Because of his victory yesterday, the President is as popular as ever within his party but has seen his numbers sink with the general population. Yesterday’s vote saw the President finally shed his veneer of bipartisanship and all signs point to the fact that he’d rather make his next move an uncontroversial one. The nomination of Judge Wood or even a dark horse like Kathleen Sullivan would further inflame a Republican base that will soon be raising support (read: $$$) on the President’s healthcare bill. The nomination of Elena Kagan would be a comparatively uncontroversial nomination because she doesn’t have the same paper trail that most politicians or judges have accumulated.

Liberals in his party hope that the President feels liberated by the healthcare vote. In their view, the President no longer needs the capital that he was saving for the healthcare vote and can now make the ambitious ‘Scalia-like’ nomination that they were clamoring for last year. Even in Washington, where the next election start as soon as the previous one ends, a nomination in the summer of 2010 is a long way from the November 2012 election.

Of course, this administration has always been nervous about courting controversy. The President is likely to see the immediate post-HCR period as a time for reconciliation and he’d certainly prefer a vacancy next summer instead of in his weakened position today. The President would have a tough time recovering from HCR and a controversial nomination four months later. Whatever his decision, passage of the healthcare bill yesterday is likely to have a very real effect on the President’s decision.

Related posts

• Judge Sotomayor: Why Her? (May 26, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

Let me start off with the assumption that she will almost certainly be confirmed. Her background is relatively moderate and despite a few minor slip-ups, she has maintained a relatively non-controversial paper-trail. Elementary political considerations also mean that Senators will vote in favor of Judge Sotomayor in order to please their own individual constituencies.

I’m not surprised that the President selected such a home-run candidate as his first nominee. For better or worse, judicial nominees have been a losing proposition for recent Democratic presidents and this President was cognizant of that trend. The President hasn’t made any high-profile moves in his first few months in office and he has treaded lightly in the most controversial arenas, preferring to keep his head down in areas like same-sex marriage and abortion. Choosing a nominee like Pamela Karlan or Kathleen Sullivan would have mean jumping head-first into those issues and this President has not shown any inclination to do that. Especially in light of the imminent decision of the California Supreme Court on Proposition 8, the nomination of either of those two candidates would have sparked another potentially-fatal reaction from the right.

Judge Sotomayor likely won the nomination of the likes of Judge Diane Wood and Solicitor General Elena Kagan because of her compelling background story and the presumptive ease with which she will be confirmed. Of all the nominees that had been mentioned, Sotomayor was likely the easiest pick and that fact did not escape the White House.

Related posts

• The Healthcare Vote and Justice Stevens’ Replacement (March 22, 2010)
• Upcoming Cases to Watch (June 17, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)

I don’t ordinarily take note of political speeches coming from the White House, but I have to think about whether or not the President intentionally chose to speak on this topic with the fight for a judicial nominee looming. The President has been notoriously shy to speak about his views on the divisive subject and, with a nomination battle that will inevitably bring up the issue, he might have been looking to get a head-start on the debate. He spoke at length about developing a reasonable dialogue on the issue and reminded the audience that he supported the “sensible conscience clause” that would allow certain healthcare providers from promoting or facilitating abortion.

I’m not sure if it really means anything, but its definitely interesting that he chose to talk about an issue that is usually a tough subject for judicial nominees.

Related posts

• The Healthcare Vote and Justice Stevens’ Replacement (March 22, 2010)
• Judge Sotomayor: Why Her? (May 26, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)

On December 10th, Senate Majority Leader Harry Reid decided to celebrate Blagojevich’s 52nd birthday by drafting a letter soliciting his resignation. The letter, which was subsequently co-signed by the entire Democratic caucus, includes this warning:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus [to resign as Governor] and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

The Majority Leader is referring to Article 1, § 5, Clauses 1-2 of the Constitution of the United States, which read:

Section 5. [Clause 1] Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

[Clause 2] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Due to the impeachment proceedings and Blagojevich’s newfound support for a special election, the chances are very good that no one will ever have to answer the question of whether or not Reid actually has the authority not to seat an appointed Senator. On face, this question would appear to be judicial taboo, plainly fitting the parameters for what Federal Judges often call “non-justicable political questions.” But seeing as how it is isn’t very polite to threaten someone with a constitutional power that you don’t have, some people are starting to ask some questions.

