What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

Cutting the Cards

The last few days have brought a whirlwind of comments about how former Harvard Law School Dean Elena Kagan’s record on tenured and tenure-track faculty hiring of women and people of color may reflect a lack of commitment to racial and gender equality. As I stated earlier, I have been encouraged by the supportive statements from professors who know Kagan well and whom I know to have a strong commitment to racial and gender equality themselves.

Though I am encouraged, I am not entirely persuaded just yet. No matter how hard I try to convince myself, I keep coming back to this one saying, which has meaning beyond just the ordinary poker game: “Trust everyone, but cut the cards.”

You see, it’s not that I do not trust people like Professor Charles Ogletree or Professor Randall Kennedy. I mean, how could I not trust them? They are two of my very own heroes! Believe me, I trust them, but I have to admit that it’s hard for me to fully trust, without more of a paper record, that Solicitor General Kagan will become the next Thurgood Marshall (or even somewhere in that vicinity) on legal issues that concern racial and gender equality. Let me explain why—why I find it necessary to play it safe and cut the cards.

You Cannot Have Your Cake and Eat It, Too

Although I am still cautious, I have been encouraged somewhat by comments from other progressives who know Solicitor General Kagan personally. Most importantly, I was thrilled to hear Kagan emphasize, rather than shy away, from her connection to the late Justice Thurgood Marshall. It made me hopeful that she would follow in Justice Marshall’s footsteps, bringing his same strong sense of justice for the disadvantaged to the bench.

BUT . . .

Why Elena Kagan's Hiring at Harvard Matters

In a post on the widely-read SCOTUS blog, under the topic of "issues that will be mentioned in the Kagan nomination but won't get traction," Tom Goldstein writes,

Race in Harvard’s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan’s tenure were mostly white. However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

I like Tom Goldstein, and his move here is a familiar one, but it is wrong. To see how silly this move is, it is tantamount to saying that we called Kagan a misogynist because of the paucity of women hires under her deanship at Harvard. Since I was among the "complain[ants]", I'll take a very quick stab at explaining why Kagan's hiring record matters and why our complaint has nothing to do with intentional racial bias.

Further Thoughts on the Court and the Future of the Voting Rights Act

The only question before the Court in NAMUDNO was whether the conservative justices would have the gumption to strike down one of the "crown jewels" of the civil rights movement. For reasons that remain obscure and the subject of much conjecturing, they didn't. End of story.

This pretty much sums up the history of the constitutionality of the Voting Rights Act. From the moment the Court first took up the question, the constitutionality of the Act has hinged on the Court's willingness to strike down the statute.

Nobody understood this better than the Warren Court, and particularly the "wily" Justice Brennan.



The question then, as it is now, can be stated simply: "Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?" The Court's initial response, in the first draft of Chief Justice Warren's opinion in South Carolina v. Katzenbach, is illuminating. Citing Ex parte Virginia, the Chief Justice explained that "Congress has even broader remedial powers than the courts to effectuate the constitutional prohibition against racial discrimination in voting." (italics mine)

Justice Fortas reacted to this argument with concern: "I wonder if this adds enough to the argument to offset the possibility that it may be used in unforeseeable ways to support arguments to narrow court orders." In response, the language changed as follows: "Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting."

The Court wished to grant Congress much leeway to solve this difficult problem, but it worried that doing so would lead a future Congress to take on the Court. Recognition of this dilemma led Justice Brennan to Footnote 10, and what became known as the Morgan power.

Justice Brennan could see a bigger problem in Katzenbach. He worried that basing much of the Court's holding on the findings in the record would lead the Court down a path it would likely regret. Take a look at his notes from his draft:



Focus on the language on the bottom left of the page: “It seems to me one thing to summarize the facts put before the legislature, and another to do what the Chief seems to be up to in this [section]—accepting the Congressional findings because they correspond to our own.”

He continued his questioning on the next page:



To Justice Brennan, Warren's draft focused on the wrong issue: “Do we judge statutes by no. of witnesses[,] length of hearings[,] unanimity of vote? The Chief is judging the legislative product as if it were a judicial one.”

Justice Brennan returned to this criticism once more:



His language is nothing short of prescient: “In several places, like this one, the Chief comes close to writing this as if it were an advisory opinion. I think this might be avoided. Are we reviewing the sections, any more than we are the adequacy of the hearings?”

These questions underscore the political savvy of Justice Brennan. He could see Katzenbach v. Morgan just down the road, a case devoid of the rich evidentiary record found in the South Carolina case. In this light, compare Brennan's opinion in Morgan with Warren's opinion in South Carolina. Their different approaches to the record was stark, as Justice Harlan pointed out in dissent. Brennan wished to avoid the debate all together.

