President Obama served in the Upper Chamber for only one year before he threw his hat in the ring for a bigger prize--but he was in Washington long enough to speak out and vote against two impeccably qualified conservative nominees for the Court.

Do the Democrats just have it in for dorky white guys? Not really. Ask Clarence Thomas how much the opposition cared about his American Dream. As many commentators have pointed out, we had an amazing Latino nominee of our own, whom the Democrats destroyed simply because they could.

But here is the difference: that was then; this is now.

We say: we are only playing by the rules the other team insisted upon. Look what they did to Miguel Estrada.

They say: huh? what? who?

It is pretty simple. The mainstream media often cheered on the vile attacks against Republican nominees. When they weren't piling on, they were giving the Democrats a pass on their worst excesses. Therefore, while you can drag up a few moldy news items, there is virtually no agreed-upon public memory of the despicable behavior conservatives remember so well. For most citizens, Ted Kennedy's notorious speech about "Robert Bork's America" is as distant and irrelevant as a Daniel Webster Fourth of July oration.

In essence, "we got punked." Without any context, the breathless and hastily constructed pursuit of Sotomayor appears completely lacking in civility (which it is). If viewed through the lens of our own trauma, our pathetic blindness might be more sympathetic—but so it goes. No matter, regardless of our continuing maltreatment at the hands our persecutors, remember that our attacks REALLY ARE way out of line. Even worse, our street-fight strategy represents a gutter level of discourse that we have properly railed against for decades now. We should live up to our own standards—not adopt those that we know to be unworthy. We REALLY ARE wrong to engage in this low-level character assassination.

So, in the end, regardless of who started it, our current behavior rightly engenders revulsion. While it may not seem fair in light of the recent past, in the sense that our conduct actually merits censure, we REALLY ARE reaping a just denunciation.

Live and learn.
Category: Courts
Posted by: A Waco Farmer
A Waco Farmer votes "Aye."


[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court....

Presidential elections matter. The Constitution, which we hold so dear, lays all this out quite clearly. The people elect a president, and he nominates justices to the Supreme Court. The Senate has a say--but, barring extraordinary circumstances, this is manifestly a presidential prerogative.

Enough said.

That is not how the Democrats play it!?!

Not the point. Our job is to abide by the obvious intent of the framers. The egregious partisan antics employed by the opposition over the past twenty-five years has done great damage to the judiciary. The fruits of their unforgivable political vandalism provide a stark lesson on why we should do the right thing--not a license to respond in kind.

Elections matter. Choke it down and go on. Losing should hurt.

How disastrous is this pick, really? Relax.
This is not the death knell of the Republic.

Sotomayor does not change the game. Right now right-wing bloggers and talkers are breathlessly painting her as an incompetent radical. This is most likely a wild exaggeration. But, even if it is spot on, so what? Does anyone really think her voting record will be that much different from David Souter's.

Best Case Scenario: she is just another liberal jurist in the mold of Ruth Bader Ginsburg and Stephen Breyer. You win some; you lose some.

Worse Case Scenario: if by chance, she does turn out to be a wild-eyed racist radical, she will be an embarrassment to the Obama administration--and, more importantly, a crucial rallying point for the coming Republican resurgence. The public will not appreciate a fanatical loudmouth throwing her weight around on the Court. Trust me. If she is half as bad as Rush Limbaugh and Mark Levin claim she is, this the best thing that has happened to us politically in 121 days.

Relax. Make your case. Be lucid, rational, and polite. Use this episode as a teaching moment. But avoid unhinged diatribes in which we predict a whole slew of outlandish horrors that are very unlikely to come to pass (at least not on a timetable rapid enough to provide vindication).
Category: Courts
Posted by: an okie gardener
Powerline has this post on a recent Supreme Court decision on the Exclusionary Rule. In the majority decision (Roberts, Alito, Scalia, Thomas, Kennedy) the Court held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. In other words, the effect of the decision is to limit the amount of evidence that can be excluded from trial on technical grounds. The majority of justices decided that the primary goal of a criminal trial is to find the truth. The minority opinion held that the exclusionary rule should receive a "majestic" interpretation, and gave evidence of a fundamental distrust of the police.

What sort of nominees can we expect from Obama? What sort of nominees can we expect Pelosi to prefer?