In Powell v. McCormack 395 U.S. 486 (1969), the Supreme Court held 8-0 (with Justice Fortas ironically not voting due to his own political scandal) that the House of Representatives did not have the authority to “exclude” a constitutionally-eligible person from serving in Congress. Representative Adam Clayton Powell (D-NY) – who brought the case against the Speaker, the House Clerk, the Sergeant at Arms, and even the Doorkeeper of the House – alleged that the House’s decision to exclude him (as made in House Resolutions 1 and 278, both in 1967) was unconstitutional. Powell, who was accused of misusing travel funds and paying his wife an unearned Congressional salary, fit the constitutional requirements for office as stated in Article 1, § 2, Clause 2. The United States District Court for the District of Columbia dismissed the case for lack of jurisdiction; the Appeals Court ruled that it did have jurisdiction, but that the matter was, in fact, a non-justicable political question. The Supreme Court accepted review, and heard arguments on April 21, 1969.

In the majority opinion, Chief Justice Warren wrote that the Court’s analysis of Article I § 5

demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Thus, it would seem that Harry Reid lacks the authority to refuse to seat a duly-appointed Senator assuming he or she meets the constitutional requirements. The Senate could, of course, vote to expel the member with a 2/3 majority. And it would also be prudent to note that no self-respecting politician would accept a Blagojevich appointment at this point anyway.

In the end, it appears that this a pretty cut-and-dry sort of thing. Harry Reid either misspoke, intending to threaten an expulsion, or else someone needs the Majority Leader of the United States Senate a copy of the Constitution.

Related posts

• Justice Stevens and Roe v. Wade’s Initial Reception (July 30, 2007)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

In Rasul v. Myers, a group of individuals who had been held in Gutantanamo filed suit claiming inappropriate use of torture and “religious abuse and humiliation.” The DC Circuit handed down an opinion before the Supreme Court handed down Boumediene and today the Court vacated and remanded Rasule in light of its decision in Boumediene. You can see the filings in the case here thanks to SCOTUSblog.

The Court also, as expected, denied application for stay and/or injunction in Wrotnowski v. Bysiewicz, a case questioning whether or not Barack Obama can correctly be defined as a “natural born citizen” as mentioned in Article II. This marks the third case out of the three filed in which the Court has struck down similar claims.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court to Consider Another Obama Citizenship Claim in Wrotnowski v. Bysiewicz (December 8, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

I don’t think Team Obama should get too comfortable with the Court’s denial of [Donofrio] since [Wrotnowski] IS distributed for Dec 12 conference.

It’s important to remember that the “safe harbor” deadline–the date when Secretaries of State can begin constitutionally locking their states’ Electoral College votes–is today, December 9th. Thus, there is no reason for the Obama team to be anything less than totally comfortable: as long as the case is not heard and ruled upon by the end of business today (which it won’t be because it is not on the docket), the Court will concretely guarantee Obama 365 electoral votes. Game over.

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Court Appears to Deny Stay in Donofrio v. Wells (December 6, 2008)

Wrotnowski v. Bysiewicz is a motion for injunction filed by Cort Wrotnowski against Susan Bysiewicz, Secretary of State of Connecticut to halt the electoral college to hear a complaint against Barack Obama’s claim of citizenship. Unlike some of the other claims before the Court, this case focuses primarily on the President-elect’s father’s nationality. You can read the petition here.

