On May 25 in the town of Baqubah, Iraq, Ms. Iman Salih Mutlak, 22, was gunned down by U.S. soldiers, who said she relentlessly charged at them, despite orders to halt, intending to explode the 10 grenades she was carrying. While some Iraqis treated her as a courageous martyr, her family in Zaqaniyah, Iraq, was disgusted with her, not because they are pro-American, but because she shamed them by leaving home without permission. Said her father, to an Associated Press reporter in May, "Had she returned home, I would have killed her myself and drunk her blood." [Augusta (Ga.) Chronicle-AP, 5-31-03]
Nation-building? How about civilization-building?
On a more serious note, it does seem that our work really is cut out for us in Iraq.
For readers desiring a brief explainer of the forces that led to our pre-Iraq predicament, I recommend Bernard Lewis's The Crisis of Islam. Under two-hundred pages in length, Lewis's pithy tome provides a great deal of information and food for thought. And, on an entirely egocentric note, I was gratified to see my own analysis of the Crusades confirmed:
The same period saw a first awakening of interest among Muslims in the Crusades, which had aroused remarkably little concern at the time they occurred. The vast and rich Arabic historiography of the period duly records the Crusaders' arrival, their battles, and the states that they established but shows little or no awareness of the nature and purposes of their venture. The words Crusade and Crusader do not even occur in the Arabic historiography of the time, in which the Crusaders are referred to as the infidels, the Christians, or most frequently, the Franks, a general term for Catholic—and later also Protestant—European Christians, to distinguish them from their Orthodox and Eastern coreligionists. Awareness of the Crusades as a distinctive historical phenomenon dates from the nineteenth century, and the translation of European books on history. Since then, there is a new perception of the Crusades as an early prototype of the expansion of European imperialism into the Islamic world. A more accurate description would present them as a long-delayed, very limited, and finally ineffectual response to the jihad. The Crusades ended in failure and defeat, and were soon forgotten in the lands of Islam, but later European efforts to resist and reverse the Muslim advance into Christendom were more successful, and initiated what became a series of painful defeats on the frontiers of the Islamic world.
Bernard Lewis, The Crisis of Islam 50-51 (2003).
And, while I am recommending books, for those interested in first-hand accounts of the Crusades, allow me to commend two to your attention: Odo of Dueil's chronicle of the Second Crusade and Joinville's account of the Seventh Crusade.
. . . until recently prison rape was the subject of late-night comedy and jokes about dropping the soap. But that’s changing now. Congress has passed the Prison Rape Elimination Act of 2003, which—while not really living up to that rather grandiose name—does suggest that someone is beginning to take the problem seriously. Joanne Mariner has written a column explaining the act, and I agree with her that it’s really a fairly modest piece of legislation whose real significance is in its acknowledgment of the problem. But it’s hard to do anything about a problem until you acknowledge it.
Mariner relates that:
Notwithstanding its ambitious title—an improvement over its previous, dismayingly modest title of Prison Rape Reduction Act—the new law will not put an end to rape in prison. The main focus of the legislation is on studying prison rape, collecting statistics relating to the problem, and developing national standards for the prevention and punishment of prison rape. Its enforcement mechanisms are relatively weak. (Indeed, the fact that the bill passed Congress unanimously should be proof enough that it lacks vigorous enforcement mechanisms, a failing that the text of the bill confirms.)
To the extent that the problem is the lackadaisical attitude of correctional authorities themselves—and Mariner’s pithy article suggests that this at the very least an aggravating factor—this legislation may prove significant. However, I am less than optimistic for several interrelated reasons. Bear in mind at the outset that the problem is already a full-blown crisis. Richard D. Vetstein, Note, Rape and AIDS in Prison: On A Collision Course to a New Death Penalty, 30 Suffolk U. L. Rev. 863, 863 (1997) (“In United States’ correctional institutions, instances of sexual violence occur at a staggering rate. Some researchers estimate that of the forty-six million Americans who will enter the criminal justice system at some point in their lives, ten million will be raped while in custody.”)
The prison population is expanding. Much of the expanding prison class is made up of nonviolent criminals who will have to coexist with far less savory offenders. The profile of the average prison-rape victim isn’t really a matter of dispute: the weaker, less violent offenders generally serve as the prey of larger and more antisocial convicts. Thus, present demographic trends in incarceration are a formula for even greater tragedy. See Vetstein, supra, at 864 (“Statistics suggest that the rise in our nation's incarceration rate will increase violence inside prison walls . . . .”).
I have no idea how the legislation in question intends to reliably gather statistics. Mariner writes of the state of denial (or dissemblance) in which the prison establishment dwells on this issue. Given the legal standard for recovery against prison officials for turning a blind eye to prison rape, see Farmer v. Brennan, 511 U.S. 825, 834-847 (1994), it is hardly likely that prison authorities wish to be made aware of the full extent of the situation or to assist in the creation of the sort of documentary evidence that would prove detrimental (to the institution or its employees) at trial. Moreover, there are serious disincentives to self-reporting of sexual assaults that occur behind bars quite apart from the usual shame and self-loathing that frequently accompany an attack. See Vetstein, supra, at 870 (noting that “few victims of prison rape report these offenses in fear of retribution from their attackers”).
In addition, while the complacency (or complicity) of prison authorities is an aggravating factor, it is hardly the cause of most inmate-on-inmate sexual violence. As Justice Thomas has noted:
Prisons are necessarily dangerous places; they house society's most antisocial and violent people in close proximity with one another. Regrettably, "[s]ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do . . . unless all prisoners are locked in their cells 24 hours a day and sedated."
Farmer, 511 U.S. at 858-59 (Thomas, J., concurring in the judgment) (quoting McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991)).
Hence, in some measure, prison rape is a consequence of the embrace of penological alternatives to more extreme forms of punishment. Regarding the advent of America’s preference for incarceration, see Jon M. Sands, Book Review, Federal Lawyer, June 2003, at 50 (reviewing Stuart Banner, The Death Penalty: An American History (Harv. Univ. Press, 2002)); see also The Honorable Stephen N. Limbaugh, Jr., The Case of Ex Parte Lange (Or How the Double Jeopardy Clause Lost Its “Life or Limb”), 36 Am. Crim. L. Rev. 53, 77 (1999). Ironically, incarceration—a departure from the European legal tradition of capital punishment—was originally conceived as a more humane manner of dealing with offenders. Now, given the rates of HIV in our nation’s penitentiaries, a term of imprisonment may well amount to a death sentence for many due to the prevalence of prison rape. See Vetstein, supra, at 865 (“The rate of HIV infection continues to rapidly increase among our country's incarcerated. . . . When AIDS and rape converge within our prisons, many inmates face an unintended form of capital punishment . . . .”).
Perhaps, I am unduly pessimistic, but I see little promise in the present legislation. Systemic reform of our prison system, and our approach to crime and punishment in general, is required.
. . . One may as well wonder whether Mr. Pryor has any genuine beliefs if he is willing to uphold law on abortion when he thinks it murder.
I have previously criticized this view, and I continue to think that it is deeply mistaken. The truth is that judges must routinely uphold laws that they find to be less than desirable. It is also not uncommon for judges to be faced with situations in which they must vindicate either (a) laws that they consider immoral, or (b) particular applications of the law that they regard as leading to an unjust result.
The Federal Sentencing Guidelines and Other Thought Experiments
Consider, for example, the United States Sentencing Guidelines, which govern the sentences meted out to criminal defendants. There is no end to the discontent that district court judges express regarding these prolix provisions. Although the purpose of the guidelines was supposedly to eliminate disparities in sentencing and render sentences for like offenses uniform, it is a commonplace that the Sentencing Guidelines lead to unreasoned and unjust results with some frequency. See, e.g., United States v. Davern, 970 F.2d 1490, 1502 (6th Cir. 1992) (Merritt, Chief J., dissenting) (“The facts surrounding his arrest and conviction illustrate with clarity the unjust and ultimately indefensible system effectuated by the application of the Sentencing Guidelines.”), cert. denied, 507 U.S. 923 (1993); United States v. Shepherd, 857 F. Supp. 105, 111 (D.D.C. 1994) (“This Court, along with many others, has repeatedly expressed its dismay at the restraints Congress and the Sentencing Commission have hoist upon sentencing courts in recent years.”), remanded by 102 F.3d 558 (D.C. Cir. 1996).
The same observations could be made with reference to statutorily mandated minimum sentences. See United States v. Harris, 536 U.S. 545, 570 (2002) (Breyer, J., concurring) (“During the past two decades, as mandatory minimum sentencing statutes have proliferated in number and importance, judges, legislators, lawyers, and commentators have criticized those statutes, arguing that they negatively affect the fair administration of the criminal law, a matter of concern to judges and to legislators alike.”). Indeed, the Sentencing Guidelines and mandatory minimum sentences are sometimes thought to interact in a less than benign fashion. See Shepherd, 857 F. Supp. at 108 (“As indicated above, the interplay between the statutory minimums, the sentencing guidelines, and the actions of the law enforcement officer in this case lead to an entirely unjust result, and one that, in practical terms, leaves the determination of the defendant's sentence in the hands of police officers.”).
Nonetheless, there is no question that individual judges may not reject the results dictated by the Guidelines on the basis of their own personal sense of justice:
While we find much to agree with in the District Court's general sentiments regarding the inflexibility of the Guidelines, we cannot let stand the District Court's patent rejection of the appropriate Guideline provisions. "[T]he Guidelines, having the force and effect of law, are to be construed as if they were a statute." A district court has no authority to disregard or fail to apply a Guideline provision, even if it believes that they dictate an unjust result. As we stated in United States v. Koczuk, . . . "dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range."
United States v. Reynolds, Nos. 01-1202L, 01-1253XAP, 2001 WL 1486198, at *3 (2d Cir. 2001) (unpublished opinion) (internal citations omitted); see also United States v. Blackwell, 127 F.3d 947, 957 n.9 (10th Cir. 1997) (“Although the district court now feels its original sentence of Mr. Blackwell was unjust, the district court's subjective opinion of justice and fair play do not allow it to evade the requirements of the sentencing guidelines.”).
So what is a district judge to do? Resign? Recuse himself (or herself) in cases that are morally objectionable?
But the problem is broader than even the Sentencing Guidelines suggest. Many, including sitting judges, find various substantive federal criminal laws to be morally offensive. Are serious libertarians precluded from being nominated to the federal bench due to their objections to the Drug War, for example?
