With his SCOTUS list, President Trump says the quiet part a little louder

When President Trump announced his shortlist for the Supreme Court during the 2016 campaign, it was a clear signal to conservatives to get on his bandwagon, filled as it was with Federalist Society-approved names. Now that his re-election prospects are sketchy, Trump has released a new shortlist. It worked the first time, after all.

The interesting thing about the 2016 list is that it still had the quality of being -- for Trump -- subtle. Unless you pay enough attention to the endless ideological maneuverings to control the courts, the names on the list (and its FedSoc provenance) might not've meant much to you. But if you were aware of those things, invested in those fights, and conservative, the list was a good reason to think Trump might not be a squish on issues important to you.

This time around, though, Trump is taking no chances with subtlety when it comes to motivating the base. It's one reason he's even more plainly appealing to white racism during this campaign. But the boldface names on his new SCOTUS list -- Ted Cruz, Josh Hawley -- are meant to get the attention of the most casual conservative. They're known culture warriors who appear regularly on cable news, not the coy legal eggheads known to insiders. Trump is fairly screaming that he'll appoint anti-abortion judges this time around. The man is known for saying the quiet parts out loud. The closer the election gets, it seems, it's saying the out loud parts even louder than he once did.

This is why "empathy" on the Supreme Court is a good thing

A few years back, President Obama earned sneers from conservatives when he said "empathy" is a quality he looks for in making judicial nominations. I thought about that today when reading about Justice Sotomayor's dissent in a police evidence case.

Essentially, the court ruled that evidence can sometimes be used against defendants even if that evidence was gathered by police illegally. Sotomayor was cranky. From TPM:

She was joined in most of her dissent by Justice Ruth Bader Ginsburg (who also joined a dissent penned by Justice Elena Kagen). But, in the final portion of Sotomayor's dissent, she said she was "[w]riting only for myself, and drawing on my professional experiences." There, she expounded upon the "severe consequences" the unlawful stops in question have, including being "degrading" and causing "indignity." 

"Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more," Sotomayor, the first Latina justice on the Supreme Court, said. "This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact." 

In this case, "empathy" means having a visceral understanding that some people — minorities — are targeted for stops that have "pretextual justification after the fact" more than others. "Empathy" means knowing that outside the ivory-tower domain of an appellate courtroom, the law falls on different people in disproportionate and burdensome ways. "Empathy" seeks, then, to hold the law not just to the letter of the Constitution but the spirit. Justice Sotomayor is an asset to the court.

George Will wants freedom of association ... for conservatives

There's a lot to unpack in George Will's column today about Vanderbilt University's decision to withhold recognition from the Christian Legal Society, a campus group that (naturally, given its orientation) wants to ensure that only Christians can be in its leadership.

I think Will goes wrong by starting to compare apples to oranges. Will must be quoted at length:

In 1995, the Supreme Court upheld the right of the private group that organized Boston’s St. Patrick’s Day parade to bar participation by a group of Irish American gays, lesbians and bisexuals eager to express pride in their sexual orientations. The court said the parade was an expressive event, so the First Amendment protected it from being compelled by state anti-discrimination law to transmit an ideological message its organizers did not wish to express.

In 2000, the court overturned the New Jersey Supreme Court’s ruling that the state law forbidding discrimination on the basis of sexual orientation required the Boy Scouts to accept a gay scoutmaster. The Scouts’ First Amendment right of “expressive association” trumped New Jersey’s law.

Unfortunately, in 2010 the court held, 5 to 4, that a public law school in California did not abridge First Amendment rights when it denied the privileges associated with official recognition to just one student group — the Christian Legal Society chapter, because it limited voting membership and leadership positions to Christians who disavow “sexual conduct outside of marriage between a man and a woman.”

It seems to me that these three cases, though, are entirely consistent. The first two uphold the rights of private organizations to choose their members and their message. The third doesn't change that! The Christian Legal Society still has a right to exist in the California case—it just doesn't have the right to use the college's funds and facilities if it's going to exclude some students from membership. As Justice Ginsburg said in writing for the majority on that case: "In requiring CLS—in com­mon with all other student organizations—to choose be­tween welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress
constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy."