The Senate Republicans better grow backbone.
Category: Courts
Posted by: A Waco Farmer
From the New York Times:

Published: June 27, 2008

WASHINGTON — The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.

Back in March, following oral arguments, we discussed the case here.

While the fairly extensive coverage of the issue is worth the reread, I am a bit reluctant to redirect your attention to this post as I made an embarrassing mistake in my discussion of federalism, not noting nor taking into account that the District of Columbia is not even a quasi-sovereign entity---but a fully subordinate federally controlled territory. Tocqueville corrected my error.

Worth special note, however, is


My prediction is that the Court will recognize a full-bodied individual right to gun ownership under the 2nd Amendment (This is why we care. The Court will be deciding what the 2nd Amendment means, and the 2nd Amendment means the same thing in and out of D.C.). But I predict that the Court will strike down the D.C. statute as unconstitutional on very narrow grounds. In short, I expect the Court to find that an outright ban on gun ownership is patently unconstitutional. But the Court will leave plenty of room for the regulation and control of gun ownership for health and safety reasons. And this right to regulate may likely be broader for the states than it is for the federal government.

Good work, Tocqueville. Just another example of why all good men (and women) should read our blog regularly.

Category: Courts
Posted by: Tocqueville
Consent of the Governed: R.I.P.


From the dissent:

The question presented by this case is simple and stark. It comes down to this: Even though California’s progressive laws, recently adopted through the democratic process, have pioneered the rights of same-sex partners to enter legal unions with all the substantive benefits of opposite-sex legal unions, do those laws nonetheless violate the California Constitution because at present, in deference to long and universal tradition, by a convincing popular vote, and in accord with express national policy (see fns. 1, 2, ante), they reserve the label “marriage” for opposite-sex legal unions? I must conclude that the answer is no.

. . . .

But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority, the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will.

. . . .

I cannot join this exercise in legal jujitsu, by which the Legislature’s own weight is used against it to create a constitutional right from whole cloth, defeat the People’s will, and invalidate a statute otherwise immune from legislative interference. Though the majority insists otherwise, its pronouncement seriously oversteps the judicial power.

Tocqueville: Notwithstanding two hundred years of history to the contrary, "we the people" are incapable of governing ourselves humanely, according to this judicial dictatorship.
Category: Courts
Posted by: A Waco Farmer
A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
~~Constitution of the United States,
Bill of Rights, 2nd Amendment

New York Times Supreme Court reporter, Linda Greenhouse, wrote on Wednesday:

"A majority of the Supreme Court appeared ready on Tuesday to embrace, for the first time in the country’s history, an interpretation of the Second Amendment that protects the right to own a gun for personal use."

On at least one level, this is an astonishing turn of events.

The High Court has avoided this issue for the last sixty-nine years.

On the other hand, this new cohort of intellectually fierce and robustly intrepid conservatives could hardly rule otherwise.

Granted, the sentence structure of the Second Amendment is curious; notwithstanding, based on the syntax and the historical evidence, it is extremely difficult to argue that the "right to bear arms" applied only as a collective, militia-bound freedom.

As Chief Justice Roberts suggested in the oral arguments, if the language regarding "keeping and bearing arms" was merely subordinate to the "well-regulated militia," mentioning "the people" seems completely superfluous.

This is problematic. The Constitution itself, and the ten amendments that follow, are spare in style, not indiscriminately garrulous.

Are "the people" and a "well-regulated militia" synonymous? Unlikely.

Are "keep" and "bear" merely rhetorical flourishes that mean the same thing? Couplets added to make the document more poetic? Doubtful.

Justice Antonin Scalia pondered the connection between a "well-regulated militia" and "the security of the state." For what purpose was the militia "necessary" to the security of the people? Primarily, to protect liberty from tyranny. For the framers, an armed citizenry equaled an important safeguard against the accumulation of too much power in the hands of tyrants.

Justices Anthony Kennedy and Samuel Alito also raised the notion of self defense within the context of original intent and the frontier culture of the eighteenth century.

For a conservative, the plain meaning and intent of the amendment is clear enough: the Second Amendment offers a fundamental protection to citizens who wish to possess and use firearms, preventing Congress (or any other branch of the government of the United States) from infringing on this right.

Slam dunk.

The Catch? The Irony?

In District of Columbia versus Dick Anthony Heller , the actions of the federal government are not at issue; rather, the Question is "whether the Second Amendment forbids the District from banning private possession of handguns...."