According to the docket sheet (here), Justice Scalia referred the case to the Court as a whole today and it will be discussed at the December 12 conference. There is very, very little doubt that the Court will dismiss the case as it has the last two citizenship challenges to come before it.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

The case had been rejected by Justice Souter, the Justice who presides over that circuit, before it was refiled with Justice Thomas, who opted to refer it to the Court at-large. It was rejected by the Court in conference last Friday. Note that the case was submitted to the court on the eve of the election.

Here is what the docket reads:

Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)

The Supreme Court’s decision to deny review functionally ends the viability of any conspiracy theory concerning Obama’s citizenship. Even if the Court were to have accepted review, the case would have to have been heard and ruled upon before the “safe harbor” date for Electoral College votes, which is this coming Tuesday, December 9th. The other possibility was that the Court could stay the meeting of the Electoral College, slated for December 15th, pending review.

The denial means that there are now no legal barriers to stop Obama from locking in his 365 Electoral Votes on Tuesday, en route to becoming the 44th President of the United States.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

The common consensus says that President Obama will have little opportunity to affect the Court in the long run with any nominations in his first term. If he replaces any combination of Justices Stevens, Souter, and Ginsburg, he will be replacing a liberal Justice with another nominee who will likely be a solid liberal.

That line of thinking is not flawed, but it does overlook the subtle impact that Justices have on the Court. After cases are voted on, the senior-most Justice on each side of the decision is tasked with delegating the responsibility of writing their opinion. Justice Stevens, the senior associate Justice both among the liberals and, after the Chief Justice, amongst the Court at large, has used his delegating authority skillfully to build consensus for his positions. He frequently comments on the importance of delegating opinion-writing responsibly and he has often given the opinion to Justice Kennedy when he wasn’t solidified on the liberal position. Similarly, he claims to have taken several opinions for himself in order to write an opinion that could most easily attract four other Justices. If Justice Stevens retires, the senior-most Justice in a liberal 5-4 decision would be Justice Kennedy himself and it is difficult to predict how he would handle that responsibility. What is clear, however, is that with 14 years of experience as the Senior Associate Justice and 33 years on the Court, few Justices know how to handle the responsibility better than Justice Stevens.

President Obama will also have the chance to re-energize the ailing liberal bloc. While appointing young judges to the Court would do little in the short-run to counter the conservative revolution, depending on the number of Justices he can replace, he can give the next like-minded President the opportunity to seriously sway the court. The popularity of Justice Scalia within the academic and law community has undoubtedly had an impact on the way his distinct opinions and jurisprudence are received in the legal community. The liberal wing of the Court lacks a clear ideological leader who can condense their complex ideology into an idea that can be popularly marketed to a public that is skeptical of the phrase ‘judicial activism,’ despite being more fond of its policy outcomes. President Obama may get the chance to appoint a nominee who can do for liberal jurisprudence what Justice Scalia has done for textualism and he should not shrink from that responsibility.

Regardless, talk of long-term strategy may also be premature. In 2005, Justice O’Connor shocked the legal world when she, seemingly in full health, retired at 75 to care for her husband who had fallen ill. Justices Scalia and Kennedy are both 72 and have served on the nation’s highest court for more than two decades. Chief Justice Roberts has had a history of epilepsy and most recently suffered a seizure while on vacation in 2007. Justice Thomas has also had a particularly poor relationship with the Washington political scene after his confirmation hearings turned into a media circus following a sexual harassment allegation by former staffer Anita Hill.

Related posts

• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The argument goes: Hillary Clinton served in the Senate during a period in which the compensation for the Secretary of State was increased by way of executive order, therefore she is ineligible to assume that position.

I read the clause to disqualify her from the office until 2012 (the ‘Time for which [s]he was elected’.) The only necessary condition for the clause is that emoluments ‘have been increased’ during the time. Most people can agree on this point but there is a small contingency- likely in the single digits- that believes that the Senate may simply lower the wage to pre-election levels for the potential nominee.