The implications for our debate today are also quite clear. First, the debate over findings that dominated the scholarship post-Boerne is almost as old as the Act itself. Second, Justice Brennan wished to avoid precisely the kind of review advocated by Justice Thomas in his dissent in NAMUDNO. This was an area for Congress to legislate, and the Court would only subject the statute to low level rationality review. Questions of degree were for Congress to assess and determine, not the Court.

Tell it to the conservatives.

Thoughts on NAMUDNO

The Supreme Court handed down its decision in NAMUDNO v. Holder this morning.

And rather than confront the big issue head on, the Court essentially punted, setting the big question aside for another day. The special provisions of the Voting Rights Act remain in the books, ready for the next challenge.

The case raised two questions: First, can the utility district, which is neither a county nor a parish and does not register voters (and thus not a "political subdivision" under the explicit statutory definition) bailout from coverage of Section 4 of the Act? And second, if the utility district cannot bailout, then they argued that the preclearance requirements are unconstitutional.

The Court only reached the first question and concluded -- in a surprising 8-1 opinion authored by the Chief Justice -- that the utility district can attempt to bailout under section 4. While invoking the "constitutional avoidance" doctrine, in other words, the Court disposed of this challenge on statutory grounds. I have two initial thoughts about NAMUDNO and the Court's approach.

(1) Why would the Court avoid the constitutional question? Anybody who read the transcript of the oral argument could appreciate that the constitutionality of the Act rested on uncertain ground. Those who count votes could see at least 4 votes against the Act, and Justice Kennedy seemed a likely fifth vote. How did we get from that state of affairs to the decision we got today? One answer may very well be that the conservatives could not get Kennedy to go along. This is a big step, after all, and Kennedy might not be ready to take it quite yet. If this is true, then this outcome is the best that the conservatives could get, and the "liberals" were happy to go along, as this was a much better outcome than they had a right to expect.

If I am right about this, then the Act remains on solid constitutional ground for the foreseeable future. Justice Kennedy could always change his mind, of course, but until then, constitutional challenges to the Act are likely to go the way they always have. This is now the sixth challenge to the Act since its initial enactment in 1965 (Katzenbach; Morgan; Georgia; City of Rome; Lopez; NAMUDNO), and each and every time, the Court has deferred to the wishes of Congress. So the real question for the future is, why would the Court change its mind? What would have to happen for the Court to strike down this law? These questions lead me to my second thought . . .

(2) The Puzzle that is Justice Thomas. Eight justices were willing to set down the constitutional question and decide the case on statutory ground. Justice Thomas was not. He not only wanted to reach the constitutional question, but he also would strike down the special provisions of the Act as beyond the powers of Congress to enact.

This is remarkable. Remember that Justice Thomas is one of those rarified "classical jurists" who, as opposed to the "liberals," does not make law from the bench. Yet here he is in NAMUDNO, wishing to strike down portions of the Act because Congress did not put in the record enough evidence to satisfy him about the need for the statute any longer. Make no mistake: Congress had plenty of evidence in the record, thousands of pages worth. But the evidence Congress did have was not the evidence Justice Thomas wanted.

To Justice Thomas, Congress must have evidence of intentional racial discrimination in order to justify the extension of the Act any longer. In fairness, this makes some sense: the argument dates back to City of Rome, when the Court decided on the same day that the Fifteenth Amendment embodied a standard of intentional racial discrimination. Note: Could Congress prohibit state voting practices devoid of purposeful discrimination but only with a discriminatory effect? According to Justice Thomas, the answer is no. The full Court, in City of Rome, disagreed. Shouldn't Justice Thomas at the very least recognize this disagreement? And wouldn't a "classical jusrist," uninterested in writing law but only in interpreting it, side with all the prior rulings upholding the constitutionality of the Act?

To state the obvious: we are about to embark on a historic debate on the nomination of Judge Sotomayor to the Court. I am sure we will hear a lot about the conservative justices and their penchant for interpreting law, not making it, for calling balls and strikes, not for writing the rules of the game. When you hear these comments, think about Justice Thomas in NAMUDNO. Think also about the upcoming Ricci case. Talk to me then about judicial activism and "classical judicial jurists."

Open Letter to Justice Kennedy (and all other "Classical Judicial Jurists")

Dear Sir(s) --

I noticed that the NAMUDNO opinion is not out yet. I assume this means that it is taking up a lot of your time. This appears to be a hard case. But it is not really all that hard. Let me help you.


These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.

As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.

I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.

As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.

Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.

Respectfully,

CD

The End of the Voting Rights Act?

In the next few weeks, the spectacle known as the end of the Supreme Court term will be upon us. And with it, bizarre as it may seem, we will get answers to some of the most important and vexing questions of the day. I eagerly await for one answer in particular: in Namudno v. Holder, the Court will decide whether the special provisions of the Voting Rights Act remain a legitimate exercise of congressional power under the Fifteenth Amendment.