Perhaps, one might distinguish such moral conflicts from the one supposedly faced by Pryor on the ground that abortion concerns a matter of life and death, whereas mere sentencing issues do not. However, I do not think that such a distinction is very tenable. Sentencing a defendant to incarceration is among the gravest functions of the judiciary. Our penal institutions are grim facilities in which the coarsest brutalities are a way of life. I take it that liberals and conservatives alike are ready to concede that the modern prison system is almost entirely bereft of rehabilitative value, that penitentiaries are little more than dehumanizing warehouses. For those who value life, the sentencing of even a single individual is a grave matter, one fraught with moral content.
Perhaps, one might concede that such a distinction is untenable and instead distinguish Pryor and his abortion views as a matter of scale. That is, one might contend that whatever decisions Pryor might make regarding abortion might affect millions, whereas sentencing issues are less far-reaching. However, as an empirical matter it is not clear to me that Pryor, as a circuit judge, will have the opportunity to have such far-reaching influence over abortion policy. All serious abortion issues ultimately lie with the Supreme Court. Moreover, the statistical likelihood of Pryor, as one circuit judge out of many, hearing such a case is attenuated. Whereas, it is far more likely that one (or more) of the innumerable criminal sentencing appeals will reach any Eleventh Circuit panel that he happens to sit on. In short, the likelihood that Pryor will even be in a position to be morally conflicted regarding abortion while on the bench is not overly great.
But, of course, one need not rest content with the Sentencing Guidelines as an example. If one requires an issue that more immediately involves issues of life and death, one might also consider issues like the death penalty. Under the present regime, the death penalty remains perfectly constitutional under the federal Constitution. Are those who are morally disquieted (especially those who are very disquieted) to be excluded from the federal bench?
The Stricter Scrutiny Counterargument
My correspondent responds that:
It is not my view that moral disagreement with law should preclude service as a judge. . . . I do think that a nominee who sincerely believes that abortion is murder is faced with a very difficult choice, as is a nominee who believes capital punishment is immoral. It is appropriate to subject such persons to more searching questioning because they come into the process announcing that they believe that there are compelling claims against enforcement of the law. But that is a very long ways from disqualification or presumptive disqualification.
This is a much more nuanced view than the aforementioned notion that moral conflicts pose a bar to confirmation. However, I nonetheless think that it entails a flawed conception of what the confirmation process ought to consist of. First, this sort of stricter scrutiny, when filtered through the politics of the present incendiary nomination and confirmation process is likely to be strict in theory and fatal in fact. Second, as a practical matter, every judge has such conflicts. No serious lawyer cannot point to a statute or bit of the common law that he (or she) does not find morally repugnant. Every judge faces moral conflicts on the bench, inasmuch as no single judge concurs with the entirety of the United States Code, the federal rules of evidence and procedure, or the present state of constitutional law. Only an amoral judge would be altogether free of such conflicts. I take it that no one is suggesting that an amoral judiciary is possible let alone desirable.
Conclusion
None of this says anything about the merits of the Pryor nomination. Although I have followed the broad outlines of the Pryor debate, and have regarded some of his detractors’ accusations in detail, I do not have an opinion on the nomination itself. One hardly need be pro-Pryor to regard assertions that those whose moral beliefs conflict with the present state of the law are either (a) unfit for confirmation, or (b) ought to be subject to a higher standard of review than other nominees as little more than political objections masquerading as concern for judicial integrity.
UPDATE:
Will Baude has a nice post on this subject in which he concurs, in part, with my sentiments. He offers the following choice anecdote:
. . . [L]ast Spring, an interviewer asked me, "You write on your application that you want to be a Federal Judge, but as a Libertarian you must believe the drug war is immoral. So how would you be able to sentence non-violent drug-users to ten, fifteen-year minimum sentences?" I replied with an answer a lot like The Clerk's, about the interest of the rule of law and the fact that every judge had to put aside some of his beliefs. The interviewer shot back, "Well what if the penalty was death?" Immediately, I responded, "If the law imposed the death penalty for non-violent drug possession, it would be time to resign my judgeship."
No doubt, every individual (even Pryor) has such a moral breaking point, a point at which their own moral values compel dissociation from an enterprise that runs afoul of said judgments. However, I do not think this fact is particularly useful in the confirmation process precisely because of its universality. That is, this is a facet of character that all nominees possess. It is only, perhaps, an issue if and when one can establish that a given nominee's breaking point lies at an unacceptably low threshold (i.e., that a given nominee will generally allow his personal moral judgments to outweigh legal considerations).
Therefore, it is, perhaps, valid to inquire as to whether the empirical evidence demonstrates that Pryor has such a low threshold, though any past conduct qua evidence is of limited probative value given that he has never occupied the judicial role and been subject to its obgligations in his past legal decision-making. But it is not valid to assert that the mere existence of moral misgivings about the state of the law is itself suspicious or evidence of a character defect that disqualifies one from judicial service.
Moreover, I think it is telling that Baude's unidentified interviewer had to resort to a counterfactual and highly implausible hypothetical scenario in order to elicit Baude's concession that there is a point at which he would be forced to resign due to personal moral judgments. It is telling because of the interviewer's apparent need to manufacture circumstances other than those prevailing in the present legal order. That is, most nominees, being creatures of their time and place, are sufficiently at peace with the prevailing state of affairs that present circumstances do not compel them withdraw from governmental roles in order to preserve their own sense of moral integrity.
With the foregoing observations in mind, I get the sense that what is driving much of the suspicion regarding Pryor's nomination is the perception that his views on abortion are extremist in nature. While his rhetoric on the topic has, perhaps, been immoderate, his actual position is shared by a significant minority of our polity. Three members of the current Supreme Court would overrule Roe v. Wade today, if they could. And a majority of the Court seems to embrace the notion that some regulation of abortion rights is constitutionally valid, a position that also enjoys much support among the populace. Hence, it is difficult to view Pryor's personal moral position itself as cause for concern.
Finally, for those not yet sufficiently convinced, I would like to suggest two analogies for examining the issue of personal moral conflicts with public and professional duties:
First, consider, the recent military campaign in Iraq, which roused considerable moral objection from a sizable minority of the populace. No doubt, this moral disapproval was shared by some members of the armed services and members of the professional government bureaucracies (e.g., State Department and Department of Defense personnel). Were such dissenters all morally bound to refuse to obey orders or resign in the face of war? Are those who failed to do so morally suspect or worthy or condemnation?
Second, consider the moral worth of lawyers, a case that is particularly relevant to the topic at hand. Lawyers frequently represent clients and positions with which they disagree on ethical or moral grounds (e.g., Federal Public Defenders) Although this sometimes leads to accusations that attorneys are mere mercenaries or hired guns, zealous advocacy of a client is one of the touchstones of the Anglo-American legal system. Is the whole enterprise amoral or outright immoral? Are attorneys who subordinate their own sense of right and wrong, which is generally all attorneys at one time or another, amoral or immoral? Doesn't it say something about the nature and validity of the Pryor-is-morally-conflicted-and-therefore-suspect argument that all lawyers and judges are so conflicted, and that our very legal and governmental systems are built on foundations that contemplate and legitimate these very conflicts?
Thanks also to frequent debating partners Will Baude and Timothy Sandefur for links here and there along the way. And I would also like to extend my thanks to Cicero's Ghost for blogrolling me.
I make it a point to thank those who link this site, because I'm always flattered by the praise that a link represents, even when criticism is involved. I feel privileged that others find my musings here worth reading and commenting on. The same goes for e-mail correspondence. I genuinely appreciate the feedback. Thanks to all.
“Well, you did take time off to get married, and then you came back pregnant,” responded the managing partner when I asked why I hadn’t received any new assignments in eight months. I appreciated the frankness, but found it hard to believe that a large New York law firm could be so blatantly negative towards a pregnant associate. What of the firm’s promises that retention of women associates was a priority and indeed the subject of a new and improved “diversity committee”? This story has no happy ending. My experience as a second-year pregnant associate was akin to that of a leper in a public square – ignored, shunned, rejected.* * * Early in my second year I married the man of my dreams and we decided to start a family. My bad. After missing a couple days with morning sickness, I naively decided to announce my pregnancy. The response: silent disregard. I was immediately taken off one of my major cases with the head of the department. Nothing was ever said to me, I just stopped receiving assignments and communications regarding the case. On a trip to court another partner instructed that I sit behind the bar while a first year accompanied him to the table.
My other work also disappeared without notice or explanation. I was left with a document review that other associates refused to work on. Other second-year associates in the department were litigating preliminary injunctions, drafting pleadings, defending depositions and communicating with clients. I got no such opportunities. Whenever I asked why I was taken off my cases, I was told to be grateful. Or was given no answer at all. One partner said, “If you’re not planning on sticking around after the pregnancy, you should leave now, because the partners are upset and you’ll lose valuable references.” The words cut, and I didn’t know how to respond.
It doesn't surprise me that a large firm might fail to treat a female associate like a human being. Treating any associate like a human being seems to pose an insurmountable challenge for the big firms. I worked for a large firm before attending law school, and notwithstanding the fact that many partners were excellent attorneys and fine human beings, the firm as a whole was completely tone deaf on matters of effective personnel management. The willful cluelessness of my law firm interviewers during my second year is what originally got me interested in applying for a federal clerkship; I figured that any fate was preferable to being a first-year associate—no matter what the pay differential might be.
Side Note to Law Firms:
In the age of self-publication (i.e., blogging), it would require little effort to document the sheer mindlessness of the law firm interview experience—in an entirely anonymous fashion. And there is little reason not to name names, not just firm names but the names of those individuals involved. (The stories I could tell.) Truth is generally a defense to libel. Perhaps, firms should rethink who they send to represent the organization. At a minimum, sending folks who hit on the female interviewees—something that multiple others assured me occurred more than once during the course of second-year interviews—probably ought to be discontinued.
Ms. Morality, I think, nicely sums up to impossible position that women occupy in the professional workforce. I can understand why male co-workers might grimace at any perceived "special treatment" afforded to female attorneys. And, as a practical matter, it does seem improbable that many women can carry a full associate workload and simultaneously successfully carry their responsibilities as new mothers. (Law firms are certainly skeptical in this regard. Several female law students related to me that their marital status and plans to have children were frequent topics of interest during interviews.) But presumably these same professional males, often increasingly married to professional women, want to enjoy the benefits of family life without necessarily consigning their wives to involuntary domesticity too.