The most common fix for the Emoluments Clause is the so-called ‘Saxbe Fix’ although it was used long before Richard Nixon appointed Senator Saxbe to Attorney General in 1973. President Taft had used it in 1909 and its Constitutionality has been debated by subsequent administrations. Rumor has it that because the Reagan administration decided that the Saxbe Fix was unconstitutional, they avoided appointing Sen. Orrin Hatch to fill the seat left by the retiring Justice Lewis Powell. The administration would later appoint Anthony Kennedy to fill the seat after the failed nominations of Robert Bork and Douglas Ginsburg.

DailyKos has interesting analysis from Madison’s notes at the Constitutional Convention. I tend to think the Saxbe Fix conforms quite reasonably to the intent of the Emoluments Clause but does not stand up to what the text of the clause actually reads. Unfortunately then, I would consider the appointment of Hillary Clinton to Secretary of State (before 2012) to be unconstitutional.

Related posts

• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)

WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)

I would wish that I could take my vote back. But is there a constitutional claim imbedded in my (hypothetical) buyer’s remorse?

On cursory inspection, the Constitution appears to answer this question by reserving the dating of elections as a power of the states. Article 1, Section 4 provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

But in 1999, the Voting Integrity Project brought suit against the Secretary of State of Texas in the United States District Court for the Southern District of Texas, alleging that portions of Texas Election Code pursuant to early voting violated 2 USC 7, which states:

“Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States…of the United States, of Representatives and Delegates to the Congress…”

In Voting Integrity Project v. Bomer (99-20757), the District Court denied VIP’s motion for summary judgment and, on appeal in 199 F.3d 773 (5th Cir. 2000 00:00:00), the Fifth Circuit Court of Appeals affirmed. The Supreme Court declined to review the decision.

The Fifth Circuit’s decision is a fascinating read that draws heavily on Foster v. Love 522 U.S. 67 and U.S. v. Classic 313 U.S. 299. The decision provides three basic reasons why early voting is not de facto unconstitutional.

First,

Because the election of federal representatives in Texas is not decided or “consummated” before federal election day, the Texas scheme is not inconsistent with the federal election statutes as interpreted by the court in Foster.

Second, the Court could not

“logically hold that Texas’ system of unrestricted advanced voting violates federal law without also finding that absentee balloting–which occurs in every state– violates federal law.

And, finally, the Court could not

conceive that Congress intended the federal election day statutes to have the effect of impeding citizens in exercising their right to vote.

There is certainly a lot of room for debate here, and I would be very curious to see what the Supreme Court would have to say. Clearly the bulk of the decision is in the Court’s first point. The second reason occurs to me as something of a cop out, not really speaking to the issue at hand. The third reason seems backwards: is it not true that the right to vote is best exercised when the most information is available? If not, why not just vote in all states on a rolling basis? After all, having an “election day” or even an “election period” (ie: an election day preceded by two weeks of early voting) inherently impedes the right to vote by making it impossible to vote outside of these temporal boundaries.

The Court’s first justification rests entirely on Foster’s definition of “election”; specifically it calls into question whether the act of voting is completed upon the casting of a vote or upon its counting. If the Court had interpreted the act of voting to be complete upon its casting, then I firmly believe they would’ve overturned the District Court. This surely would’ve generated a lot of media attention, and might have given the case a better chance of being heard by the SCOTUS. The stare decisis inherent in the Circuit Court’s deferral to Foster is palpable, and, at times, the decision itself seems to beg for higher review. For example, the entire crux of the decision depends on an interpretation of “the final act of voting,” yet the majority opinion itself notes that

there is room for argument about just what may constitute the final act of selection within the meaning of the law [emphasis mine]

For now, most of the debate surrounding early voting is happening in the states. In 2006, a Maryland Circuit Court Judge for Anne Arundel County ruled that early voting violated a provision of the state constitution that called for all elections to be held on the same, “election day.” Connecticut has had similar debates, and a few people on the internet have recently been calling for a cases similar to VIP to be filed in other states. I, for one, think something like the hypothetical I described earlier would bring some much needed attention to the issue. But unless Obama’s been unfaithful to Michelle, this is just an interesting what if.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

