Freedom Line Blog

President Obama officially nominated DC Circuit Chief Judge Merrick Garland to fill Justice Antonin Scalia’s seat on the U.S. Supreme Court.  The president dedicated a considerable amount of time during his announcement speech to make the case that Judge Garland is a “consensus” nominee.

But who is Judge Garland and how does he view the U.S. Constitution?

While much will be written and analyzed about Judge Garland and his judicial record in the coming days and weeks, Carrie Severino, a former clerk to Supreme Court Justice Clarence Thomas and Chief Counsel and Policy Director at the Judicial Crisis Network, provides some insight to help answer that question.  In a piece for National Review’s Bench Memos titled “The ‘Moderates’ Are Not So Moderate: Merrick Garland,” Severino wrote last week:

Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.

Back in 2007, Judge Garland voted to undo a D.C. Circuit court decision striking down one of the most restrictive gun laws in the nation. The liberal District of Columbia government had passed a ban on individual handgun possession, which even prohibited guns kept in one’s own house for self-defense. A three-judge panel struck down the ban, but Judge Garland wanted to reconsider that ruling. He voted with Judge David Tatel, one of the most liberal judges on that court. As Dave Kopel observed at the time, the “[t]he Tatel and Garland votes were no surprise, since they had earlier signaled their strong hostility to gun owner rights” in a previous case. Had Garland and Tatel won that vote, there’s a good chance that the Supreme Court wouldn’t have had a chance to protect the individual right to bear arms for several more years.

Consensus nominee?  You decide.

Several news sources, including the Associated Press, are reporting that President Obama will nominate Judge Merrick Garland to fill Justice Scalia’s seat on the U.S. Supreme Court.

From the AP piece:

WASHINGTON (AP) — President Barack Obama will nominate federal appeals court judge Merrick Garland to the Supreme Court, congressional sources said Wednesday. …

Garland is the chief judge for the United States Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential Supreme Court justices. …

Congressional sources spoke on condition of anonymity because Obama had not yet announced his choice. …

Obama planned to introduce his pick at 11 a.m. in the White House Rose Garden.

Following the tragic news of Supreme Court Justice Antonin Scalia’s passing, Senate Majority Leader Mitch McConnell and other Republican lawmakers rightly have been arguing that Scalia’s replacement should be left to the next President.

Predictably, Senator Charles Schumer (D-NY), Harry Reid’s hand-picked replacement to become the Senate Democrat leader following Reid’s retirement in 2016, is crying foul.  On ABC’s “This Week,” Schumer bemoaned, “You know, the kind of obstructionism that Mitch McConnell’s talking about, he’s harkening back to his old days.”

But it was Schumer, back in July 2007, who argued in a speech to the American Constitution Society that, except for in extraordinary circumstances, the Senate should block any Supreme Court nominations made by President George W. Bush during his remaining time in office.  At the time, Schumer said:

We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.

Schumer went on to add:

We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.

For the record, there were 18 months left in George W. Bush’s term when Schumer argued that the Senate block any additional nominees the President may have made to the Supreme Court.  The nation is now less than seven months away from electing Obama’s successor.

Though we learned with the Arizona illegal immigration decision that tough questioning from justices does not mean a Supreme Court slap-down – indeed, Justice Sotomayor was particularly hard on the feds’ position but ultimately upheld its arguments, as did Justice Kennedy and Chief Justice Roberts – I’m betting (with Quin’s money, of course) that Justice Scalia’s quip about the page length of ObamaCare provides a window into tomorrow’s outcome.

During oral argument Scalia brushed aside the suggestion that should the Court rule the individual mandate unconstitutional it would need to reconstruct the law by piecing together the parts that are still valid.  Scalia’s response was, “You want us to go through 2,700 pages?  Is this not totally unrealistic… to go through one by one and decide each one?”

I think the Court will strike down the individual mandate because it forces Americans to participate in commerce, an unprecedented power grab by the federal government.  (Ironically, had the Obama Administration framed the penalty for not buying insurance as a tax, most constitutional scholars on the right and left agree the mandate would survive.  However, the reason government lawyers haven’t framed it that way is because Obama and the Democrats in Congress repeatedly and explicitly said no one’s taxes would go up if ObamaCare passed, meaning that calling the mandate a tax during litigation would likely make the entire law even less popular with the public.)

Because of all this, I think the Court will do everyone a favor by holding the individual mandate unconstitutional and finding that the rest of the law is not severable from it.  (Which is easy to do since in the rush of ramming the bill around the normal legislative process Congressional Democrats forgot to put in a simple severance clause that would let the rest of the law stand if the mandate falls.)

Thus, everyone gets a blank slate and the Court is not patching together a form of the health reform law that no one voted on or signed.

For what it’s worth, there’s my (or rather Quin’s) two cents.

It’s the first Monday in October which means that the Supreme Court of the United States (SCOTUS) is back in session.  Uber-liberal constitutional law expert Erwin Chemerinsky is not celebrating the occasion.  Instead, he bemoans the conservative ‘take-over’ of the court and sites as evidence the fact that Republican presidents from Nixon to Bush II made a total of 12 appointments to SCOTUS while only two Democrat nominees made it onto the bench.  (Bill Clinton appointed Ruth Bader Ginsburg and Stephen Breyer, while Jimmy Carter was faced with no vacancies during his term.)