I do not know how to reconcile the competing tensions involved here. But a nice start might be to (a) lower the oppressive billable hours requirements that associates are currently subject to, and (b) lower the ridiculously inflated starting salaries that, in part, are used to justify the oppressive hours imposed on new attorneys. If more reasonable hours and salaries were part of the bargain for all associates, then it would not be nearly as difficult to be flexible with new mothers.
I have begun to notice that I am more and more frequently being included on very short lists of blawgs, listed with blawgs that inspired me to set up my own shingle on the Internet. I'm not sure that I have done anything to deserve such esteem, but whatever it is that I have done, I will endeavor to keep doing it.
Thanks also to Collabowrite for linking to my previous commentary on the ethical issues of blawgging and blogging by federal law clerks.
Professor Marston employs remarks made Justice Scalia in an attempt to discredit the notion that there is anything anti-Catholic about the opposition to Pryor’s nomination:
Is Scalia "anti-catholic"? In a speech at Georgetown last year that I attended, Justice Scalia said that if he thought that it was against his Catholic beliefs to support the death penalty, then the only honorable course would be to resign from the bench. This statement elicited a round of criticism of Scalia's understanding of Catholicism. This is predictable given the contentiousness of the issue and the mutually incompatible stances that self-professed Catholics take on the question of capital punishment.Again, Scalia's position is that all catholics who believe that the death penalty is incompatible with their faith—as they understand it—shouldn't be on the bench. I realize that there is a difference between saying that a certain belief should cause someone to resign from the bench and saying that a certain belief could be a valid criteria for judicial selection, but I'm not sure that the difference is all that significant.
I do not think that this characterization does Scalia’s position any justice, however. Scalia wrote a piece in First Things back in May of 2002 that clarified when he thought a Catholic who accepted the Church’s supposed anti-death penalty teaching ought to resign:
I pause here to emphasize the point that in my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic. (You can see why the “living Constitution” has such attraction for us judges.)
Antonin Scalia, God’s Justice and Ours, First Things, May 2002, at 17-21.
In other words, Scalia does not think that sincere practicing Catholics are unfit for the bench. He merely thinks that such Catholics cannot let their private moral views serve as a substitute for the Constitution. Judges may not abrogate laws on the basis of their religious beliefs; they must subordinate their beliefs to the law. Those who cannot bring themselves to abide by this principle must resign. The nub of Scalia’s argument appears to be the rather non-controversial observation that this is a nation of laws and not of men.
Professor Marston believes that Pryor is not capable of subordinating his personal beliefs while on the bench, and that it is this view among Democrats that has led them to oppose Pryor’s nomination:
If you believe that abortion is murder, that there is a God who will punish murderers, that U.S. law permits abortion, that U.S. law binds judges, that judges must permit abortion in order to "follow the law," and thus that judges are morally co-responsible for abortion, then you should not sit on the federal bench. If Pryor really wants to be a judge, one of those things has to give. It is entirely appropriate for Democrats to believe that one of them will give—namely, that Pryor's professed ability to "follow the law" will prove to have been an overstatement. The interesting thing is that the Democratic position actually takes Pryor’s religious commitments seriously: if Pryor really holds the beliefs on abortion that he says he holds, and if he is really a pious, anti-abortion Catholic, then he would have to be sophistic, hair-splitting, or lack integrity in order to serve on the federal bench.As with Scalia’s views, I am not certain that Professor Marston has characterized Pryor’s opinions on this matter in the most accurate fashion. Whatever the case may be, I am flummoxed by the notion that Democrats on the Senate Judiciary Committee are particularly concerned with the rule of law. As related by Timothy Sandefur:None of this is to say you can't be an anti-abortionist judge. You just have to take a different view of the judicial responsibility to "follow the law," or a different view of what "following the law" means—different from Pryor's apparent view—in order to be one.
When President Carter appointed Judge Pregerson to the bench, [he] was asked whether he would follow his conscience or the law, if the two came into conflict. He replied, “I would follow my conscience.” (See John Johnson, Judge Harry Pregerson, Choosing between Law And His Conscience, Los Angeles Times, May 3, 1992 at B5.) Sure enough, in 1992, when California tried to execute Robert Alton Harris, Pregerson issued a stay of execution—the fourth such stay entered that night. The Supreme Court finally had enough of Pregerson, and specifically ordered that “no further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this Court.” Vasquez v. Harris, 503 U.S. 1000 (1992). This was quite unprecedented. (See further Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155, 188-92).
Not only was Pregerson confirmed, Democrats seem not to have questioned whether he should remain on the bench in the wake of the Harris matter. And this was hardly the last act of judicial rebellion by Judge Pregerson in the name of conscience.
So my question is this: if Democrats are, in fact, acting out of principle in the manner suggested by Professor Marston, why is it that their “principle” only seems to compel them shoot down judicial nominees put forward by the other party? From my vantage point this looks more like politics than principle.
UPDATE I:
Professor Marston writes to clarify his views on the matter, and offers this bit:
The choice for the judicial role (and against what is perceived to be the moral evil) is a choice that is bound to be psychologically burdensome, however, and it is one that a devout person might feel some regret over at some point in his or her career. And I think that we are justified in questioning the moral integrity of someone who is willing to subordinate (avowedly) deeply held religious beliefs to some concept of the judicial role for the purposes of maintaining this particular secular government. This world—and its courts and judges—will pass away, but you've got to live with God for eternity.
Although I am not inclined to generally accept the criticism that opposition to Pryor amounts to opposition to any sincere Catholic, I think that Professor Marston's clarification verges on such a position, because Marston's view transforms the religious beliefs of judicial nominees into a test of their integrity—where willingness to subordinate their own private beliefs to the rule of law is viewed as a vice. In practice, I think that Marston's thesis is utterly unworkable. By his standards, no one who possesses a strong moral conviction contra the death penalty is fit to serve on the bench given the present state of the law. Notwithstanding my many disagreements with the jurisprudence of erstwhile Justice Brennan, I thought he was eminently qualified for the bench.
I think the willingness to follow the law in the face of one's own moral misgivings is a virtue, not a vice. It does not signal a lack of integrity, so much as intellectual and moral modesty. These forms of modesty are not just virtues really, but rather prerequisites. They are, in some measure, what stands between us and government by Platonic guardians.
UPDATE II:
Mike at Begging to Differ is not having any of this business, insisting that there are very good reasons for opposing the Pryor nomination on the merits. Meanwhile, Ken Lammers is standing by his judgment that practicing Catholics need not apply where federal judgeships are concerned.
In his column urging his fellow atheists to unite under the more attrative name of Brights, Richard Dawkins offered an example of how a bright might explain his world view to the uninitiated:A bright is a person whose world view is free of supernatural and mystical elements. The ethics and actions of a bright are based on a naturalistic world view.Mr. Dawkins is mistaken here, however, as there are no ethics in naturalism. Naturalism is an acceptance of what is, and ethics is the domain of what should be. There is no way to bridge the is/ought gap without referencing an extra-natural source. If a Bright accepts moral absolutes, such as "it is wrong to kill Jews for being Jewish," he does so by faith. Naturalism cannot take him there. It cannot show him that it is wrong to kill Jews for being Jewish.
This sounds an awful lot like the position of adherents of natural law with reference to legal positivism.
Although it is a law school verity, I am somewhat reluctant to unqualifiedly embrace the premise that an ought can never be derived from an is. Much of Burke’s horror at the French Revolution was premised on its unthinking destruction of venerable practices and institutions. See generally Edmund Burke, Reflections on the Revolution in France (1790). Burke did not abjure reform, but thought that it ought to be enacted cautiously, deliberately, with due respect for tradition. Although this is not quite the assertion of an ought from an is, the notion that longstanding sociopolitical arrangements recommend themselves somewhat by sheer virtue of their longevity comes close to the sentiment. Burke’s circumspect approach to change suggests that the present order at least deserves the benefit of a doubt and amounts to a presumption that what is says something about what ought to be.
Of course, there are some very real limits to such a presumption. The institution of slavery enjoyed a substantial historical pedigree. Yet few today would argue that its lengthy existence is an argument in its favor.
I take it that Evans is contending that (a) arguments contra genocide, like arguments against slavery, must ultimately rest on some appeal to truths that exist separate and apart from ourselves, something apart from man-made enactments; and (b) positivistic systems of right and wrong are not ethics in some sense. Both contentions leave me a bit perplexed. What of utilitarianism? See John Stuart Mill, Utilitarianism (1863). Is not utilitarianism the essence of Martin Niemoeller’s oft-quoted rationale for resisting the Nazis?
In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.
Bartlett’s Familiar Quotations 684 (John Bartlett & Justin Kaplan eds., Little, Brown & Co., 16th ed. 1992). What is it about such utilitarian considerations that Evans believes disqualifies them from constituting a moral philosophy?
Other Commentary:
Timothy Sandefur, much at variance from my utilitarian approach, argues that, “an ethics of reason is, indeed, possible.” I find the argument that Sandefur cites for this proposition to be somewhat inscrutable, however. Consider, for example, this bit from Ayn Rand:
My morality, the morality of reason, is contained in a single axiom: existence exists—and in a single choice: to live. The rest proceeds from these. To live, man must hold three things as the ruling values of his life: Reason—Purpose—Self-esteem.
If you can make much of this quote or the essay on objectivist ethics that follows, then you are a better man than I. Sandefur himself is more clear, but, in the end, Sandefur’s disquisition on reason qua ethics sounds much like Rene Descartes’s view that mathematical truths are innate to mankind and need only be unlocked from the prison of the human mind. Sandefur writes:
Human freedom can indeed be deduced from human thought; it is a self-evident truth. All human beings are equally human beings; they all possess the quality (rationality) which makes them human. That quality is incompatible with coercion, and, more importantly, that equality means that no human being is naturally entitled to dominate over other human beings. []At the very least, one who claims that right must prove his assertion that he has that right. . . .
Like all versions of natural law, I find this one unsatisfying for the reason specified by Ely. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50 (1980) (“The idea is a discredited one . . . and for a good reason. ‘[A]ll theories of natural law have a singular vagueness which is both an advantage and disadvantage in the application’ . . . The advantage . . . is that you can invoke natural law to support anything . . . [t]he disadvantage is that everybody understands that.”).