Related posts

• SCOTUS Versus POTUS (April 3, 2007)
• Is Early Voting Constitutional? (August 12, 2008)
• Upcoming Arguments: National Association of Home Builders and EPA v. Defenders of Wildlife (April 16, 2007)

Wisconsin presents an interesting case: it’s a state with a large middle and lower-income electorate, a large rural population, and a state without a substantial African-American vote (unlike South Carolina, Louisiana, Maryland, D.C., and Virginia). On paper, one would expect Hillary Clinton to handily win this state. Many polls even had her up by 10 points the week before the Wisconsin primary. And yet the Clinton campaign (and even many major news sources) played up Obama’s supposedly huge advantage in the state: it neighbors Illinois, Obama has a huge fundraising advantage, and, most importantly, Obama has momentum on his side. There was even talk that Clinton would regain the momentum if she could pull off an “upset” by winning Wisconsin. The expectations game, as shown by Wisconsin and other states that voted this month, is always played using the most immediate data and never in the context of the broader election process. If expectations are established within the 72 hours before any vote, people begin to lose focus on the big picture. Obama’s win in Wisconsin (by 17 points, no less) should hardly be expected, nor should it be credited solely to his momentum. Expectations in Wisconsin should have been based on the previous months’ worth of data from polling as well as a look at the demographics. Viewed through this lens, Obama’s February victories should hardly be expected. March 4th will be the most important day in Hillary Clinton’s political career. There’s a general consensus in the media that Clinton needs to not only win both Texas and Ohio, but win them by convincing 20 point margins simply to stay in the race. But polling data is showing that the race in both states is narrowing quickly. RealClearPolitics has compiled and averaged the results of polls from both Ohio and Texas, and they show 9 and 1 point leads for Clinton, respectively. Obama is closing in quickly with still a week to go. After a month of 11 straight losses and continuous excuses for those losses, the Clinton campaign needs to actually dig in to have a shot at the nomination. But will they? If their past strategy is any indication, they’ll downplay the importance of winning by big margins in the days before March 4th. They’ll cite the most recent polls and argue that even a slim 5 point win by Clinton is reason enough to stay in the race. Some might even dare say that a narrow victory in both states somehow gives Clinton the momentum. Let me make it as clear as possible: Hillary Clinton must win both Ohio and Texas, and must win both by 20 point margins to remain a credible candidate in the Democratic nomination race. Do not be tricked into the crazy expectations games that will inevitably be played in the coming days. With the odd rules and disproportionate allocation of delegates in Texas, anything short won’t be enough to reverse Obama’s momentum.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The Obama Rama Party (August 2, 2007)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

The gist of the article is that the city has decided to raise property taxes by 6.6 percent and also by removing an exemption of $69,000 from the minimum taxable value of a home. However, any resident aged 65 or elder currently enjoying this exemption remains exempt. This means that basically, they get a tax cut for being old. A quick Google search revealed that Congress too likes to play at age discrimination even though they made agism illegal for anyone who isn’t the government.

I don’t understand at all how that falls under the equal protection provision of the14th Amendment. I don’t see much difference between agism and racism. If racist legislation is a big 14th Amendment faux pas, agism should be too.

I could understand the city allowing a tax cut for the retired elderly who have a miniscule income and who honestly can’t afford the tax increase. The progressive nature of our income tax affirms this reasoning. However, a blanket tax cut based on age for the millionaires and destitute alike is clearly unfair and is likely unconstitutional.

Maybe it’s just because I’m still in college, but I don’t like being punished just for being young. I’m already paying into a social security system that I’ll never benefit from, and I don’t see why old people and oil companies get all the tax breaks.