Heller asks the federal government to interpose itself between local authority (Washington, DC), derived legitimately through the will of the local electorate, and an American citizen, Dick Heller, who petitions the Court to protect his individual right under the Constitution to own a gun.

So what? Isn't this the way it is supposed to work?

Yes and No.

It is the way things have worked since the early-to-mid twentieth century.

However, the Bill of Rights, initially, only protected citizens and states from the federal government.

Some Examples:

From the beginning, the federal (or national) government could not establish a national religion, but the individual states could--and did (the last state to disestablish, Massachusetts, sanctioned a state-supported church for more than four decades after the ratification of the First Amendment).

The national government could not abridge free speech or freedom of the press--but the states could; there was no absolute or practical right to advocate abolition in the ante bellum South. That is, the feds were not empowered to protect individual speech rights in any given state.

Constitutional protections and protocol involving trials, evidence, and prosecutions applied to federal courts--but state courts were free to enact their own procedures.

These were days of true federalism, dual sovereignty, or shared authority, between the state and federal governments.

What happened?

And the war came. And the Fourteenth Amendment followed, which guaranteed all citizens "equal protection" under the law. That is, the federal government assumed (or, more accurately, eventually came to assume) a new role as ultimate defender of the very same individual rights enumerated originally as strictly proscriptions against federal abuse. This expansion of the federal mission, extending the Bill of Rights to the states, and empowering the national government as the agency of enforcement, is commonly called incorporation.

What happened then?

The rights revolution ensued: think Brown, Miranda, Gideon, etc.

Conservatives, often reluctantly and usually not without complaint, generally, have acceded to incorporation as the new reality, accepting the good with the bad.

The Good (for example): the success of the Civil Rights Movement, unthinkable without an activist judiciary.

The Bad (for example): Roe v. Wade and Griswold, which went so far as to incorporate an unenumerated right found in a "penumbra, formed by an emanation."

While a few ultra conservatives have called for an amendment to restore the Constitution to its pre-incorporation form, this view usually falls outside of the mainstream of judicial conservatism. For example, none of the conservatives on the current Supreme Court (not even the self-styled "originalists") advocate "restoration," and it is extremely doubtful that a nominee of that particular philosophical persuasion could ever be confirmed by the Senate today.

Having said that, incorporation is a bone in the throat of conservatism--as it seems an integral component of the increasingly boundless activist court and the antithesis of judicial modesty.

Significantly, one of the issues in Heller is incorporation. If the Court finds gun ownership to be a fundamental individual right guaranteed by the Bill of Rights, what then? The justices will have the authority (under the precedent of incorporation) to defy the will of the majority in Washington, DC, expressed through their elected representatives, and institute a new set of rules by judicial fiat.

Is that a conservative decision?

Was the original intent of the framers to allow a federal court to overrule the clearly expressed will of a local entity?

It is an interesting conundrum. Conceivably, the high court might very well vindicate a basic and obvious right important to modern conservatives, while simultaneously wielding its awesome power in a way completely unbecoming to fundamentally conservative jurisprudence.

Then there is also the practical question.

What the Court might do logically is restore the right to keep and bear arms, but demur from "incorporating" the Second Amendment. Conceivably, the Court could affirm the fundamental freedom but respect the local authority to the DC City Council to make law in accord with the democratic process.

However, at that juncture, someone might well ask how far the federal government may go in regulating individual gun ownership in view of the newly rejuvenated right to keep and bear arms.

In re the federal government, the original intent is clear:

"...the right of the people to keep and bear arms, shall not be infringed."

Of course, this question takes us back to our 1939 point of demarcation for this long legal odyssey. When faced with their contemporary exigencies, the Supreme Court felt obligated to bend its interpretation of history and intent in order to allow the federal government the right to regulate manifestly dangerous and problematic weapons.

The practical questions remain.

This is why Solicitor General Paul Clement showed up on Tuesday to argue simultaneously that the right to keep and bear arms exists--but not without some limits.

Where are the limits?

Weapons for hunting and self defense are allowed--but not assault rifles and machine guns?

On the other hand, taken to the extreme, if the purpose of the Second Amendment is to protect liberty from the accumulation of power, should not the citizenry have the right to keep and bear weapons comparable to the entity that poses the greatest threat to liberty? Which, from an eighteenth-century point of view, is clearly the government?