Will Baude on the other hand views all moral claims as relative or arbitrary:
When I say "such and such is (morally) wrong," I don't mean to be attributing an empirical quality to it, like when I say "such and such is French." I also don't mean to be defining such and such or wrongness, as when I say "a bachelor is an unmarried man." Because of this, moral statements occupy an unusual realm. Sometimes, when people say "Such and such is wrong," they mean "such and such is contrary to the moral authority to which I subscribe." This might translate as "such and such is against the teachings of the bible as I understand them," or "such and such is against the teachings of John Stuart Mill as I understand them," or "such and such is against the teachings of my great aunt Kelly, as I understand them." Very well. But I don't particularly mean any of those things when I use moral phrases. There's nothing wrong with importing arbitrary premises into ones ethics, but one should be clear that that's what one's doing.* * * Thus, when I say Slavery is wrong, I'm implicitly saying "It is my personal feeling that slavery is wrong." I couldn't mean anything else; there's no neutral test or definition for determining a thing's wrongness, so wrongness must be based on a personal assessment, and it's incoherent to say "Slavery is wrong but I don't think so," for all of the reasons Wittgenstein describes. So slavery is wrong because it fills me with moral disgust. . . .
I also find Baude’s position to be untenable. Baude would have us believe that ethics, or morality, is a matter of mere opinion. Baude says tomāto; Sandefur says tomâto.
Professor Leiter once used ice cream as a vehicle for explaining this theory during my law school days. According to Baude's theory, moral propositions are like opinions on ice cream. Baude likes vanilla. Sandefur likes chocolate. Each marshals arguments for why one is better than the other. Baude cites the crispness, the refreshing quality of vanilla; Sandefur alludes to the comparative richness and creaminess of chocolate. Even if one structures these contentions like rational arguments, they are not. They are irrefutable and irrational feelings. Moral inclinations, like preferences in ice cream flavors, are matters of taste.
This argument is not altogether without appeal. However, it is has its limits. Let’s take a more extreme example. Let us suppose that Baude asserts the virtues of vanilla, Sandefur sings the praises of chocolate, and I trumpet the taste of feces. No, you didn’t read that wrong. Suppose solely for purposes of this very hypothetical scenario that yours truly is a coprophiliac. Is my preference equal to those of Baude and Sandefur? The mind bridles at such an assertion does it not? Can we truly say that there is no real difference between these three assertions? Doesn’t such a highly counterintuitive proposition require some sort of overriding rationale? That is, when a contention runs afoul of our instincts, much as when a reform runs counter to received custom, isn’t the burden of explanation that much heavier? I do not think that Baude has carried this burden.
POSTSCRIPT I:
Both Baude and Sandefur have additional commentary on this subject that is well worth reading. See their respective posts here and here.
POSTSCRIPT II:
I'm not sure whether Timothy Sandefur is unhinged or inspired, but he is certainly on a roll. His Ever-Readable Bloggificence has continued musings on this topic here, here, and here.
POSTSCRIPT III:
Professor Solum has weighed in with one of his characteristically lengthy and thoughtful posts. In particular, Solum notes the rather limited nature of Hume's original distinction between is and ought, and further notes that "Hume's is/ought argument is no longer taken as a settled point in metaethics."
POSTSCRIPT IV:
Professor Solum continues to speak ex cathedra on this issue. He has two more masterful posts here and here. The second of these posts contains numerous links to the observations of others. In addition, Solum helpfully points out a symposium on Hume and relays the thoughts of John Bogart on Hume as well. In yet another, Professor Solum directs readers to Brian Weatherson's remarks. In short, Legal Theory Blog is the place for one-stop reading on metaethics.
I must confess that, having read the thoughts of numerous others on this topic, I feel compelled to make a tactical withdrawal from this debate. As the great moral philosopher Harry Callahan once observed, "A man has got to know his limitations." And it's clear that I am a bit out of my depth, so I am just going to wade back into the shallow end of the intellectual pool. The debate is interesting (and terribly important), however. I wish that there was a primer on this field of inquiry.(1) The Morning Papers: These are the blawgs that I read at the first available opportunity each day. They unfailingly keep me informed and entertained.
(2) Other Clerks: Self-explanatory.
(3) Notable Blawgs: These sites are all excellent and are frequently consulted by myself and others. The only thing that really separates these from the first category is the order in which I peruse them.
(4) Recent Additions: These are blogs that have recently come to my attention through their blogrolling of The Curmudgeonly Clerk. I'm not yet familiar enough with these to figure out where they belong yet, if indeed they belong in any of the foregoing categories.
(5) In Memoriam: This category is reserved for fallen comrades. May they rest in peace.
I'm not sure that I am completely satisfied with this arrangement. As with everything on this site, it is subject to further modification at the whim and caprice of yours truly.
George Evanthes has never been hunting.* * * Now that he's living in Las Vegas, he's finally getting his chance to put on his camouflage, grab a rifle and pull the trigger—but what's in his scope may surprise you.
He's hunting naked women.
Men have been traveling from around the world and paying as much as $10,000 to be armed with paintball guns to hunt women wearing only their tennis shoes in the Nevada desert.
* * * This so-called game mixes sexuality with violence, and for some men, that can be a very dangerous combination . . . .
(Link via The LitiGator.)
And the story is not any more edifying in full. Read it for yourself. Ought there to be a law that forbids such enterprises? Presumably, as a commercial endeavor, it falls well outside of any potential protection afforded by Lawrence. But can my sheer moral distaste for this consensual business venture form a valid basis for prohibiting it?
ASIDE:
Speaking of Dennis Miller and moral bottom-feeders, did you happen to catch the former's take on the Jerry Springer campaign? Here's a taste:
Now that's not to say I don't periodically find the "The Jerry Springer Show" intellectually stimulating. Indeed, how many times have I been walking through the parking lot of a laundromat and seen two obese women in halter tops slap fighting and thought, Wow . . . I wonder what the back story is on that?But at this point, Springer would have to hire a team of sherpas to assist him on the long trek back up to the lowest common denominator. . . .
(Link via Pejmanesque.)
UPDATE:
A regular reader who helps keep me honest (and accurate) helpfully informs me that the report discussed above about hunting vixen may be a hoax:
Now, a man has stepped forward to say the story was a hoax designed to get free advertising to sell the videos.* * * There is a possibility that Hunting for Bambi will get shut down by the City of Las Vegas.
* * * In a business license application last month, the company promised not to sell "porno" videos. The licensing department is investigating, and if they decide the videos are pornographic in nature, they could force the company to shut down.
So, it's not quite the story that I thought it was, yet it remains completely reprehensible.
Thanks also to the following folks who blogrolled my humble blawg: Le-Gal, Peccavi, and Three Years of Hell to Become the Devil. Three Years has actually syndicated my blog entries on his site. A link to one of my blog entries also appeared on Juriblog due to its syndication of Net.Law.Blog's posts.
At the rate that I am linking/being linked these days, I am going to have to devise some appropriate manner of organizing my blogroll. Any suggestions?
UPDATE:
Seems that I am not the only one with concerns regarding the regulation of gin.
The Rank column represents U.S. News & World Report's estimation of the law school hierarchy, with asterisked entries reflecting ties. The % Clerks column provides the percentage of the given school's graduating class that clerked for the courts. The Raw # column translates the foregoing percentage into a raw number based on the number of students admitted into the incoming class, with all fractions rounded to the nearest whole number. Obviously, there is some margin or error given that the % Clerks column uses exit numbers, while the Raw # employs exit figures. Nonetheless, the Raw # column likely remains a close approximation.
| Rank | Law School | % Clerks | Raw # |
|---|---|---|---|
| 1 | Yale | 48.4% | 90 |
| 2 | Stanford | 32.7% | 59 |
| 3 | Harvard | 24.0% | 134 |
| 4 | Columbia | 18.5% | 70 |
| 5 | NYU | 15.5% | 66 |
| 6 | Chicago | 29.4% | 57 |
| 7* | Berkeley | 13.6% | 38 |
| 7* | Michigan | 18.0% | 63 |
| 7* | Pennsylvania | 17.5% | 59 |
| 7* | Virginia | 16.7% | 58 |
| 11 | Northwestern | 9.0% | 22 |
| 12 | Duke | 22.1% | 44 |
| 13 | Cornell | 22.1% | 47 |
| 14 | Georgetown | 10.6% | 49 |
| 15 | Texas | 13.3% | 72 |
| 16 | UCLA | 7.4% | 23 |
| 17 | Vanderbilt | 14.3% | 28 |
| 18* | Iowa | 16.2% | 36 |
| 18* | Minnesota | 26.9% | 74 |
| 18* | USC | 8.7% | 18 |
| 18* | Washington & Lee | 27.0% | 37 |
It is interesting to see the wide variation in the percentage of law students who decide to clerk after graduation among the top tier law schools. The fact that nearly half of Yale's (relatively small) class clerks is nigh astounding! I am also surprised that Northwestern and UCLA have such a small comparative percentage of clerks. One wonders what accounts for such phenomena. Doubtless, there are inumerable variables.
That chart also excludes significant data. For example, the data from the BCG Attorney Search Guide regarding percentages of students who clerk after graduation does not distinguish between federal and state clerkships; nor does it differentiate between trial court and appellate clerkships. Given that federal clerkships are (rightly or wrongly) perceived as more prestigious, one wonders what the percentages woud look like if this data were available. The same could be said regarding federal appellate clerkships, which are generally regarded as more prestigious than clerkships in the district courts. One also wonders what percentage of the total judicial clerkships available in the United States are filled by students from the "Top 20," and where the remainder of judicial clerks come from.
I'm also somewhat amazed that of the raw number that clerked from my alma mater after graduation, I know only a handful by name. I guess that I was even more antisocial than I previously reckoned.
If possible, could you stop making paragraph long text links? The reason has to do with the way the blind listen to web pages.Our text-to-speech readers speak the entire text of a link when we encounter it. We go through a page with a down arrow key. Your multiple line link/paragraphs result in our hearing the word "link" followed by the entire text of the paragraph each time we down arrow through any line of the paragraph.
The material is excellent and fun to read, but not if you have to put up with this distortion caused by the speech software.
Request granted.
I wonder if corporate or government sites have linking guidelines in order to render content intelligible/readable via text-to-speech readers. Anyone know if there is any ADA-related law on this front? For that matter, is there a disability law blawg?
. . . When Richard Posner (my former boss, though not in a clerk capacity) spoke on a panel here on the ethics of clerkships, he said he was astonished to learn all the rules they're supposedly required to obey. He asks them not to speak about pending matters and leaves it at that—partially because he's concerned with the spread of ideas, but also because he suspects they won't obey the rules otherwise.