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Call me a cynic, but I want to see more substance in a presidential candidate. However, this post isn’t about my personal views on Barack Obama. Rather, it’s about an interesting article on a great source for political opinion, realclearpolitics.com . The author Blake Dvorak, explains that

It might not seem possible for a candidate to appeal to both the far left and moderate independents at the same time, but Obama is uniquely positioned to do just this. With the far left, Obama has the distinct advantage of having been against the Iraq war from the beginning. But while Iraq remains the single most important issue with the far left, it also believes Obama is at heart a true liberal. The left will tolerate a certain amount of politicking; what it won’t tolerate is a candidate who might betray its core principles once in office, as it feels Bill Clinton did all too often and as Hillary did in 2002 with her war vote.

On the other side of the “Anyone But Hillary” coin are the moderate independents who are drawn to Obama’s innate political gifts and his call for a new kind of politics. When they see Obama, they don’t see, as the left does, a true believer; they see a break with the Bush-Clinton-Bush-Clinton dynastic succession. Obama hasn’t come out and said it, at least not yet, but the underlying message of his “vote for change” themed campaign is whether average, non-ideological Americans really want even four more years of a cycle that began in 1989.

Thus, Obama’s campaign has an interesting dynamic of appealing to two distinct voting blocks: independents/Reagan Democrats, and those on the far left. On issue after issue, many moderates would be alienated at Obama’s voting record and public stances, yet on style, he wins them over. So, Obama has to stylistically appeal to independents through lofty rhetoric about how there’s no white or black or red or blue America (maybe purple), or about talking through partisanship and etc… while at the same time, forcefully call for a withdrawal from Iraq and using Iraq to separate Hillary Clinton from the Democratic base.

The problem lies therefore in his attempts to attack Hillary Clinton. If he attacks her, he risks ruining his golden boy image and his reputation for bipartisanship/consensus builder. If he doesn’t attack her, then it’s a lot harder for him to raise his poll numbers.

However, Obama’s campaign is unusually well run and well strategized for a candidate with limited experience and roots in the DC beltway. In the recent Youtube/CNN debate, Obama, proclaimed that if president, he wouldn’t shy from meeting leaders of rogue nations (Hugo Chavez in Venezuela, Mahmound Ahmadinejad in Iran, Kim Jon-Il in North Korea, Peter Griffin of Petoria etc). Hillary, like a shark smelling blood in the water, pounced on his statement calling it “irresponsible and frankly naive“. Instead of retreating from his assertion and trying to erase the differences in his foreign policy views from that of Hillary, Obama uses the opportunity to create alot of buzz about the substantive disagreement he has w/ Hillary. The Washington Post explains that

Clinton advisers quickly cast Obama’s answer as a rookie mistake, and in an interview with the Quad-City Times in Davenport, Iowa, Clinton referred to Obama as “irresponsible and, frankly, naive.”
But Clinton’s direct criticism of Obama gave him an opening to shift the focus to their differences on Iraq. He called the newspaper and said what was “irresponsible and naive” was Clinton’s 2002 vote for the resolution authorizing the Iraq war, a pointed reminder that he opposed the war from the start.
Clinton advisers believed the episode would end there. They thought they had scored at least a tactical victory that demonstrated not only Clinton’s foreign policy experience but also the campaign’s effectiveness at leaping on what was viewed as an opponent’s mistake.
Instead, the issue continued to spiral, thanks in large part to Obama’s decision to keep it going. Yesterday morning, during a conference call in which he received the endorsement of Rep. Paul W. Hodes (D-N.H.), Obama pressed the argument that his approach to dealing with hostile governments represents real change.
“Nobody expects that you would suddenly just sit down with them for coffee without having done the appropriate groundwork,” he said. “But the question was: Would you meet them without preconditions? And part of the Bush doctrine has been to say no.”

Thus, the trick for Barack Obama is to seize upon substantive policy disagreements w/ Hillary Clinton that don’t alientate independents.  So in the coming months, expect for Obama/Hillary to dispute a number of issues ranging from the deal to help India’s nuclear ambitions to global warming.  This serves two purposes for Obama,

1) it boosts his foreign policy credentials by articulating a foreign policy vision that is distinct from the Bush Doctrine (which he says a Hillary presidency would continue) so that he can assuage the doubts of the far left over his relative inexperience.