Tough questions. This cohort of conservatives promise to be stalwart, sincere, and profoundly gifted--but, on this case, they find themselves between a rock and a hard place. I will await this decision with guarded optimism and a heightened sense of anticipation.


The Fourteenth Amendment, as written, applies only to the states. The Heller case involves the District of Columbia, which is most definitely not a state. Thus, this case does not involve incorporation, but (if the 14th Amendment is even implicated) would involve the doctrine of reverse incorporation. See Bolling v. Sharpe, etc. But I'm not sure the 14th Amendment is implicated at all in the D.C. case of Heller.

Also, for all legal and constitutional purposes, the Distict of Columbia IS the federal government. And the fact that, like a state, the laws were enacted by duly elected officials here is no different with the federal government, whose laws are also enacted by duly elected officials.


Thank you, Tocqueville, for articulating this vital element of the case (and a perhaps fatal flaw in my reasoning). The fact that this is a DC petition definitely adds another wrinkle to the complexity of this question--and possibly offers a welcomed "out" to the majority. But is it not the expectation that the Court may well offer a much broader ruling, which would apply to the states as well? Does that not explain General Clement's concern?

If this only concerns DC, why do we care?


My prediction is that the Court will recognize a full-bodied individual right to gun ownership under the 2nd Amendment (This is why we care. The Court will be deciding what the 2nd Amendment means, and the 2nd Amendment means the same thing in and out of D.C.). But I predict that the Court will strike down the D.C. statute as unconstitutional on very narrow grounds. In short, I expect the Court to find that an outright ban on gun ownership is patently unconstitutional. But the Court will leave plenty of room for the regulation and control of gun ownership for health and safety reasons. And this right to regulate may likely be broader for the states than it is for the federal government.

10/03: Insanity?

Category: Courts
Posted by: Tocqueville
What a perverse and strange world our courts and our lawyers have created--a world in which the best and the brightest in America clamor to offer free legal services and consolation to international terrorists who would murder our families, steal our freedom, and end our great country by violence. Everything Cully Stimson said was true.

The greatest law firms in America and the law faculty at leading law schools are directly aiding and abetting the enemy with the money of their corporate clients and with tax dollars. Folly and more folly.
Category: Courts
Posted by: A Waco Farmer
From the Washington Post Tuesday:

Sentencing Guidelines for Crack Cocaine Offenses to Be Made Retroactive

"The U.S. Sentencing Commission voted today to make retroactive its new federal sentencing guidelines for crack cocaine offenses, raising hopes for reduced prison terms among thousands of mostly black federal inmates and defying stiff opposition from the Bush administration" (full story here).

Stack that on top of the Supreme Court news from Monday (again via the Post):

Justices Reinforce Leeway on Sentences:
Cocaine Disparity At Heart of 1 Case

"The Supreme Court ruled yesterday that federal judges are not bound by federal guidelines calling for tougher penalties for those who sell crack rather than powder cocaine, giving them broad discretion in drug and other criminal cases" (full story here).

Note: This was a 7-2 ruling in which Justices Scalia and Roberts sided with the petitioner.

This is a huge week for the 100:1 crew (see previous post here for background), who took quite a beating getting to the Supreme Court. Special kudos to Mark Osler, who argued several of those cases at the circuit court level, filed an amicus brief on behalf of the petitioner on this case, and attended the Supreme Court hearing this fall. His post-ruling expert analysis on SCOTUSblog and some celebratory pictures of a severed Goliath head and an exultant Chewbacca on his blog.

Well done. Congratulations. This is a story of perseverance in the pursuit of a righteous cause.

The title of this post is borrowed from James Brewer Stewart's 1976 monograph about the American abolitionists of the nineteenth century, Holy Warriors.

Mark Osler, a professor of law at Baylor Law School, has several causes about which he is passionate. The other night at the Law School, I attended a Baylor Federalist Society-sponsored debate concerning "Faith and the Law," focused on the death penalty.

The Question: Is the Death Penalty compatible with Christianity?

Professor Osler took the negative.

During the course of the program it suddenly occurred to me that the modern proponents of abolishing the death penalty, especially those like Osler who are motivated by their particular Christian worldview, have much in common with the storied abolitionists of old.

More on that comparison in the days to come.