If anything, Vanderbilt has a stronger defense of its policy to deny the CLS the use of its funds and facilities: Unlike Hastings, it's a private university! Surely it, like the parade organizers and the Boy Scounts, has the right to chose its own expressive associations as well! But Will smells the smoke of pernicious progressive plotting:

Although Vanderbilt is a private institution, its policy is congruent with “progressive” public policy, under which society shall be made to progress up from a multiplicity of viewpoints to a government-supervised harmony. Vanderbilt’s policy, formulated in the name of enlarging rights, is another skirmish in the progressives’ struggle to deny more and more social entities the right to deviate from government-promoted homogeneity of belief. Such compulsory conformity is, of course, enforced in the name of diversity.

Shorter Will: Freedom of association is important ... for conservatives. If a private entity wants to exclude gays, he will defend to the death its right to do so. If a private entity wants to exclude a club that excludes gays, though, it's the death of freedom. Such a one-way conception of liberty isn't really liberty at all, is it? The shape of Will's argument is—as Justice Ginsburg suggested—seeking a privileged position for social conservatives under the rubric of seeking parity. That's usually what conservative groups accuse gay rights activists of doing!

It's worth mentioning that Will's column appears the same week as news emerges about Shorter University, a Christian college in Georgia that is now requiring its employees to abstain from pre- and extra-marital sex, including homosexual sex. I don't agree with Shorter University's theology—but it is a private university which takes no state or federal money. So even though I won't be sending my son there, I will defend the college's right to choose its associations. George Will would too, I imagine. He just doesn't apply the same standards in the opposite direction. Which means he's less attached to the liberty he claims to espouse than he is to opposing gays and liberals.

Walter Phillips Wants Philly Courts To Violate The Constitution

Philly's court system is a mess. Lots of people get charged, but not so many ever make to a plea or a trial: They go underground instead. In today's Philadelphia Inquirer, former prosecutor Walter Phillips provides the solution: Trials in absentia!

One way the city's Common Pleas judges could address this problem - without any expense - would be to take the unified stance that trials will go on even in the absence of such defendants.

The trouble is that many Philadelphia judges just won't call the bluff of absent defendants and follow the law that allows trials to go forward in their absence. A variety of reasons have been advanced for their timid stance: fear of reversal, the awkwardness of forcing defense attorneys to make fundamental decisions without consulting their clients, and just plain lethargy.

This would seem to violate Constitutional guarantees that a defendant can confront the evidence and witnesses against them. But Phillips waves those concerns away, suggesting that there's plenty of Supreme Court precedents suggesting such trials can take place anyway.

And sure, the topic has been addressed by the Supreme Court, but the takeaway is that conducting a trial without the defendant present can take place only in limited circumstances: If a defendant is disruptive during the proceedings, for example, or skips town after the trial has begun.

But widespread, systemic absentia trials for tens of thousands of people? No. Here's why: Those rules allow for the trial to proceed only if a defendant is present at the very beginning of a trial.

There are, I'm sure, exceptions to what I'm about to say. But the problem with absentee defendants in Philly isn't that they show up for the first day -- or first hour -- of their trial, then flee the scene. It's that they don't show up at all.

Philly courts are a real mess, yes. And nobody likes to see justice delayed or denied because some two-bit punk hit the road. But violating the Constitution -- despite Walter Phillips' protestations -- isn't really the way to proceed.

Innocence, justice, and Antonin Scalia: Why I'm rooting for Elena Kagan

Radley Balko notes that the Ninth Circuit Court of Appeals is refusing to hear the habeas corpus petition of a man who has established his innocence in the sex crimes for which he was convicted. Why the rejection? Because the dude filed his petition after the deadline.

Balko:

By the panel’s reckoning, adherence to an arbitrary deadline created by legislators is a higher value than not continuing to imprison people we know to be innocent.

The circuit court's decision is horrifying -- but its logic isn't that surprising. Why? Because that's the exact same logic that Supreme Court Justice Antonin Scalia has used. Remember this?

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable.

And this is why I'd rather see Elena Kagan, Sonia Sotomayor or any other "empathetic" judge on the court than some Scalia wannabes who are faithful to a very narrow interpretation of the Constitution. Fidelity to the law is important; fidelity to justice, while perhaps more abstract, is also important. Antonin Scalia's jurisprudence is one that easily lets people be executed or rot in jail for crimes they didn't commit. And Republicans regularly name him the justice they love most. Horrifying.