It now appears that those who do not wish to obey the rules (i.e., the Code of Conduct For Judicial Employees) will not lack the means of evading them. Via Invisiblog, those who wish to blog completely anonymously may do so unhindered. The product's website states that:
invisiblog.com lets you publish a weblog using GPG and the Mixmaster anonymous remailer network. You don't ever have to reveal your identity - not even to us. You don't have to trust us, because we'll never know who you are.(Link via Net.Law.Blog; see also William O'Shea, Sharer of Secrets, The Village Voice, July 16-23, 2003.)
So the judiciary and the federal government can impose blogging bans, but it does not appear that they will be able to enforce them. My own take is that federal employees generally ought to comply with whatever rules the government lays down in this area. But, like Judge Posner, I cannot help but think that others will feel differently, particularly given the fact that almost no one considers this a matter of ethics, notwithstanding the phraseology of the Code.
Hooker attempted to file the suit last week, charging the mayor had violated state and federal provisions against providing food and drink to prospective voters. Hooker’s suit attempts to address what he says is an election process that “is corrupt at the core and deprives voters of a ‘free and equal’ . . . election.”
Although doling out foodstuffs may be illegal, and doing so in sufficient quantities might even manage to corrupt the electoral process at the margins, I find it hard to get very worked up about such accusations. The Republic has a venerable tradition of such campaigning. To wit:
When [George Washington] ran for the Virginia House of Burgesses from Fairfax County in 1757, he provided his friends with the 'customary means of winning votes'; namely, 28 gallons of rum, 50 gallons of rum punch, 34 gallons of wine, 46 gallons of beer, and 2 gallons of cider royal. Even in those days this was considered a large campaign expenditure, because there were only 391 voters in his district, for an average outlay of more than a quart and half per person.
George Thayer, Who Shakes the Money Tree? American Campaign Financing Practices From 1789 to the Present 25 (Simon & Schuster, 1973).
And despite this incredible largesse, Washington's only regret was that he had not distributed even more aqua vitae! Richard Brookhiser puts Washington's tactics in context:
In those days, in elections in colonial Virginia, the voters expected to be treated to drinks by the candidate. This was technically illegal, but it was universal. Everyone did it; voters expected their drinks on Election Day because it was like a holiday. Everyone would go to the polling place. It was a daylong affair. You would cast your vote in public, and you expected your drink. Washington could not be at the hostings on the day of his election but he had a friend who was, in effect, his campaign manager who was there. We have their correspondence, so we know what drinks Washington bought for the voters in his first election. He bought them twenty-eight gallons of rum, fifty gallons of rum punch, thirty-four gallons of wine, forty-six gallons of beer, two gallons of cider. This adds up to 160 gallons of liquor. There were 397 voters. You do the math. That is a little less than two quarts per voter. Washington won. His only complaint to his campaign manager was that he had not spent enough.
And this practice did not pass with the father of our country:
During the presidential campaign of 1840, William Henry Harrison's campaign spin doctors offered free cider to supporters of the Harrison-Tyler ticket. The "free-cider" strategy proved so successful during campaigning that the tactic was employed again at the polls on election day for all that voted for Harrison. It became known as the "cider campaign" and Harrison won the election by a landslide.
Now I ask you, which is the better system: the present one, in which members of the electorate may purchase seats at $x,xxx.xx per plate dinners for the privilege of hearing candidates mouth pablum and twaddle; or the "corruption" of yesteryear, in which candidates were at least gracious enough to provide we, the people, with a refreshing beverage in recompense for tolerating their prattle? Let me get this straight. It's perfectly ethical, legal, and seemly for candidates to promise voters that, once ensconced in office, they will redistribute as much of my money to their voters as they can get their hands on, but if they dare provide some victuals and a lager on the campaign trail a line has been crossed? Aristotle noted the danger of the first possibility, but no where suggested in his writings that one of the defects of democracy was the potential for vote-buying via beer.
And let's face it, if the current primary season is any indication, we are going to need a lot of beer or beer-like beverages. John Adams apparently preferred cider, writing in his diary that he began each day by drinking a tankard of it to put his stomach at ease and alleviate gas. I concur with the estimable Mr. Adams; candidates may feel free to buy me my favorite cider at will. It'll be our little secret.
UPDATE:
Timothy Sandefur has added a wonderful colonial vignette about James Madison and his unfortunate decision to abandon tradition on the campaign trail.
Professor Solum is aghast. But I am confident that this initial impression is nothing that a cider cannot remedy.
[1] A blogger over at The Academy informs the blogosphere that I am mistaken regarding the number of federal law clerk blawgers. Apparently, “Mindse” and one other person at that group blog are finishing up federal clerkships just now.
Mindse makes some very interesting observations. I have made much of the virtue of anonymity for law clerk blawgers. Mindse is less optimistic on this score:
I realized early on that anonymity is a crock, and code names do not work. Smarties will know where you work and who you're talking about right away. This finally dawned on me during one of my law firm interviews. At the end, the interviewer leaned in confidentially and said, "I love your Blog." This stunned me. But, she put two and two together. It's a small legal world, folks.I have to admit that I find that ever so unsettling.
Mindse also offers the following thought:
. . . I think it's very challenging to be an ethically secure federal judicial law clerk blogger. I think discussing matters that can reflect on your employment is no good. I think discussing the size of my ass, my saucy convertible, and (to a certain degree) Supreme Court cases is okay. To answer the most important question: do I think it's okay for people to know that I think Pat Robertson is an a-hole? As long as he's not a party to a matter on my desk, Yes.
I am not so sure. First, might it be possible to compromise the integrity of the judiciary or sully the reputation of the third branch of government in blogging about purely personal matters? Would this be too much? Second, can clerks indiscriminately blog on political issues? While Canon 4A allows for writing on legal matters, Canon 5A counsels that judicial employees “should not make speeches for or publicly endorse or oppose a partisan political organization or candidate,” for example. Thus, there seems to be some limitation on the political remarks of law clerk bloggers. It’s just a matter of determining the proper scope of that limitation.
[2] Speaking of law clerk blawggers, another informs me via e-mail that he blogs anonymously—completely anonymously. That is, this particular clerk runs a blawg but does not acknowledge his status as a judicial employee at all. This particular clerk retroactively sought his judge’s permission to blawg after Canon 4A came to his attention, and the judge signed off on the idea.
A second clerk informs me that she maintains a personal weblog on an anonymous basis, one that is entirely devoid of legal commentary. This latter blogger also owns/moderates a fan-type bulletin board as well.
[3] Others clerks (and judges) are apparently more risk averse. “CY”, a fellow Texan, at Cyoes reveals that at least one law clerk has been discouraged from setting up a blog due to the potential consequences.
Another clerk wrote in, saying that he once ran an anonymous blog during his clerkship on the assumption that it was perfectly kosher to do so, but later abandoned the project. He does not specify the reason for discontinuing the blog. But he indicates that his judge would have likely not approved such an endeavor:
. . . I generally agree with . . . your assumption that few judges would allow their clerks to have blogs if (a) they were asked and (b) they understood what their clerk was talking about. I expect that the response from my own judge, who is [older], would be lack of comprehension and deep suspicion.
[4] Aside from Mindse, see above, many (including me) have made much of the virtues of anonymity. One non-clerk e-mailer goes so far as to assert that:
Blogging truly anonymously should steer you clear of any rule problems. After all, the clerk is not the one doing the writing or speaking in that instance—the rule simply does not apply.
Howard Bashman has rejected this position, and I agree with this assessment.
As a practical matter, one might generally eliminate any possibility of detection by blogging under a cloak of total anonymity. In addition, one also likely precludes damaging the dignity of the court by refraining from self-identification. However, the Canons appear to apply to the conduct of judicial employees whether or not they disclose their status. By my e-mailer’s reasoning, it would be perfectly acceptable to “public[ly] comment on the merits of a pending or impending action” so long as it was done without attribution, notwithstanding Canon 3D. That can’t be right.
[5] Finally, one e-mailer writes in to contest the notion that there is anything impenetrable or mysterious about the “appearance of impropriety” standard articulated in Canon 2:
The "appearance of impropriety" and the "calling into question the integrity of the judiciary" prohibitions are judged under a reasonable-man standard. Thus, the fact that some unreasonably believe that a lawyer who is unabashedly proud of his Southern ancestors is undignified, is irrelevant.
In obvious cases this may be helpful. But in general, I think it is somewhat question-begging to define the “appearance of impropriety” with reference to reasonableness, particularly with regard to political and legal issues—about which reasonable people sometimes heatedly disagree. Consider matters of race or sexuality and their intersection(s) with the law, for example. Debate concerning these issues is often extremely contentious, and people frequently deny that their opponents are sane let alone reasonable. Indeed, such debates often devolve into assessments of the moral shortcomings of one’s adversaries. So what does a reasonable-man standard of ethics mean when reasonableness itself is often a matter of debate?
UPDATE I:
One of the great advantages of electronic communication is its sheer speed, the ability to span great distances in almost no time and at little cost. Notwithstanding these virtues, sometimes e-mail just increases the speed at which we miscommunicate. My correspondent who wrote in regarding the "appearance of impropriety" and other vague ethical standards has written in once again to let me know that just such a misunderstanding is afoot:
My previous e-mail must have been ambigious because I was not "contest[ing] the notion that there is anything impenetrable or mysterious about the “appearance of impropriety” standard articulated in Canon 2. I was merely pointing out that the standard applied by Committee is a reasonable-man standard and thus the fact that some believe that blawging creates an appearance of impropriety is not controlling.But I do agree that reference to reasonableness doesn't really help much, for the reasons you noted. However, that IS the standard, so in response to your question: "So what does a reasonable-man standard of ethics mean when reasonableness itself is often a matter of debate?" It means whatever the Committee "feels" it means if you seek an advisory opinion, although that opinion can be disregarded by a judge, and then it means whatever a clerk or judge believes it means. And reasonable men may disagree with either assessment, as the numerous exchanges you highlight demonstrate. So in the final analysis, other than the outright prohibitions established by the Code (maintaining confidentiality, prohibittng comments on pending cases), the Code leaves it is up to the individual blawger (in consultation with his judge) to determine whether he believes his conduct is unreasonable.
Well, that sounds like a reasonable reading to me.
UPDATE II:
Will Baude relates some very interesting comments made by Judge Posner:
I don't have much to add to the analysis, except to note that different standards satisfy different folks. When Richard Posner (my former boss, though not in a clerk capacity) spoke on a panel here on the ethics of clerkships, he said he was astonished to learn all the rules they're supposedly required to obey. He asks them not to speak about pending matters and leaves it at that—partially because he's concerned with the spread of ideas, but also because he suspects they won't obey the rules otherwise.