Chemerinsky, the dean of UC Irvine’s law school, singles out 4 of the 12 appointments (John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) as proof of the conservative ascendency.  But for conservatives a success rate of 33% is hardly a victory; especially when considering that both of President Barack Obama’s SCOTUS appointments replaced Republican nominees, yet didn’t alter the conservative-liberal voting patterns.  Gerald Ford appointed John Paul Stevens, a man who ended his tenure as the leader o the court’s liberal bloc.  Bush I appointed David Souter, a justice who voted in lock-step with Stevens and the court’s other liberals.

True, Bush I gave us Thomas, and Reagan hit a home run with Scalia, but Reagan also put soul-crushing moderates like Sandra Day O’Connor and Anthony Kennedy on the bench; two people who repeatedly frustrated conservatives on issues across the political spectrum.  Ironically, at least to some, is the SCOTUS legacy of Bush II who made solid conservative appointments with Roberts and Alito.  That these two often team with Thomas and Scalia (and manage to cajole Kennedy to heed his better angels) is more the result of a historical accident than a carefully executed strategy.

Imagine the kind of country we could be enjoying had Republican presidents from Nixon to Bush I had a conservative justice success rate of 66% rather than 33%.  As it is, since at least the Eisenhower Administration (Earl Warren, William Brennan) liberals like Chemerinsky have benefited handsomely from liberal appointments by supposedly conservative GOP presidents.

Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents.  In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.

Justice Clarence Thomas takes a different approach.  His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process.  The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago).  In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14^th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.

In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.

Thus, if it’s true that there are certain fundamental rights – like the 2^nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause.  Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.

All lawyers should strive to be so helpful.

Retirement must be a wonderful thing for former Supreme Court Justice David Souter.  Unburdened by the consequences of deciding cases, the judicial version of a RINO (Republican In Nomination Only) is telling Americans what he wants them to hear.  In essence, judging isn’t easy.  Thus, demands to restrict a judge’s attention to the text of a statute or the Constitution itself when deciding a dispute are pointless because a written law can’t contemplate every situation.  Sometimes a judge has to be a gap-filler.

Souter’s recent commencement address at Harvard is worth the read to get a sense of a pointed critique of Justice Antonin Scalia’s countervailing view of textual interpretation (A Matter of Interpretation).  Ironically, the main gripe with Souter’s speech isn’t its substance, but its timing.  Even Dahlia Lithwick of Slate stammers to explain a reason for waiting until after serving 19 years on the Supreme Court to make a cogent counterpoint.

Are the Justices overworked?  They do, after all, get summers off.  Of the current crop, only Justices Steven Breyer (Active Liberty) and Scalia have written books explaining their methods of interpretation – and Scalia’s is an edited version of lectures he gave.  Since Souter didn’t take the time to write a systematic approach to judging while judging, perhaps he’ll use some of his self-imposed availability to give future judges a sense of how to wrestle with the complexities of the job.

Given Souter’s temperament, such a book may be published posthumously.

Today, the U.S. Supreme Court resumes its 2009-2010 term with a round of two oral arguments.  Though the two cases that pit Alabama v. North Carolina and Briscoe v. Virginia have national legal implications, court watchers are eagerly awaiting other consequential decisions this term.

The fate of the First Amendment and campaign finance reform could be decided as early as tomorrow in Citizens United v. FEC.  The justices reargued the case on September 9, 2009, but the Court has yet to report a decision.  With federal primary elections less than a month away, candidates and First Amendment lawyers seek guidance from the Court as soon as possible.

The best case scenario would be a broad sweeping opinion striking down many of McCain-Feingold’s onerous First Amendment restrictions.

In addition, the spring term ushers in a new round of retirement speculation.  Justice John Paul Stevens is the oldest member of the Court, 89, and has not hired his full slate of clerks for the next Supreme Court term.

This article also mentioned the possible retirement of Justice Antonin Scalia.  Any vacancy would cause political wrangling in the Senate but a Scalia departure, coupled with President Obama’s liberal record on judges, would result in a judicial and political Armageddon unseen since the days of Judge Robert Bork.

Whatever occurs during the conclusion of this Supreme Court term will surely have major implications for individual rights and the future of our Constitution.

There’s an old legal adage that ignorance of the law is not a defense. On the other hand, since the earliest days of our Republic the U.S. Supreme Court has refused repeated invitations to create crimes using so-called “federal common law.” The reasoning behind the Court’s reluctance goes like this. In a nation of laws – not men – people should have some kind of notice about what is and is not legally permissible. Punishing someone after the fact for an act that was legal (or, if you prefer, not illegal) at the time it was carried out is akin to the types of political prosecutions conducted under the Stuart kings of England. Allowing federal judges to apply broad principles of justice to specific facts alleged by the government to be criminal, even though there is no specific prohibition in print, is hardly an improvement. An example of how important this notice notion is to our civil order can be found in the Ex Post Facto Clause of the U.S. Constitution.

What’s the point? Today the U.S. Supreme Court agreed to hear its third appeal in the last year regarding the meaning (and in one case, perhaps the constitutionality) of the federal crime of “honest services” fraud. The Wall Street Journal’s Law Blog contains a quick synopsis of the appeals involving former Enron executive Jeffrey Skilling, Canadian newspaper mogul Conrad Black, and the class action law firm Milberg. A more extended discussion can be found at the Scotusblog website. Both are well worth the read.

In essence, critics of honest services fraud claim that it has been:

“…invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries…Without some coherent limiting principle to define what ‘intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

And that’s just Justice Antonin Scalia’s view. For those interested in having readily available, clearly stated criminal laws, the Supreme Court’s decisions in these cases will be eagerly anticipated.