Ben and Joel Podcast: Lyle Denniston and the Supreme Court

Lyle Denniston has been covering the Supreme Court for a half-century -- first as a newspaperman in Baltimore and Boston, and now for the invaluable SCOTUSblog. He joins the podcast this week to give an overview of the Supreme Court's term, a look at the Elena Kagan confirmation hearings, and a preview of what hot topics the court will be wrestling with next.


Click here to play the podcast.

Elena Kagan, John Roberts and the "balls and strikes" theory of the judiciary

Ben Boychuk and I discuss the role of the Supreme Court in this week's column for Scripps Howard. My take:

John Roberts' "balls and strikes" analogy is appealing, but it also has very little to do with how the Supreme Court works, or its role in American life.

The Supreme Court, after all, only takes the hard cases -- the ones where questions of Constitutional law are still unsettled. The easy questions -- the ones where the bright lines of the law make it relatively simple to determine the "right" results of cases -- are left to the lower courts.

But it's the Supreme Court's job to draw the bright lines. It must do so within the parameters of the Constitution, of course, but the job is still largely one of interpretation.

"The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another," retired Justice David Souter said in a recent commencement speech.

"Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning."

Elena Kagan this week said, "it ought to be Congress and the president that do the policy-making. And the courts ought to respect and ought to defer to that." That should comfort conservatives worried about "activist judging." The Supreme Court, however, has a difficult job.

Simple analogies don't make it any simpler.

Does your Miranda "right to remain silent" still exist?

That's the question for this week's Scripps Howard debate between Ben Boychuk and me, asked in the wake of the Supreme Court ruling this week that criminal suspects must speak up to claim their Fifth Amendment right against self-incrimination. My take:

The Supreme Court's ruling boils down to this: Police get to assume you don't want your Constitutional rights. The Miranda warning -- the one you've heard cops say on TV a million times -- is now essentially meaningless.

"Today's decision turns Miranda upside down," Justice Sotomayor wrote in her dissent. "Suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

Imagine if the government treated our other Constitutional protections this way. Federal agents would be free to shut down church services unless prayer was preceded by a pastor's public statement that churchgoers were exercising their First Amendment rights. Newspapers and bloggers would have to print the First Amendment on their front page to stave off a crackdown against criticizing the president. Gun owners would have to sign documents affirming their Second Amendment rights, or the government would be free to seize their firearms.

Sounds ridiculous, even un-American, right? So why should the Fifth Amendment right against self-incrimination be treated differently? Why should the government get to assume that you don't want your rights? Yes, there is a public interest in investigating and prosecuting crimes. But the Founders knew that interest could be abused, which is why they limited the government's police powers in the Constitution. Police don't like that, of course, but they're not supposed to. They're supposed to obey the rules anyway.

Constitutional rights are something that all American citizens are supposed to have. We're not supposed to have to jump through hoops in order to keep them; the government is supposed to jump through hoops in order to take them away. The Supreme Court, ironically led by "small government" conservatives, has now ruled otherwise. The Tea Partiers who routinely decry government tyranny might want to take notice.

John Yoo's weird column about Elena Kagan

I'd say that John Yoo's Inquirer column about Elena Kagan is fairly standard talking points stuff -- hates the military, loves her ivory tower, mean to Clarence Thomas -- except for one kind of weird point that he makes. He's critical of Kagan's now-famous decision to support efforts to keep military recruiters off the Harvard Law campus because of Don't Ask Don't Tell. Which is fine, except...

I happen to agree that the president and Congress should allow gays to serve in the military. But Kagan announced her policy while the United States was fighting in Afghanistan and Iraq. And she defied a federal law - the Solomon Amendment - that ordered schools to provide equal access to the military for campus recruitment or risk losing federal funding.

Remember: John Yoo once suggested the president has the power to suspend even the First Amendment under his war powers, so it's no surprise that he criticizes Kagan for sharing his opinions -- but acting on those opinions during wartime. Which leads us to Yoo's summing up of his critique:

But it was more than just striking a pose. Kagan declared that excluding gays from the military was "a profound wrong - a moral injustice of the first order." Her argument, which lost 8-0 before the Supreme Court, shows she was an activist before she was nominated to be a judge.

Wait. What? "She was an activist before she was nominated to be a judge?" That's clearly meant to be a slam, but what the heck's wrong with that? I get why Republicans say they hate "activist" judges; are we now to believe there's something wrong with activist private citizens? And if so, what would Yoo say about Tea Parties or abortion protesters?