I'm not sure whether that reflects poorly on clerks, or the rules, or both. Having recently re-read the Canons, I am not sure what to make of them. I understand the concerns that underlie them. But I am unconvinced that the strictures of Canon 4A are necessary. It seems that Judge Posner is likewise unconvinced. One wonders how many members of the federal judiciary have even read the Code of Conduct For Judicial Employees, and what their opinions would be if they did so. At present, it appears that much more depends upon the individual hiring judge than the provisions of the Code.
And it goes without saying that the increased traffic is partly (and, perhaps, largely) attributable to postive word-of-mouth from distinguished bloggers. Many thanks to the folks who have been linking to me lately: Blawg.Org, Corante On Blogging, How Appealing, Legal Theory Blog, Marstonalia, Memeufacture, and Southern Appeal.
And a special thanks to Mellow-Drama for linking and blogrolling The Curmudgeonly Clerk with the observation that my site is “a good read even despite the fact that he's from Texas.” Yes, it's a backhanded compliment, but I'll take 'em any way I can get 'em. (But what's wrong with the Lone Star State?)
I would also like to thank Publius Minor for privileging my site with a permalink on its blogroll.
In addition to addressing the issue in general terms, I focused on the propriety of blogging by federal law clerks. Given feedback that I have received via e-mail and through responses on other sites, I thought the issue was worth returning to with some additional commentary.
The Rules As a Descriptive Matter
Remarks elsewhere indicate that others have interpreted a post authored by Howard Bashman to be in conflict with my observations. However, having conferred with Mr. Bashman, I believe that he and I are actually in almost total agreement. I think that the confusion arose as a result of my not being as clear as I had hoped in my initial post.
Assuming that the Canon’s grant of permission to “write” extends to virtual writing (i.e., blogging), my reading of Canon 4A of the Code of Conduct For Judicial Employees leads me to believe that blogging by federal law clerks is “ethical” (i.e., permissible) so long as it does not:
(1) “detract from the dignity of the court”;
(2) “interfere with the performance of official duties”;
(3) “adversely reflect on the operation and dignity of the court”; or
(4) violate any of the other provisions of the Code, with likely provisions being Canon 1 (requiring clerks to safeguard “the integrity and independence of the Judiciary”), Canon 2 (admonishing clerks to avoid the appearance of impropriety, lending “the prestige of the office to advance . . . private interests,” and employing “public office for private gain”), Canon 3D (forbidding public comment on pending and impending actions and disclosure of confidential information obtained via one’s official duties), and Canon 5A (regarding “partisan political activity”).
In addition, if one’s blogging “concern[s] the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and other provisions of this code.” In other words, if clerks blog about the law, they must first consult their employer (i.e., the judge for which they work) and obtain permission.
The Rules in Practice
Howard Bashman thinks that the aforesaid preapproval requirement amounts to a prohibition of law clerk blogging as a practical matter inasmuch as most judges are unlikely to grant their clerks carte blanche to hold forth online. That may well be true. Sitemeter informs me that many of the folks viewing my page in the last day or so were doing so via uscourts.gov internet addresses. I would be interested in hearing from any clerks and/or judges as to whether this is true in their particular case. I can be e-mailed here. Your anonymity is assured.
Of course, even if Bashman is mistaken, there are other potential obstacles to blogging. For starters, my assumption that the “write” language of Canon 4A is equally applicable to online writing is possibly mistaken. Denise Howell apparently shares my view that there is no principled basis for distinguishing between traditional and internet mediums. However, at least one e-mailer seems to think that there is at least a colorable basis for distinguishing the two, and suggests that the matter be broached by requesting an advisory opinion from the Committee on Codes of Conduct.
Finally, there is the matter of the other admonitions in Canon 4A and the additional prohibitions in the other Canons. Some, like the guidance to avoid even the appearance of impropriety, are so nebulous as to be mere Rorschach blots. They are akin to Caesar’s desire that his wife not “‘be so much as suspected.’” 2 PLUTARCH’S LIVES 1368 (Thomas North trans. 1941). How does one interpret them, let alone enforce them? Is Southern Appeal’s unabashed admiration for the Old South, as some see it, an affront to the dignity of the court for which that blogger works? Some would undoubtedly regard it as such.
Denise Howell suggests that such provisions be ignored. Howard Bashman advocates that the rules are the rules, and that clerks of all people ought to abide by them. I agree with both sentiments. To the extent that we know what the rules are, I am generally for obeying them. But, in part, I have no idea what the rules are, and neither does anyone else. Almost no case law touches upon the Code of Conduct for Judicial Employees. It is my sense that equivalent provisions regarding impropriety in lawyer codes are invoked either in easy cases (i.e., when the circumstances are obviously egregious) or as a supplement to more specific code violations.
I also highly doubt that the Committee on Codes of Conduct could do much to clarify such vague prohibitions. However, a fellow law clerk blogger points out a prior bit of potentially helpful general guidance offered by the Committee:
I would like to point out this odd selection from the Compendium of Selected Opinions of the Judicial Conference Committee on Codes of Conduct (Part Four of the Compendium contains selections relevant to law clerks culled from the first three parts of the Compendium, which in turn summarize principles derived from the Committee's Advisory Opinions; the selections were excerpted by the Hon. David M. Ebel, a Tenth Circuit judge and member of the committee). Section 4.3(h) (sorry, link unavailable) reads:(h) A law clerk may establish an online discussion forum on legal issues, for compensation and outside of working hours, but should not be identified as a law clerk and should not provide information about cases pending or likely to arise before the court[.]Is a blog an "online discussion forum"? Does the rule have any applicability if the clerk is not compensated? Is there some value in anonymity after all? Oddly, I can't find the actual published advisory opinion from which this principle is derived (maybe it's an unpublished opinion?), which would shed at least a little more light on this subject. Any thoughts?
The non-profit nature of the ruling no doubt stems from Canon 2. Elimination of any monetary profit in conjunction with anonymity, which ensures no possibility of personal gain, appears to resolve the concern that Judge Ebel sought to address. Absent these concerns, the advisory opinion seems to indicate little concern regarding online activities.
Carolyn Elefant seems to counsel non-compliance with even obvious provisions of the Code. At a minimum, she advises that government employees who wish to continue blogging ought to take measures to alter whatever rules are ostensibly prohibitive. The upshot of her post seems to be that she considers any prohibition to be ridiculous. Will Baude’s preliminary assessment of a potential conflict between the Canons and the Free Speech rights of government employees lends some credence to the notion that the rules might be successfully resisted.
Nonetheless, I have my doubts about the wisdom of such resistance—even if the rights are there to be claimed, at least as far as law clerks are concerned. Were the Judicial Conference of the United States to decide that law clerks should under no circumstances blog—even with preapproval from the judge who hired them—I would readily comply. I would not do so out of intellectual agreement, but out of desire to spare my individual employer any public embarrassment. I blog on a quasi-anonymous basis out of prudence, so as to shield my employer from any association with this site. It would hardly do to embroil the court in a controversy regarding the ethical conduct of its clerks.
Personal Blogging Versus Blawging
To my knowledge there are only three law clerks who blog on legal issues at present: Stick Bug Blog, Southern Appeal, and myself. However, there are other law clerks who maintain sites of a more personal nature; Bag and Baggage lists some such "vanity" blogs. See, e.g., Lane McFadden. In addition, a potential third category is occupied by clerks whose sites are not strictly personal, yet also seem to avoid discussions of legal (but not necessarily political) topics. See, e.g., Trivial Pursuits. Different rules appear to apply to each type of blog. Although Canon 4a's other prohibitions (e.g., appearance of impropriety) apply to even sites of a personal nature, the preapproval mandate (i.e., the requirement that clerks obtain their employer's permission) extends solely to those who blog about legal matters. Strangely enough, Will Baude observes that First Amendment law indicates the exact opposite (i.e., the personal sites of government employees are subject to greater regulation than those devoted to matters of public interest like the law). Yet again the rules seem awfully unclear, if not just plain awful. What is one to make of the situation?
Conclusion
Thus far, it seems to me that both blogging and blawging are permissible activities for law clerks. However, both are subject to certain limitations, some of which are indeterminate, perhaps indecipherable. This matter is actually far more complex than I first imagined when I embarked on this venture. Greater clarity would be a boon to all, but I must admit that I lack confidence in the rulemakers. Like many in the blogosphere, I find that many often have no understanding of new technologies. Neither do I for that matter, but at least I recognize my limitations. Further, in-depth consideration is necessary.
Sandefur cuts to the heart of the matter when he observes that the Court has effectively opened the way to judicial dictatorship:
Most shocking is the Court's dismissal of the 2/3 requirement as "mere procedure." Constitutions are written to create procedural rules: requiring search warrants, or "due process of law" are procedural requirements. Such procedures are important because they protect our rights. Sometimes they are inconvenient or frustrating, but they ensure that government follows clear, predictable rules. If courts can erase procedural rules, then why can't it erase the "simple majority" rule as well? Suppose only 49 percent of the legislators vote for a tax increase. Can the Court order the few holdouts to vote for it, because their votes are "in effect denying the public its expectation" of some taxpayer-funded service?
Sandefur also ably notes the cure for this ridiculous decision: the Nevada Constitution's recall election provision pertaining to state supreme court justices.
ADDENDA:
[1] Professor Volokh, who has characterized Guinn as "one of the most appalling judicial decisions I've ever seen," previously blogged this issue at length here. Timothy Sandefur also previously blogged this issue as well.
[2] Professor Solum has a useful round-up of links pertaining to the Guinn case here.
[3] Professor Volokh notes in multiple posts (here, here, here, and here) that the Guinn case is being challenged in federal court.
[4] Professor Marston has articulated a contrary viewpoint. See here and here.
Also, many thanks to Net.Law.Blog and Balasubramania's Mania for blogrolling this site. Both sites are quite excellent.
I’m sad to see this development. Apart from my personal enjoyment of Bill’s site—see permalink in sidebar—I for one see little harm in blogging by federal employees. Federal employees are like everyone else. They have opinions that frequently diverge from the official views of their employers. Yet almost no one is likely to mistake the two when the former publicly speak on any given matter. Many bloggers, like myself, actually include an express disclaimer to avoid any confusion in this regard. Moreover, the curtailment of blogging by those affiliated with the government is more likely to assure that the views of those familiar with and sympathetic to the government are absent than to achieve any other aim.