2) denigrates Hillary’s “experience” advantage by portraying her views as a continuation of the Bush Doctrine.  After all, she did vote for the war in Iraq, and that is the biggest advantage Obama has.

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I think, after all — he’s talking about Roe against Wade there and so forth — and I think there are powerful stare decisis arguments there, but it’s also true that that has been a controversial decision in recent years.Interestingly, though, it was decided just two or three years before I went on the Court, and at the time, I was not asked a single question about that issue, because it was not then controversial. That’s quite interesting. It was a 7 to 2 decision, a sort of fairly routine decision at the time.

I remember during the confirmation hearings for Justice Thomas he was asked about his discussions in law school about that case, and he said he didn’t remember having any, and that people thought, well, he’s not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter.

It became more and more controversial as the years have gone on. 

When Thomas was being confirmed, he was ridiculed for telling people that he never discussed the idea in law school. Thomas graduated from Yale Law School in 1974 and Roe was decided on January 22, 1973 so it seems unlikely, but not impossible, that Thomas would go through the second half of his Law School experience without discussing the case. Althouse correctly identifies Steven’s remark a shrewd political move, but I think the notion of Roe being an unimportant decision when it was handed down is rather interesting. My first instinct was to consult my copy of “The Supreme Court” by the late Chief Justice Rehnquist. Well, I couldn’t find it so I had to turn to the next best option, “The American Supreme Court” by the late Harvard Law Professor Robert McCloskey and revised/edited by UT’s own Professor Stanford Levinson. McCloskey seems to believe that Roe served as a major step in the political accent of the pro-life movement but makes no mention of its role in the legal community.

[O]pponents of the decision, many of whom saw it basically as offering constitutional protection to the mass murder of innocent fetuses, mobilized against it. Although it is not self-evident that one’s views on abortion would necessarily correlate with more typical measures of “liberalism or “conservatism,” the antiabortion movement quickly allied itself with the Republican Party, especially the wing sharply crtical of the permissive cultural trends of the 1960′s. By 1978 several Democratic supporters of abortion rights lost their seats in the United States Senate, and tehir can be little doubt that the rise to power of Ronald Regan and the Republican capture of the Senate in 1980 were considerably helped along by the energies of the “right-to-life” movement.  

Levinson’s account of the whole Roe saga is a rather interesting take on an overlooked issue although he concludes that “with the 1993 retirement of White and his replacement by Ruth Bader Ginsburg…it is unlikely that Roe will be overruled.” Ha. His book was published in 2005 but if he had only waited a few more months, he would have had to reconsider this assessment in light of the nominations of John Roberts and Samuel Alito. Regardless, I think it would be interesting to research the history behind the alignment of the pro-life movement with the Republican party.

The next place I searched was the New York Times Archive. A subscription is required to access the archives but individuals with a .edu email address get free access to the whole TimesSelect package. To find contemporary analysis of the Roe decision, I specifically searched for ‘abortion court‘ and found a number of hits that dealt with the political and policy implications.  A front-page article from January 23 quotes a member of the New York state legislature as saying “I will have to study the decision to see if the language allows room for my bill but I will not change my bill to suit the decision.” Another article from January 23 provides excerpts from the Justice Blackmun’s opinion and from Justice White’s dissent.

As early as April 1973, just 3 months after the decision was released, critical analysis of the Roe decision started popping up in law reviews across the country. The first of which I found was John Hart Ely’s review in the Yale Law Journal and he cuts straight to the privacy matter:

[I]t seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. . . .
Unfortunately, . . . the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Thomas tried to join the Yale Law Journal during his time in the law school but wasn’t accepted. Presumably, if he had joined the Journal, he would have at least read about Roe. In November 1973, Professor Laurence Tribe authored a review of the Court’s 1972 term in the Harvard Law Review and devoted a considerable number of pages to analysis of Roe. At one point he offers commentary that sounds eerily like the commentary Justices would provide decades later in Casey and Carhart.