There's only two ways Yoo's argument makes any sense here:

* That he's so loyal to the GOP that he's gotta find a way to criticize Democrats even when they share his positions.

* That he honestly believes the duty of an American citizen -- at least in wartime -- is to submit without challenge to the decisions of government, even if those decisions are (by Yoo's own lights) wrong. In this universe, then, there is no right "to petition for redress of grievances," no check-and-balance provided by the judicial branch. The time-honored tradition of American dissent -- and of nonviolent resistance to laws deemed by citizens to be morally wrong -- is thus "activist," and thus potentially disqualifying when it comes to judicial nominations.

You might think Kagan was wrong to criticize the Don't Ask Don't Tell policy. You might think she was wrong for barring recruiters from Harvard campus. Fine. But Yoo goes a step further: He broadly criticizes Elena Kagan for acting on her beliefs at all because they conflicted with the laws and policies of the government. It's an argument that makes sense coming from torture advocate John Yoo, but that doesn't make it any less at odds with the American democratic tradition.

Do President Obama's Supreme Court nominations discriminate against parents?

Via Julie Ponzi, Jules Crittenden wonders why Barack Obama can't nominate "soccer moms who went to a state school" to the Supreme Court:

I’d add that President Obama seems bent on packing the court with people who never had children, and would suggest that if you haven’t had your sleep disturbed for years on end; haven’t subjugated everything in your life to someone else’s interests … as opposed to subjugating everything to your career interests … and neve changed a diaper except, say, as a boutique experience; if you haven’t seen your hopes and dreams grow up, charge off in their own direction and start talking back to you; if you haven’t dealt with abuse of authority and human rights issues sometimes encountered in dealings with obtuse school officials, class bullies and town sports leagues; then there’s a high risk your understanding of life may be somewhat … academic.

It’s a humbling experience, parenthood. As well as an inspiring one that gives life meaning. It also, as a friend of mine once put it, makes you sane. Even while it drives you crazy. Put another way, it’s part of the maturation thing.

This sounds suspiciously like pining for a conservative version of "empathy" as a Supreme Court criteria (as Ponzi herself kind of suggests). But nevermind that. The real question here is: Why shouldn't childless Americans also be represented on the court?

Lots of people, after all, don't have kids. One estimate in 2006 suggested that 20 percent of women ages 40 to 44 or childless -- a pretty healthy proportion. But of the court's current membership, only Sonia Sotomayor is without children. (Antonin Scalia has nine kids. Statistically speaking, he more than makes up for Kagan and Sotomayor all by himself.) Bringing Kagan onto the court would mean that just more than 20 percent of justices are childless. So it all works out.

As it happens, I think it's fine to bat around these kinds of questions when looking at justices. I think the conservative approach to judicial philosophy -- were it practiced with any kind of rigor -- would reduce judging to a sterile intellectual exercise, where input A gives you output B. Lots of time, that is the case. But the Supreme Court decides the cases that are more complicated than that. And because law is made by, interpreted by and affects fallible human beings, I think it's naive, at best, to suggest that life experiences won't play a role in judging. So let's look at those life experiences! We'd think it weird if we had a courtful of childless justices, after all. It would also be weird if we had a court that only had parents on it.

Elena Kagan and the Supreme Court: Time to start electing justices

In this week's Scripps Howard column with my colleague Ben Boychuk, I say we don't know enough -- and won't know enough -- about Elena Kagan before she's confirmed to the Supreme Court. And I suggest we can solve this ongoing problem by forcing Supreme Court nominees to face American voters directly:

Heck no, we don't know enough about Elena Kagan. Then again, we didn't really know enough about John Roberts or any other Supreme Court nominee of recent vintage. That's the way the game is played: Smart nominees shut their mouths, still their pens and aim for an air of patriotic inscrutability. Barring scandal, they end up confirmed anyway -- and only then do we find out what they really believe. Kagan will probably be no exception.

Americans deserve to know more about the thinking and philosophy of the nominees who receive lifetime appointments to one of our nation's most powerful institutions. It's time to start putting our Supreme Court nominees to a vote of the American people.

"The Supreme Court has the power to affect lives, yet the judicial branch is unelected," political scientist Richard Davis wrote in his 2005 book, "Electing Justice: Fixing the Supreme Court Nomination Process." "In a democracy, the people should have the right to examine candidates for the court, including their views on issues that will affect the lives of citizens."