I am largely ignorant of First Amendment law in this particular area, so I will leave constitutional commentary to better informed sources. (Care to assist, Professor Volokh?) But my gut instinct and minimal knowledge tells me that the government is almost certainly acting well within its rights here, though its power in this area is probably not absolute. See generally Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 1302 et seq. (13th ed. 1997). And the prudential reasons that government and private employers might wish to prohibit blogging by their employees are not entirely lost on me.
Nonetheless, as a particular type of federal employee, I am sensitive to attempts to squelch blogging. As near as I can tell, blogging generally remains perfectly kosher for federal law clerks. Canon 4 of the Code of Conduct For Judicial Employees seems to be the relevant provision:
Canon 4: IN ENGAGING IN OUTSIDE ACTIVITIES, A JUDICIAL EMPLOYEE SHOULD AVOID THE RISK OF CONFLICT WITH OFFICIAL DUTIES, SHOULD AVOID THE APPEARANCE OF IMPROPRIETY, AND SHOULD COMPLY WITH DISCLOSURE REQUIREMENTSA. Outside Activities. A judicial employee’s activities outside of official duties should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves. Subject to the foregoing standards and the other provisions of this code, a judicial employee may engage in such activities as civic, charitable, religious, professional, educational, cultural, avocational, social, fraternal, and recreational activities, and may speak, write, lecture, and teach. If such outside activities concern the law, the legal system, or the administration of justice, the judicial employee should first consult with the appointing authority to determine whether the proposed activities are consistent with the foregoing standards and other provisions of this code.
As blogging is merely a form of self-publication, it would seem to fall under the “write” rubric of Canon 4A. Other Canons that might be relevant in any given situation via Canon 4A’s incorporation language are Canon 1 (“A Judicial Employee Should Uphold the Integrity and Independence of the Judiciary and of the Judicial Employee’s Office”), Canon 2 (“A Judicial Employee Should Avoid Impropriety and the Appearance of Impropriety in All Activities”), Canon 3D (forbidding public comment on pending and impending actions and disclosure of confidential information obtained via one’s official duties), and Canon 5A (“Partisan Political Activity”). But there does not appear to be any general prohibition of blogging. Indeed, the “write” rubric appears to generally permit blogging by judicial employees. At any rate, the last sentence of Canon 4A indicates that any decision to allow or forbid blogging by judicial employees lies with the individual hiring judges.
In general, I have adopted two general protocols for blogging. First, I do not discuss matters related to proceedings in my employer’s court. Secondly, I also adhere to the additional cautionary measure of blogging on a quasi-anonymous basis. Although I have identified the general court with which I am affiliated, I have kept the details quiet so as to insulate my individual employer from any association whatever with this entirely private enterprise. Hopefully, the Judicial Conference of the United States will consider present measures to be sufficient and decline to follow in the steps of the DOJ.
UPDATE I:
Bag and Baggage has also noted this trend and cursorily weighs in by declaring it "officially Not Good." Meanwhile, Tech Law Advisor points to some very interesting commentary by Jerry Lawson. Lawson offers a nuanced perspective, but I think really makes a compelling case for general openness regarding blogging by those affiliated with the government. Those interested in this topic should read his piece first-hand.
UPDATE II:
Before the virtual ink was even dry on my original post, Balasubramania's Mania had already responded with his thoughts on the matter.
UPDATE III:
I also note that Orin Kerr is taking a leave of absence from The Volokh Conspiracy while clerking for Justice Kennedy over the next year. So does Kerr read the Canons differently? Or does Justice Kennedy personally frown upon blogging during clerkships? Or will Kerr just be too darn busy to blog?
As an update within an update . . . Professor Volokh has clarified that it is customary for Supreme Court clerks to refrain from media involvment during the period of their clerkship. He also views this policy as "quite sensible."
UPDATE IV:
Howard Bashman has also indicated some level of unhappiness with this trend, but has also refrained from opining on the merits.
UPDATE V:
Will Baude has posted some helpful commentary on this topic. In particular, he notes that the First Amendment law in this area is subject to a murky balancing test. He also intimates that the truculent proprietor of this site would be an interesting potential litigant in a test case. I don't necessarly disagree, but if I have my druthers . . . .
UPDATE VI:
Howard Bashman has considered the issue of federal law clerks blogging. Bashman lays heavy emphasis on the last sentence of Canon 4A of the Code of Conduct for Judicial Employees, see supra, which admonishes judicial employees to consult with the appointing authority prior to engaging in the activities countenanced by the Canon when they pertain to "the law, the legal system, or the administration of justice." Therefore, law clerks must obtain approval in order engage in activities that their individual employers are expressly authorized to do via Canon 4A of the Code of Conduct For United States Judges. This seems like a straightforward reading of the Canon regarding judicial employees. But I think that it amounts to a preapproval requirement rather than a general disability; Bashman appears to read it as being more akin to the latter. I agree with Mr. Bashman that merely blogging anonymously is not enough to satisfy the Canon.
Setting aside the terms of the rules, which seem rather clear, I think that the policy question is something of a muddle. I can see both sides, but as a general proposition I tend to favor more rather than less speech. Will Baude, see supra Update V, futher muddies the issue by suggesting that the potential constitutional issue is less than straightforward. Of course, what are the chances that federal courts would invalidate provisions of the Code of Coduct for Judicial Employees that would directly curtail the power of judges to supervise their own staffs?
UPDATE VII:
Donald of All Deliberate Speed, who will be beginning a clerkship soon, plans to cease and desist blogging for the duration. He apparently plans to do so on the basis of my remarks regarding anonymity in my original post. To the extent that he is basing this decision on my remarks, I am afraid that I have been unclear. As noted in Update VI, I do not consider blogging anonymously to be suffcient to satisfy Canon 4A's requirements. Contrariwise, I also do not consider anonymity to be required by Canon 4A. My decision to do so is merely an additional prudential measure to ensure that my judge is in no way associated with this website, which is not in any manner indicative of my employer's personal or professional opinions.
No, of course, a constitutional right to summer vacation is not in the literal text of the document or in our shared constitutional tradition. But that's the beauty of substantive due process—the Constitution is what you say it is, no less and no more.
Special thanks to Brett Marston for adding this homely site to his blogroll.
I'm a winner! Winner of Statutory Construction Zone's common law trivia contest, that is. It is probably an unmistakable sign of my geekiness, but I love common law trivia. I'm fairly fond of Statutory Construction Zone as well.
Finally, I'd like to offer a somewhat perplexed acknowledgment of About-Face, who has a non-visible link to this site and many others.
UPDATE I:
Timothy Sandefur, who knows a great deal more than I do regarding the views of Frederick Douglass, has several posts (Part 1, Part 2, Part 3, and Part 4) on this topic and handily demonstrates that Wickham's criticism of Thomas is way off base. Sandefur also does me a favor by correcting an error that I had made in my original post:
. . . I’m afraid the Clerk is quoting the wrong speech. Douglass reused several of his speeches, so the one that the Clerk quotes is similar to the one that Justice Thomas quoted, but the one Justice Thomas quoted was delivered to the Massachusetts Anti-Slavery Society in 1865, and you can read it online at the Library of Congress’ Frederick Douglass page.Let the record stand corrected.
UPDATE II:
Southern Appeal has also deconstructed Wickham's piece at length. His analysis may be viewed here.
I ask my friends who are apologizing for not insisting upon this right [to vote], where can the black man look, in this country, for the assertion of his right, if he may not look to the Massachusetts Anti-Slavery Society? Where under the whole heavens can he look for sympathy, in asserting this right, if he may not look to this platform? Have you lifted us up to a certain height to see that we are men, and then are any disposed to leave us there, without seeing that we are put in possession of all our rights? We look naturally to this platform for the assertion of all our rights, and for this one especially. I understand the anti-slavery societies of this country to be based on two principles,—first, the freedom of the blacks of this country; and, second, the elevation of them. Let me not be misunderstood here. I am not asking for sympathy at the hands of abolitionists, sympathy at the hands of any. I think the American people are disposed often to be generous rather than just. I look over this country at the present time, and I see Educational Societies, Sanitary Commissions, Freedmen's Associations, and the like,—all very good: but in regard to the colored people there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. Gen[eral] Banks was distressed with solicitude as to what he should do with the Negro. Everybody has asked the question, and they learned to ask it early of the abolitionists, "What shall we do with the Negro?" I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature's plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot-box, let him alone, don't disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him a positive injury. Gen. Banks' "preparation" is of a piece with this attempt to prop up the Negro. Let him fall if he cannot stand alone! If the Negro cannot live by the line of eternal justice, so beautifully pictured to you in the illustration used by Mr. Phillips, the fault will not be yours, it will be his who made the Negro, and established that line for his government. Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live. He will work as readily for himself as the white man. A great many delusions have been swept away by this war. One was, that the Negro would not work; he has proved his ability to work. Another was, that the Negro would not fight; that he possessed only the most sheepish attributes of humanity; was a perfect lamb, or an "Uncle Tom;" disposed to take off his coat whenever required, fold his hands, and be whipped by anybody who wanted to whip him. But the war has proved that there is a great deal of human nature in the Negro, and that "he will fight," as Mr. Quincy, our President, said, in earlier days than these, “when there is reasonable probability of his whipping anybody.”Douglass, supra, Part I (emphasis added).
Although Douglass did (correctly) fear the machinations of unreconstructed Southerners in the aftermath of the Civil War, a clearer articulation of what conservatives frequently denominate benign neglect would be hard to come by. Thus, it is difficult to perceive on what basis Wickham might ground his criticism.
Wickam cites Southern resistance to equal treatment of blacks in the wake of the Civil War, Plessy v. Ferguson (1896), and Cumming v. Bd. of Educ. (1899) as examples of why Thomas’s innovation of Douglass is inappropriate and without context. But it is an odd thing to argue that events that post-date the speaker’s remarks provide the relevant context. Indeed, what Wickham appears to be arguing in very cursory fashion is that the general discrimination suffered by blacks notwithstanding the Civil War constitutes a basis for race-conscious remedies (i.e., Wickham assumes that race-conscious remedies may be used to remedy societal discrimination and the effects of past societal discrimination). However, even the Court disowns this position in Grutter. Wickham’s apparent position, in fact, failed to even command a majority in Bakke. See Grutter (discussing Bakke’s holding and Justice Powell’s opinion therein). Therefore, it is Wickham who misunderstands Douglass. Indeed, Wickham owes the Justice an apology, as he did not accuse Thomas of merely being mistaken, but rather charged that Thomas was “dishonest.” I’ll leave it to the readers to determine for themselves whether Wickham’s commentary is the result of calumny or carelessness.