It is as though the Supreme Court were itself choosing, with the legislature’s help on matters of factual detail, either for itself or for some hypothetical person, between abortion and continued pregnancy

Justice Ginsburg wrote in Carhart:

It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).

Some things never change. Regardless of what Stevens was asked during his confirmation hearings, Roe v. Wade was almost definitely a major issue in the minds of his contemporaries.

Updated 7/30 @ 9:13- I was rereading Tribe’s article in the Harvard Law Review when I ran across this analysis:

When the court had its most dramatic opportunity to express its supposed aversion to substantive due process, it carried that doctrine to lengths few observers had expected, imposing limits on permissible abortion legislation to severe that no abortion law in the United States remained valid

I’m not sure if I would consider that “a fairly standard, noncontroversial matter.” I found law review articles from 1973 (Supreme Court Review), 1974 (Columbia Law Review and Supreme Court Review), 1975 (California Law Review), and 1976 (Virginia Law Review) all of which discuss the Roe decision at great length.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
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Kedar: Hey, do you think the Supreme Court has become too conservative? 

Random Person: Yeah, that race ruling about the schools was crazy- I thought we had gotten past discrimination!

Kedar: Would you be in favor of appointing some liberal justices?

Random Person: Umm…I don’t think I want any activist judges on the court either.

Kedar: So what do you think is the best thing for the court?

Random Person: This court thing is complicated. Lets talk about Iraq!

The democrats need to capitalize on the American people’s disapproval of the Court ASAP. October Term 2007 is likely to be more subdued than OT 2006 by virtue of the fact that the court doesn’t always stumble upon so many high-profile cases in a single year. It just happened that all of the planets aligned last term to produce conservative victories in a race-based case (Parents Involved), an abortion case (Carhart), a womens-rights case (Ledbetter), and a free speech case (Morse). Thus far, the court has accepted review in only one high-profile case, Boumediene, and detainee-rights don’t invoke the same reactions that abortion, free speech, discrimination, and civil rights do.

Chuck Shumer has declared that he would rather not confirm any new Bush nominees but I’m not sure that Bush will have the opportunity to nominate any more justices. Most Supreme Court watchers aren’t expecting a new appointment until after the 2008 election although then the Court’s makeup is up for grabs. More likely than not, one or more of the liberal justices will leave in the next 5 years and none of the conservative justices will leave their post (save for the possibility of a Thomas resignation if a Republican wins in ’08.) If a Republican wins in ’08, John Paul Stevens will be 92-years old by the time the Oval Office is up for grabs again in 2012. At 92, he will be old even for a Justice and will face the tough decision to step down (dooming the liberals on the court) or fighting through 4-years of Supreme Court coursework (dooming himself during what should be his retirement.) If he serves until 2012, he will be the oldest Justice to ever sit on the court, beating Oliver Wendell Homes who served until he was 90. If a democrat wins in the White House in ’08, I would not be surprised to see Stevens and/or Souter retire. Stevens will be as old as antiquity and a lot of people are under the impression that Justice Souter isn’t too pleased with his current job.

Court-watchers are also expecting Ginsburg to step down, but after the whipping that liberals got from conservatives this during OT 2006, I’m not sure if Ginsburg is going to retire anytime soon. She’s only 74 right now and she’ll be almost 80 in 2012 when the White House is up for grabs again. Stevens is 87 right now and has shown no signs of letting up any time soon so its not inconceivable that Ginsburg will take full advantage of her tenure and stay another decade (or two!).

To summarize: If a Democrat wins in ’08, the court’s dynamics won’t change much. If a Republican wins in ’08, there is a very good chance that the court will shift even further to the right than it already has.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)
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