Yes: Supreme Court justices are supposed to be insulated from political pressures. The modern nominating process doesn't really work that way. The media and interest-group scrutiny of nominees -- along with the charges and countercharges, and the money spent on media campaigns -- can be every bit as intense as you'd find in a presidential campaign. We already have the politics; why not have an election? Judges in most states already face voters. Direct public scrutiny might shake up the kabuki routine of today's nominating process, and bring some much-needed accountability into the system.

Kagan might make a fine Supreme Court justice, but we can't be sure and the current process won't help us find out. Let her make her case to the American voters.

It's worth saying -- I didn't have the space in my half of the column -- that the justices wouldn't have to be completely subject to partisan pressures under this scenario. Davis in his book suggests a couple of different ways judicial selection could work, but they all involve the president making the nomination and the Senate offering a thumbs-up or thumbs-down before sending the recommendation (or recommendations: it could be a slate of candidates for the spot) to the American people for a final vote. (He also recommends justices be limited to one 18-year term, which I think might also be dandy.)

Funny thing is, I'm not really one of those guys who believes that every controversial issue should be put up to a referendum. But I think it's weird that a whole branch of so-called democratic government is oblivious to ... democracy.

Elena Kagan, Ralph Reed and the Second Amendment

This Ralph Reed -- remember him? -- post at The Corner, about Elena Kagan's radical tendencies, deserves a thorough fisking. But there's one point in particular that I found interesting. And by "interesting" I mean "dishonest."

In response to questions during her confirmation as solicitor general, Kagan argued the Second Amendment right to keep and bear arms, like freedom of speech, enjoys “strong but not unlimited protection.” This is a dangerous view of the law when it leads to the creeping erosion of the Bill of Rights.

Why is this dishonest? Because if you check what Kagan said at her solicitor general hearings, it's clear that she was citing DC vs. Heller, the 2008 case that upheld gun rights. This is a fuller and untruncated quote of what she said:

Once again, there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.

Is that really "a dangerous view of the law?" Consider this: Kagan was basically echoing the Heller decision in making her statement about the limits of the Second Amendment -- a decision written by Justice Antonin Scalia. Scalia wrote:

Like most rights, the Second Amendment right is not unlimited.It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to castdoubt on longstanding prohibitions on the possession of firearms byfelons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Is Ralph Reed really going to say that Antonin Scalia -- about as solid a Second Amendment absolutist as you'll find on the court -- has a "dangerous view of the law?" Of course not. So if he's saying the same view of the law is dangerous when held by Elena Kagan, well, you can be sure he's doing so in the service of dishonest hackery. Ralph Reed isn't telling the truth.

Elena Kagan and the undergraduate gotcha game

When I was 21, it's fair to say that I was to the left of my evangelical Mennonite college campus on the question of homosexuality. It's not that I didn't think homosexuality was sinful -- I did, and thought the Bible fairly clear on that point; I just felt that my fellow Christians were making too big a deal about it.

I've ... changed quite a bit since then. I've left the church, so "sin" doesn't really enter the equation for me; I've been -- for the past few years -- as vocal a proponent of marriage rights for gays as I know how to be. The person I was at 21 was aiming at the person I am at 37, to be certain, but the distance between here and there is considerable.

All of which brings me to this: You'll be hearing a lot over the next few days about Elena Kagan's undergraduate thesis on the "sad" demise of socialism in early 20th century New York City, a kind of knowing "proof" of her (and by extention, President Obama's) radical leanings. And it's silly. Kagan was no older than 21 when she wrote that piece; she's had an entire adult lifetime since then to evolve in her views -- a lifetime in which she's been a person more of the left than the right, to be certain, but without anything in the way of reported socialist leanings since then. Maybe she is a socialist, but the fact that she was sympathetic to socialism at the age of 21 isn't proof of much.

We spend way too much time analyzing the adolescent selves of our leaders when we evaluate their fitness for service. So Bill Clinton's marijuana smoking was seen as troubling, as was George W. Bush's service (or lack thereof) in the Air National Guard. And while perhaps those incidents could tell you something about the way those young men were aimed, they couldn't tell us that much about how they'd govern some 30 years later. We'd be better off judging our leaders by their adult lives and their record of public service. Trying to play "gotcha" with somebody's undergrad writings is a loser's game.