The puzzle began in 1965, when the Johnson administration devised a coverage formula that engulfed predetermined states within the special provisions of the Act. The formula itself seemed innocuous enough: the offending jurisdiction must use a literacy test as part of its voter registration process, and either its turnout rate for the 1964 presidential election or its registration rate on November 1, 1964 was below fifty percent. Once applied, the formula brought within the purview of the Act the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, as well as 26 counties in North Carolina.

To a cynic – and there were a few in Congress back then – the fact that these select jurisdictions came under the Act’s coverage must mean that the formula was nothing but an arbitrary ruse designed to penalize select southern jurisdictions. To the Supreme Court, however, the fact that these states were the worst known offenders corroborated the rationality of the formula.

The formula has remained essentially in place for 44 years. This is curious at best. How could this formula, intended as a temporary measure, remain unchanged for 44 years? The way that supporters of the Act defended the special provisions of the Act focused on their temporary nature; or as Representative Don Edwards, the House subcommittee chairman in 1975, “[t]he act that was the result of this frustration was a radical bill. It was bent on results without delay. It was also designed to be temporary. After a few years of harsh measures, the practices of a lifetime would be reversed and special Federal protection would no longer be necessary.” Are we to assume that none of the covered jurisdictions have improved in any noticeable way, and that voting problems have not surfaced elsewhere?

Maybe. But at the heart of the Namudno case is the question of institutional competence. Whether matters have improved or not, and whether the special provisions of the Act are no longer required, are questions for Congress to consider. These are questions of degree. These are also questions on which the Court has deferred to the will of Congress on four separate occasions, the last in 1999 and the Monterey County case. For the Court to now conclude that any existing problems no longer demand a congressional response of this magnitude would be for the Court to disagree with Congress on a question that, until today, was a question reserved for Congress. It would be for the Court to turn its back on precedents dating back four decades. If this is not judicial activism, I don’t know what is.

Make no mistake, the Court has been here before. The year was 1980, and the case was City of Rome. The civil rights movement had long disappeared from view, and the Nixon appointees finally had the votes and appeared poised to strike down the Act. The pieces were in place. Chief Justice Burger and Justice Blackmun had reserved judgment to this point, but in earlier concurrences had made clear that they were not friends of the VRA. The facts were also gift-wrapped: How could the Court justify the congressional enforcement of a discriminatory effect standard if the Fifteenth Amendment only protected against intentional racial discrimination (as the Court concluded the same day it issued the Rome opinion, in City of Mobile)?

The line-up was set: Justices Powell, Rehnquist and Stewart, to be joined by Chief Justice Burger and Justice Blackmun (and who knew, maybe even the newest Court member, Justice Stevens might come along).

But in the end, Burger and Blackmun could not do it. They signed on to Justice Marshall’s opinion upholding the VRA and did not offer their views on the matter.

So maybe, just maybe, Justice Kennedy will not be able to do it either. And that is just bizarre, even incomprehensible – the central policy questions of our time decided by the Court on a 5-4 vote, and a swing Justice holds all the cards.

It might be time to abolish judicial review after all . . .

Lazy Stereotyping and Coverage of Sotomayor

We’ve seen the criticisms leveled at Judge Sotomayor before. In fact, they correspond strikingly with traditional American stereotypes of Latin Americans. In 1940, the Office of Public Opinion Research conducted a poll where respondents were given a card with 19 terms on it. They were asked to choose which term(s) best described Latin Americans. The results were as follows:

Dark-Skinned (80%)
Quick-tempered (49%)
Emotional (47%)
Religious (45%)
Backwards (44%)
Lazy (41%)
Ignorant (34%)
Suspicious (32%)
Friendly (30%)
Dirty (28%)
Proud (26%)
Imaginative (23%)
Shrewd (16%)
Intelligent (15%)
Honest (13%)
Brave (12%)
Generous (12%)
Progressive (11%)
Efficient (5%)
No answer (4%)
No opinion (0%)

A quick scan of major news outlets reveals that, 69 years later, commentators from across the political spectrum still trot out the same stereotypes to criticize Sotomayor.


The old stereotype that Latin Americans lack intelligence manifests itself today in questions about Judge Sotomayor’s qualifications, intelligence, and, writing ability. Despite her Bronx to Princeton to Yale Law pedigree and almost 11 years of service on the Court of Appeals, Ponnuru labeled her “Obama’s Harriet Miers.” Rove put it a bit more straightforwardly (at about :40) on Fox News: “I’m not really certain how intellectually strong she would be…she has not been very strong on the Second Circuit.” On the left, Turley posits that she doesn’t have the “intellectual throw weight to make a difference on the court.” And Liptak argues that her opinions lack some sort of rhetorical flair. They “reveal no larger vision, seldom appeal to history and consistently avoid quotable language.” Instead, they’re merely “technical, incremental and exhaustive,” as if these three adjectives combine to form a slur.

