I'm watching CNN and they're doing a segment on Haitian orphans. The issue is that there are a lot of orphans with a lot of well-meaning westerners, in this case Americans, who want to adopt them. Wolf Blitzer cautions that some of these "orphans" have parents who may be looking for them now or later. So, adoption, for those orphans whose paperwork had not started or were not completed, is not an option. Soledad O'Brien is having none of it. She launches into an intellectually and emotionally compelling argument this is not the time to drag one's feet and be bureaucratic because a lot of these kids are dying without a moment to lose. She concludes her argument with comment that there has to be a middle ground between leaving these kids to die in Haiti and taking them to the United States and elsewhere for permanent adoption. I think there is a middle ground.
Friday, January 22, 2010
Thoughts on Citizens United
I am a big fan of the First Amendment. A big one. What's not to like about its ringing endorsement of free speech, religion, and assembly?
But I am also a big fan of democracy and fair elections.
That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.
The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:
The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.
Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."
Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?
One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.
A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.
Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."
In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?
Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.
This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."
Something in our jurisprudence has indeed gone awry.
But I am also a big fan of democracy and fair elections.
That's why yesterday's opinion in Citizens United leaves me dissatisfied, even dumbfounded.
The specifics should be well-known by now: in its 5-4 ruling, the conservative wing of the Supreme Court overruled a twenty-year old precedent and struck down provisions of the campaign finance law that had been upheld seven years ago. Their message was simple: long live free speech. Or in Justice Kennedy's words, writing for the Court:
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
The liberals responded with a 90 page dissent. Their message was just as powerful: long live democracy, and God save this honorable Court.
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.
Opinions about the case abound. One common reaction would be to defend or attack the Court's ruling on the merits. This is great fun, and something law professors are quite good at. For the moment, the discourse remains at a much higher level of generality. To some, the Court dealt a severe blow to our Democracy, handed lobbyists a potent weapon to use against members of Congress, or, instead, the Court did what had to be done to defend our free speech -- the lifeblood or our democracy -- and "cherished American freedoms."
Seen this way, the question at the heart of the campaign finance debate comes into fuller view: how to decide between these competing arguments? How to choose one? Is the answer as simple as having the ability to count to five?
One answer, which the Court has used from time immemorial, points to the Constitution and the justices' oath to uphold it. In Citizens United, the argument is that the First Amendment is doing all the heavy lifting; the justices are simply doing their duty. This argument is fine as far as it goes. So is the story of the tooth fairy.
A much more intriguing answer is that the justices make it up as they go along. This is all about ideology and the justices' political attitudes. The justices themselves lend considerable fodder to this view, perhaps inadvertently. To see this, consider the Court's rejection of the avoidance doctrine.
Citizens United urged the Court to carve out an exception to the law's expenditure ban for non-profit corporations. If the Court had accepted this argument, it could have avoided the constitutional question. But of course, this argument is "not sustainable under a fair reading of the statute." Maybe so. One almost believes this to be true, but for the elephant in the room: The Namudno case. Then, the Court could interpret the Voting Rights Act's bailout provision in a way that steered the justices clear from the constitutional question. The only problem was, such a reading was not "sustainable under a fair reading of the statute."
In his concurring opinion in Citizens United, the Chief Justice does not hide the Namudno case under the rug, but cites it triumphantly, as a shining example of a Court doing its job, and doing it right. I would have thought that Namudno stood for exactly the opposite proposition: to what lengths will the Court go in order to reach its desired conclusion, notwithstanding the statutory text or the intent of Congress?
Such is the lesson of Citizens United. When five members of the Court set their sights on a price, they will stop at nothing, and neither precedent nor the statutory text will get in their way. Unless, of course, they change their minds.
This is the true measure of the philosopher king, bound not by his oath or duty but his legal acumen, his ability to get five votes or, as Justice Thomas reminded us in Holder v. Hall, his "imagination."
Something in our jurisprudence has indeed gone awry.
Thursday, January 21, 2010
Will the Administration's Fight with Banks Help the Democrats
The White House, which is showing its political astuteness, is reacting to populist anger by adopting populist policies. The target: banks. An early move was a tax on big banks. The latest move is to restrict the size and types of risks that the big banks can take. The question is whether this is going to work.
Citizens United on the Way?
