Last summer, Jonathan Rauch, a senior fellow at the Brookings Institution, published a short e-book, Political Realism: How Hacks, Big Money, and Back-Room Deals Can Strengthen American Democracy. The over-the-top title notwithstanding, it made a concise, reasoned case against well-intentioned political reforms—including campaign-finance reform—that actually undermine rather than strengthen citizen participation in the republic. It is important to attract readers, so provocative titles certainly matter, and Rick Hasen makes his own attempt with Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. It is a dig at the Supreme Court’s 2010 opinion in Citizens United v. Federal…
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.
Merrick Garland, President Obama’s nominee to the Supreme Court, has been touted as a centrist on the court of appeals. Whatever reasons there are to confirm him, that should not be one of them.
First, the centrism of a lower court judge is likely an illusion. He is bound by Supreme Court precedent and thus has limited ability to change the status quo. Thus, he tends to be centrist simply by virtue of his position. To be sure, there are some lawless circuit judges, who do not make a good faith effort to follow Supreme Court precedent, but they are relatively few. And none of these could be serious candidates for the Supreme Court, where a record of reversal and obvious disobedience would be seized on by the opposition.
Ruth Bader Ginsburg was pretty faithful in applying precedents when she, like Garland, was on the D.C. circuit. And she too was praised as centrist. But on the Supreme Court she has led the left on the Court. Some of her rulings and views are in fact outlandish, if not Orwellian.
When Charles G. Koch, the chief executive officer of his family business, recently wrote an op-ed for the Washington Post saying he agreed with Democratic presidential candidate Bernie Sanders that our economic system is “often rigged to help the privileged few,” it raised eyebrows even among the company-town’s power structure.
The online version was absolutely swamped with comments. Almost all of the commenters agreed about the evils of crony capitalism but most of them unfairly attacked Koch as hypocritical for being a capitalist himself. The examples he presented of Koch Industries’ opposing government subsidies that could have advantaged its business counted for exactly nothing. Pretty tough to crack the capitalist stereotype even when the capitalist supports one of the Left’s core precepts.
A year ago, Donald Devine offered readers of Law and Liberty an expert summary and a warm endorsement of the political philosopher Larry Siedentop’s latest book Inventing the Individual: The Origins of Western Liberalism. Siedentop traces the modern, “secular,” and liberal ideas of moral equality and equal liberty to the Christian overturning of “the aristocratic assumption upon which all ancient thinking was based, that of natural inequality,” and he finds in this intellectual genealogy an argument for a contemporary alliance of secular liberals and Christians in affirmation of individual rights.
Many on Left want to politicize American law and they are emboldened by the vacancy on the Supreme Court to achieve their long sought goal. But don’t take my word for it. Zephyr Teachout, a professor of law at Fordham, ex-candidate for the governorship of New York and current candidate for Congress, laments the current state of antitrust law: “If you can depoliticize antitrust law, you can depoliticize anything.”
The quote comes at the end of a long article in the New York Times in which many commentators complain about Supreme Court decisions friendly to business. The evidence that the Roberts Court has been the best court for business in decades comes from a study by Lee Epstein, Bill Landes, and Richard Posner. This study has been ably critiqued by Jonathan Adler, who notes, among other things, that the study leaves out regulatory decisions quite unfriendly to business.
But my observation here is that neither the authors of the study nor the commentators in the Times article try to show that that the decisions in favor of business were legally incorrect.
At the University of San Diego Law School, the American Constitution Society recently held a panel discussion on the issues raised by the Justice Scalia vacancy. The panel included Don Dripps, Larry Alexander (who was plagued by laryngitis), and myself.
I started off arguing that the original meaning of the Constitution does not require the Senate to act on any nomination made by President Obama. The language of the Advice and Consent provision certainly does not support it. The text of the provision states: “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court, and other Officers of the United States.” Obviously, this merely requires that a Supreme Court Justice be confirmed before being appointed. It does not require that the Senate act in response to a nomination.
I also argued that this reading of the provision accords with similar parts of the Constitution. For example, when the House of Representatives passes a bill, there is no obligation for the Senate to vote on or even to consider that bill. While the Constitution states that the President may “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient,” no one believes that Congress must respond to these recommendations. In fact, the Constitution does occasionally specify an obligation to respond and consequences from failing to respond. In the veto provision, the President is given 10 days to approve or veto a bill, and if he fails to act, the bill is treated as passed (unless the Congress is not in session). A comparison of this provision with the Constitution’s silence about any Senate’s obligation to respond to a nomination is instructive. After making this point at the panel discussion, I was pleased to see that Vik Amar made the same point in print.
Spying Through a Glass Darkly: American Espionage against the Soviet Union, 1945-1946 is about a little-known intelligence unit whose continued activity after World War II invalidates the conventional wisdom that the wartime Office of Strategic Services had been disbanded upon the victory of the Allies. The authors construct a heroic portrait of this short-lived Strategic Services Unit (SSU), arguing that it managed to provide vital assistance in the face of great obstacles—one being the calling home of embedded agents after Germany surrendered, and the other a bureaucratic power struggle with the FBI, which refused to step into the intelligence-collection void unless it was made supreme over all U.S. intelligence.
Harvard Law School, in abject surrender to student activists, is about to change its escutcheon because its design was derived from that of Isaac Royall, Jr., who endowed the first chair at the school. Royall’s father made the family fortune from slave plantations in the West Indies and Massachusetts, a fortune that was therefore tainted (as Balzac said that all great fortunes are).