No doubt, Timothy Sandefur has something to say about this given his likely role in Thomas’s use of the Douglass quotation.
“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
USA Today columnist DeWayne Wickham charges Justice Thomas with being “intellectually dishonest,” inasmuch as he considers the Douglass passage to be quoted out of context and inappropriate as a defense of the Thomas’s colorblind Constitution jurisprudence. (Link via How Appealing.) In particular, Wickham complains of words omitted from the excerpt:
So what's missing? The words that were replaced by the second ellipsis that put what Douglass said into proper context. What Douglass said in the closing lines is: ''Let him alone. If you see him on his way to school, let him alone, don't disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot box, let him along, don't disturb him! If you see him going into a work-shop, just let him alone,—your interference is doing him positive injury.''
UPDATE:
Peter Kirsanow, a conservative member of the United States Commission on Civil Rights has an article on National Review Online that observes that Justice Scalia's dissent in Grutter almost seems like a roadmap to future educational preference-related litigation—a roadmap for opponents of preferences, that is. It's almost as if Scalia is asking would-be litigants to revisit Grutter (Link via How Appealing.).
Diversity’s Sunset & Ginsburg’s Concurrence
The majority’s odd view of past and future is also noteworthy. O’Connor looks forward into the future, suggesting that a quarter-century hence the diversity rationale will no longer pass constitutional muster. This statement has the feel of dicta. Beyond the suggestion that, at some point, a race-based remedy must come to and end, it is of little value.
But one wonders why diversity and critical mass will be less important than now at any future date. This sunset language reminds me of the Court’s desegregation and busing cases. Of course, in those cases, the temporal limitation was a function of the fact that specific, proven discriminatory conduct was being remedied. Hence, once the situation was ostensibly rectified, the need for the remedy expired. Diversity, does not, logically speaking, appear subject to the same constraints. So is the majority mistaken in deciding that diversity must also expire as a justification for racial discrimination, or is the Court tipping its hand to the true nature of the diversity rationale (i.e., a general remedy for societal discrimination by another name).
Justice Ginsburg’s concurrence, joined by Breyer, which emphasizes the historical conditions that avowedly require consideration of race in admissions, indicates that at least two justices might well view the diversity rationale in terms of remedying generalized historical inequities. Ginsburg also seeks to clarify the majority’s 25-year sunset language, arguing that it is merely aspirational in character. Ginsburg’s reading is, no doubt, correct, but one has little reason to be so optimistic as long as the Court continues to hand down decisions like Grutter.
Ginsburg emphasizes the unhappy racial history of the nation in upholding the Law School’s admissions program, but appears unaware of the Court’s mixed record in fostering racial reconciliation. Grutter effectively holds that the nation’s universities may integrate their student bodies, even if they must racially discriminate to do so. Ginsburg believes that this is necessary, because, among other things, the state of American secondary education:
As to public education, data for the years 2000-2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.See Grutter (Ginsburg, J., concurring) (internal citations omitted).
Of course, what Ginsburg does not acknowledge is that the Court’s own busing decisions are more responsible for this fact of modern American life than any other consideration. See generally Lino Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Cornell 1976). Ginsburg’s view of the past is as muddy as O’Connor’s view of the future.
Less Than Strict Scrutiny?
The majority’s actual embrace of Bakke’s perceived central holding (i.e., Powell’s diversity rationale) is singularly unsatisfying. I had expected an interesting discussion of the decisions amongst the lower appellate courts (e.g., Hopwood), but the Court does not deign to distinguish or discard. Instead, the Court principally defers to the views of one of the litigants, either misapplying the strict scrutiny standard or implicitly repudiating strict scrutiny as a standard of review. Any such repudiation would be limited to the educational context, given the attenuated First Amendment (academic freedom) rationale cited in support of the Court’s diversity holding. But the majority insists that it is applying strict scrutiny, appearances notwithstanding.
Whatever the case, the majority’s muddled handling of this particular issue does not reflect well in the intellectual integrity (or honesty) of their opinion. Surely the bright lights in the majority are themselves aware of this peculiarity of the majority opinion. But see Grutter (O’Connor, J., for the majority) (“Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university.”).
The Basis For and Benefits of Diversity
The purported benefits of diversity asserted by the Law School are also problematic. Professor Richard Lempert justified the race-conscious admissions program on the basis that underrepresented minorities “may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination.” The exclusion of those of Asian ancestry and Jews from the preferred entrants was justified on that basis that those minority groups are already sufficiently represented.
This rationale is problematic for a couple of reasons. Setting aside the majority’s deference and the Law School’s self-serving representation, it is not clear that the Law School engages in any individuated examination of a minority applicant’s background to ensure that even the admitted underrepresented minority students possess this supposedly salutary background and viewpoint. That is, the Law School uses, and the majority condones, the employment of race as a proxy for worldview. This strikes me as an empirical claim that is subject to proof or disproof. Unfortunately, the majority is so deferential in the application of its strict scrutiny as to obviate any such analysis. Indeed, the majority is so deferential to the Law School’s judgment that the Court seems not to have even pursued the Law School’s proffered reasons to their logical ends.
It is also not clear why the Law School’s proposed demographic subgroupings are themselves logical. For example, why does it make any kind of sense to consider “Asians” together as a unified group? This category might encompass peoples ranging from the Turks to the Japanese (and everywhere in between). Are blacks descended from former slaves forcibly brought to the New World and more recent West African immigrants to be treated alike solely on the basis of their skin color and the perceived values that coincide with their melanin content? The majority opinion evinces no awareness of such concerns or the crudity of race and ethnicity as a proxy for viewpoint.
Perhaps, sensing the inadequacy of Lempert’s views as a justification, the Court instead emphasized the viewpoint of another of the Law School’s experts. Compare Kent Syverud’s explanation with Lempert’s. Syverud argued that, “when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no ‘minority viewpoint’ but rather a variety of viewpoints among minority students.” It is difficult to square this contention with Lempert’s proffered rationale supra. On the one hand the presence of minorities is asserted to be an educational boon due to their unique perspective; on the other, we are told that the virtue of a critical mass of minority students is the realization that not all members of minorities march in lockstep.
Frankly, it is difficult not to be offended by the obtuseness and pretense of Syverud’s would-be justification. By the time that students reach law school, they are generally at least 22 years of age. Is it really Syverud’s contention that at that age, having already been subjected to four years of diversity-related cheerleading at the undergraduate level, that matriculating law students remain unaware of differences between and among minority groups? Isn’t Syverud’s baseline assumption really that non-minorities (i.e., whites) are ignorant and/or racist? And, if so, does his proposed rational run afoul of the more general constitutional prohibition against racially remedies that seek to address societal discrimination and prejudice?
Even assuming arguendo that Syverud’s students are as benighted as he suggests, might it not occur to them on their own, at some point during their three years of legal education, that all blacks must not think alike simply on the basis of their exposure to the widely divergent views of Justices Marshall and Thomas? The majority thinks not. See Grutter (O’Connor, J., writing for the majority) concluding that the Law School cannot properly fulfill its mission “with only token numbers of minority students”).
The Numbers Game
Justice O’Connor, writing for the majority, okays the Law School’s “critical mass” rationale for factoring race into the admissions process. Race was taken into account “to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body” (emphasis added). “‘Critical mass’” signifies “‘meaningful numbers’ or ‘meaningful representation’” such that the number of minority admittees “encourages underrepresented minority students to participate in the classroom and not feel isolated.”
How this generalized sense does not amount to a de facto quota is left unanswered. Chief Justice Rehnquist’s dissent indicates that this concern may be unanswerable in any intellectually honest fashion. The majority’s apparent rejoinder on this point is that, because the Law School sought to achieve a “critical mass” not for the sake of numbers but for the educational benefits alleged to flow from these numbers, that the undeniable numerical nature of minority admissions is constitutional.
Race is averred to be among one of many “‘soft variables’” considered on an individuated basis. The majority apparently accepts this argument. But the Law School’s own expert, Dr. Stephen Raudenbush, contradicts any such contention.
In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic,’” negative effect on underrepresented minority admissions. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent.Grutter (internal citations omitted)
Absent the majority’s extreme deference, it is difficult to conceive how this fact, in conjunction with the Law School’s avowed desire to achieve a “critical mass” of minority students could fail to send up the jurisprudential equivalent of red flares. It is pretty obvious that a numbers game is being played here. As a result, O’Connor’s concurrence in Gratz embraces a rather rigid and indefensible formalism.
The majority attempts to avoid the appearance of a numbers game by distinguishing between goals and quotas. To the extent that this distinction is tenable at all—a proposition that I very much doubt (viz. isn’t any goal that per force suppresses the enrollment of non-favored demographics a quota by the majority’s own definition?)—the factual record documented in the majority opinion and in Rehnquist’s dissent does not lend itself to such parsing. The alleged non-quota nature and individual consideration of applicants is sufficient to render the Law School’s scheme constitutional in the eyes of the majority.
The majority also wishes to assure readers that all minority students “admitted by the Law School have been deemed qualified.” Of course, this sort of self-serving testimony is of little value in the absence of an objective comparison of the applicants’ respective qualifications. Recall the testimony, discussed supra of the Law School’s own expert, Dr. Raudenbush. The majority’s statement in this regard is also something of a non-sequitur. Qualification in the abstract is not the issue. Relative qualifications are. The relevant comparison is between minority candidates and non-minority candidates. Having decided that discriminating between the two in admissions is permissible, surely the majority does not blanch from examining the reality of such discrimination.
First, Justice Stevens wrote an opinion concurring in part and dissenting in part in Regents of Univ. of Calif. V. Bakke, 438 U.S. 265 (1978). Although Stevens wrote that the general use of race in admissions was unripe as an issue in Bakke and declined to address the practice’s constitutionality, id. at 411-12, Stevens et al. regarded The University of California’s admissions plan as violative of the terms of Title VI of the Civil Rights Act of 1964. Id. at 414-20. Interestingly, Stevens does not write separately in Grutter to explain why it differs from Bakke or how his views have changed since the latter case. (You’ll recall that Stevens wrote solely with reference to standing in Gratz.) Justice O’Connor’s majority opinion notes that the Petitioner raised the Title VI argument in Grutter.
Second, Justice Kennedy’s dissent in Grutter hints that this decision might have been 6-3 had the majority rigorously applied strict scrutiny and found the Law School’s admissions program passed muster. That is, Kennedy would uphold Powell’s diversity rationale. See Grutter (Kennedy, J., dissenting) (“The opinion by Justice Powell, in my view, states the correct rule for resolving this case.”)