At the close of oral argument yesterday, the Supreme Court marshal announced that the justices would hold a special session on Thursday at 10:00am. It appears that the long wait for the Court's ruling in Citizens United v. Federal Election Commission will finally come to an end.
Nothing gets me more excited than seeing professed fans of judicial modesty carving up federal laws and molding them to their liking while overturning long-standing, settled precedent. With a straight face.
I for one can't wait.
Nothing gets me more excited than seeing professed fans of judicial modesty carving up federal laws and molding them to their liking while overturning long-standing, settled precedent. With a straight face.
I for one can't wait.
Wednesday, January 20, 2010
Red Cross Needs People who Speak Creole and English
If you speak both creole and english, please read below. If you know someone who does please pass this on.
The American Red Cross is looking to deploy 100 Creole interpreters to workon the hospital ship USNS Comfort, which will be harbored outside Port-au-Prince. Volunteers need to be fluent in Creole and English. Other skills are helpful but not required.
Things to keep in mind:
(1) The ship will be deployed for a month;
(2) Volunteers won't be able to leave the ship during that time; and
(3) They will not have luxurious quarters. It is important to stress the second point: The interpreters will stay on the ship to assist and won't be able to get off the ship to see family in Haiti.
We are looking for volunteers to be in Miami no later than Wednesday night/Thursday morning (January 20/21). The Red Cross may be able to provide accommodations for those coming from out of town. All volunteers would be fully trained, either in Miami, or at their home chapters of the Red Cross before they come to Miami. Again, no skills are required beyond speakingboth Creole and English. Anyone interested in this opportunity will be contacted ASAP with additional steps. Please communicate to me immediately if you have persons who can do this and contact information.
Michael A. Blake
Deputy Associate Director
The White House - Offices of Intergovernmental Affairs & Public Engagement
(202) 456-4772 - Office
(202) 503-5649 - Cell
The American Red Cross is looking to deploy 100 Creole interpreters to workon the hospital ship USNS Comfort, which will be harbored outside Port-au-Prince. Volunteers need to be fluent in Creole and English. Other skills are helpful but not required.
Things to keep in mind:
(1) The ship will be deployed for a month;
(2) Volunteers won't be able to leave the ship during that time; and
(3) They will not have luxurious quarters. It is important to stress the second point: The interpreters will stay on the ship to assist and won't be able to get off the ship to see family in Haiti.
We are looking for volunteers to be in Miami no later than Wednesday night/Thursday morning (January 20/21). The Red Cross may be able to provide accommodations for those coming from out of town. All volunteers would be fully trained, either in Miami, or at their home chapters of the Red Cross before they come to Miami. Again, no skills are required beyond speakingboth Creole and English. Anyone interested in this opportunity will be contacted ASAP with additional steps. Please communicate to me immediately if you have persons who can do this and contact information.
Michael A. Blake
Deputy Associate Director
The White House - Offices of Intergovernmental Affairs & Public Engagement
(202) 456-4772 - Office
(202) 503-5649 - Cell
Gerrymandering in Massachusetts
Everybody has an opinion about yesterday's election in Massachusetts. To some, this was a referendum on health care, with the voters telling President Obama where to stuff it. To others, this was Coakley's fault, or Brown's doing, or likely a little bit of everything.
I don't have any particular insight about what happened yesterday. What I do find intriguing is the notion that a Republican candidate running in a state-wide election for a seat held by a Democrat for generations -- this is Ted Kennedy's seat, for heaven's sake! -- could in fact win. This is what Senator Brown did.
I can't say that I am happy about the outcome. But I will say this: this is a wonderful teachable moment for those of us teach election law.
Here's the story we have heard a thousand times: few congressional races remain competitive, so that elections are a sham and voters have no real choices. What American Democracy needs, this argument concludes, is a structural jolt to the system, in the form of better line-drawing. And since the line-drawers themselves won't fix the problem, it must be the courts who do it.
One can respond to this argument in many ways. For example, many details affect the outcome of an election, from money and issues to the national mood and the way a candidate runs an election. I am particularly attracted to the view that voters within a district are not partisan automatons, unthinking and unbending in their partisan zeal for whomever their party's candidate may be. In the end, for example, they can always choose not to turn out to vote at all.