The characterization of Sotomayor as “quick-tempered” and “emotional” has been brought up time and time again, though it is generally couched as an issue of “temperament.” In the New York Times, Becker and Liptak called Sotomayor “sharp-tongued and occasionally combative,” echoing Rosen’s anonymous sources, who described her as “kind of a bully on the bench” and “domineering during oral arguments, but her questions aren’t penetrating.” Deeper within their article, however, Becker and Liptak point out that “some observers” claim her “blunt” style might actually help her stand up to Scalia. So she’s either an angry Latina or potentially “an able politician on the Supreme Court,” but an article casting her as the former makes for better headlines.

The deeper one delves into the blogosphere, the more ridiculous the arguments become. Over at the National Review Blog Corner, Krikorian offers a laughable criticism: by retaining the Spanish “So-toe-my-OR” emphasis on the last syllable of her name, Sotomayor is “insisting [up]on an unnatural pronunciation.” Apparently, this “is something we shouldn’t be giving in to,” because when choosing a proper pronunciation of your last name, Anglicized “conformity is appropriate.” Notice both the “we” versus them distinction and the implication that her “unnatural” pronunciation of her own last name is “backwards.” And finally, without a readily available Latin American stereotype, how does the most recent National Review cover (top of post) depict Sotomayor the “Wise Latina?” Easy. It slants her eyes and makes her Buddhist.

Politically, these off-base stereotypes are unlikely to gain much traction. Senate Republicans appear unwilling to launch extreme personal attacks on Sotomayor, if only because they cannot afford to lose more Hispanic votes. For example, Senators Sessions, Hatch, and Cornyn all pointedly disagreed with Gingrich’s claim that she is a “racist.” Nonetheless, it’s still troubling that these stereotypes arise in this context. On so many levels, Sotomayor is a historic nomination to the Supreme Court, yet many commentators just want to discuss whether she’s too feisty.

Latin@ Justice

This morning, President Obama nominated judge Sonia Sotomayor to replace Justice Souter on the U.S. Supreme Court.  And as expected, the blogosphere is abuzz with the choice.  We know much about her story: a newyorican who went to Princeton University and Yale Law School, a former federal prosecutor first appointed to the federal bench by President George H.W. Bush.  But the points of agreement end there.  To the critics, she is a judicial activist, incompetent, and unworthy of the nomination; supporters on the left disagree with these attacks.

I do not know enough about Judge Sotomayor and her time on the bench to form an opinion about her judicial temperament or to take guesses about what kind of justice she might be.  But I am glad that President Obama nominated not only a woman, but a woman of color. It is about time.

In thinking about this nomination, I am reminded of Chief Justice Roberts’ confirmation hearing, where he analogized the role of the judge to the role of an umpire.  As the nominee explained to the Senate Judiciary committee, “My job is to call balls and strikes and not to pitch or bat.” No question, this is what judges should do, what we should expect them to do.  But to say that a justice is no more than an umpire is not to say that all umpires are the same.  As any keen baseball observer will attest, not all umpires are created equal.  When calling balls and strikes, for example, each umpire calls the game differently.  In fact, the strike zone itself is not an objective area, enforced equally by all umpires; rather, the strike zone changes from one umpire to the next, from one batter to another.  Some have broad strike zones; some have narrow ones.

The implication of the analogy should be clear.  As we look ahead to the work of the Court, it should be clear that different voices and perspectives should be represented.  This term alone the Court will decide the scope of two important civil rights statutes, Title VII of the Civil Rights Act of 1964 and Section 5 of the Voting Rights Act of 1965.  Could anyone familiar with these landmark laws really argue that the justices will decide these cases on the basis of anything other than ideology and their strategic calculations about how best to see their policy preferences reflected in law? That is, does anybody really – no, really – believe that judicial activism is reserved only for liberal judges? 

Critics usually respond by placing merit and color consciousness in opposition.  That is, Judge Sotomayor was nominated to the Court because she is a Latina and no other reason.  But this argument makes me wonder whether these critics have taken a look at the current composition of the Court, or at past justices.  Just curious: absent the Miers and Carswell nominations, I can’t think of many other instances in modern times when white nominees have been attacked similarly.  Why is it that, knowing very little else, critics assume that a Latina nominee owes her accomplishments to her race and not her hard work and intellect?

After 240 years and 110 justices, the Supreme Court might finally welcome its first Latin@ amongst its members.  For those keeping score at home, this would make it two Blacks justices, three women justices, and one Latin@ justice.  I can only hope there will be many more to come.  About time indeed.