Whatever your views may be about elections and safe electoral seats, yesterday's election should give you a chance for pause and reflection. One approach might be to assign blame, and surely there is much of that to go around. You should resist that impulse, unless you are a campaign operative seeking to learn from this election as you move on to the next. For the rest of us, this elections offers an opportunity to reflect on the nature of campaigns, "safe" seats and calls for courts to structure our democratic institutions in whatever way we deem proper.
Here is how I see it: a scant few weeks ago, Coakley was a prohibitive favorite, an incumbent running within the safe confines of an electorate strongly tilted in her favor. All indicators pointed to her return to the Senate. What seemed like no choice at all for voters in Massachusetts, however, became a stark issue the week before the election. In the meantime, something happened on her way back to Washington. The electorate changed its mind, or rather, independents made up their minds.
To place too much stock on this election would be foolish, of course. Elections seldom happen this way, with the nation focused on one particular race, and the fate of the western world seemingly hanging on the balance. I get that. I also get that Senator Kennedy kept this seat for over forty years, and would have won every election into the future. (query: for all the blame going around, and the claims about all the messages and signals the voters sent Washington yesterday, what does this fact about Senator Kennedy's electoral prospects in perpetuity say about the American Voter?) But at the very least, this election shows that it is possible for heavy underdogs to win, even in the face of a slanted electorate, what amounts to a statewide gerrymander.
It is trendy for election law scholars to focus much attention on electoral structures, or the many obstacles facing the American voter. The real lesson of yesterday's election in Massachusetts is that we should focus just as much attention on the American voter.
I don't have any particular insight about what happened yesterday. What I do find intriguing is the notion that a Republican candidate running in a state-wide election for a seat held by a Democrat for generations -- this is Ted Kennedy's seat, for heaven's sake! -- could in fact win. This is what Senator Brown did.
I can't say that I am happy about the outcome. But I will say this: this is a wonderful teachable moment for those of us teach election law.
Here's the story we have heard a thousand times: few congressional races remain competitive, so that elections are a sham and voters have no real choices. What American Democracy needs, this argument concludes, is a structural jolt to the system, in the form of better line-drawing. And since the line-drawers themselves won't fix the problem, it must be the courts who do it.
One can respond to this argument in many ways. For example, many details affect the outcome of an election, from money and issues to the national mood and the way a candidate runs an election. I am particularly attracted to the view that voters within a district are not partisan automatons, unthinking and unbending in their partisan zeal for whomever their party's candidate may be. In the end, for example, they can always choose not to turn out to vote at all.
Whatever your views may be about elections and safe electoral seats, yesterday's election should give you a chance for pause and reflection. One approach might be to assign blame, and surely there is much of that to go around. You should resist that impulse, unless you are a campaign operative seeking to learn from this election as you move on to the next. For the rest of us, this elections offers an opportunity to reflect on the nature of campaigns, "safe" seats and calls for courts to structure our democratic institutions in whatever way we deem proper.
Here is how I see it: a scant few weeks ago, Coakley was a prohibitive favorite, an incumbent running within the safe confines of an electorate strongly tilted in her favor. All indicators pointed to her return to the Senate. What seemed like no choice at all for voters in Massachusetts, however, became a stark issue the week before the election. In the meantime, something happened on her way back to Washington. The electorate changed its mind, or rather, independents made up their minds.
To place too much stock on this election would be foolish, of course. Elections seldom happen this way, with the nation focused on one particular race, and the fate of the western world seemingly hanging on the balance. I get that. I also get that Senator Kennedy kept this seat for over forty years, and would have won every election into the future. (query: for all the blame going around, and the claims about all the messages and signals the voters sent Washington yesterday, what does this fact about Senator Kennedy's electoral prospects in perpetuity say about the American Voter?) But at the very least, this election shows that it is possible for heavy underdogs to win, even in the face of a slanted electorate, what amounts to a statewide gerrymander.
It is trendy for election law scholars to focus much attention on electoral structures, or the many obstacles facing the American voter. The real lesson of yesterday's election in Massachusetts is that we should focus just as much attention on the American voter.
Tuesday, January 19, 2010
What Does Scott Brown's Win Mean for President Obama's Agenda
As far as I'm concerned, any Democrat who says that this victory is not a major wake-up call to Democrats everywhere is either lying or delusional.
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