Topic: Law and Civil Liberties

Haywood v. Drown

The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism.  The issue concerned the  extent to which the central government can commandeer state judicial systems.  Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.

Justice Clarence Thomas filed  another one of his sober, scholarly opinions in dissent and I think he makes the case rather well.  Excerpt:

The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.

Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.

Until this setback, the Court’s conservatives were doing well in this corner of the law.  In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction.  In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction.  This case stood for the proposition that state courts are not subject to federal direction.  Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.

Here’s a practical example to illustrate the problem.  It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation.  But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!”  So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability.  That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency.  The feds have permission to foist costs on to the states.

But, to be clear, the main issue here is the proper division of federal and state authority.  Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary.  As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals.  Within its proper sphere, the feds are supreme.  Liberals want supremacy and federal authority that is plenary.  Wrong.  Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.

McCarthy Does Petraeus a Disservice

General Petraeus recently gave an interview to Fox News. Petraeus speaks approvingly of the decision to close Guantanamo, limiting interrogation to the techniques in the Army Field Manual, and how adherence to the Geneva Conventions takes propaganda fodder out of the hands of our enemies.

Andy McCarthy attacks Petraeus over at National Review Online’s The Corner:

With due respect to Gen. Petraeus, this is just vapid. To begin with, he doesn’t identify any provision of the Geneva Conventions that we have actually violated - he just repeats the standard talking-point of his current commander-in-chief that we took “steps that have violated the Geneva Conventions” during those bad old Bush days. What steps is he talking about? How about naming one?

McCarthy then uses the brief reference to the Geneva Conventions to attack strawman arguments as if Petraeus wanted to give full Prisoner of War status to Al Qaeda and Taliban fighters and had just proposed ending military detention of combatants picked up on the battlefield.

I’m pretty sure that Petraeus is not squeamish about keeping detainees in custody. As CENTCOM Commander, he’s got over 600 of them in Bagram.

When you watch the video it’s pretty clear that Petraeus was referring to the treatment of detainees and the use of “enhanced interrogation techniques” as violating the Geneva Conventions, a position consistent with his previous statements. Petraeus doesn’t supply a specific provision to satisfy McCarthy, but he is likely thinking about Common Article 3 of the Geneva Conventions of 1949.  This provision bans, even in a conflict of a non-international nature (read: counterinsurgency and counterterrorism), cruelty, torture, and humiliating and degrading treatment.

McCarthy is also broadly dismissive of the propaganda effect that Guantanamo has had in encouraging people to take up arms against US forces. This sentiment is counter to the doctrine that I learned in the Special Forces Detachment Commander’s Qualification Course. Low-level insurgencies and terrorism are driven by propaganda.

To build an insurgency, you don’t need to win battles. You need to take a few shots at your enemy and tell stories about how successful you were, even when you weren’t. Over time you get sympathetic parties to join your struggle and gain critical mass to move into outright guerrilla warfare.

To sustain a worldwide terrorist organization, you don’t need to actually pose an existential threat. You need to prod a superpower into deploying large troop formations into the Muslim world, where they can be entangled in local disputes over local grievances. Usama bin Laden is not the commander-in-chief of any significant armed force, but he can be the inciter-in-chief who makes broad claims about opposition to America. He tries to link local insurgencies to his global caliphate narrative even where they are not supportive of his broader goals. Check out David Kilcullen’s book, The Accidental Guerrilla, for a detailed discussion. Incidentally, Kilcullen worked for Petraeus as a senior counterinsurgency advisor in Iraq.

This is the propaganda war we are fighting, and most everyone agrees that we have not been doing it very well. Every time we drop a bomb in Afghanistan, the Taliban beat us to the punch with exaggerated (and mostly false) claims of civilian casualties. US forces are now reviving body count reports to counter Taliban propaganda. While I don’t think that body counts are a good metric for success in the long run, trying to be an honest broker of good and bad information blunts enemy propaganda.

McCarthy is wrong to mischaracterize Petraeus’ words and dismiss the propaganda war where we have largely been a punching bag. Cheerleading our military leaders who produce gains on the ground but dismissing the fundamental insights that produced their success is willful blindness.

Responses to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns – and quite thoughtfully at that – so I thought I would share this exchange with a reader who emailed me his comments:

I read  your piece “Sotomayor Pick Not Based on Merit”, where you write, “in over 10 years on the Second Circuit, she has not issued any important decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and, as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there, but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.” And that “To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.” 2 out of over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.”

I did a bit of research on them, and I’m not sure why you reached that conclusion. They are all qualified, in some respects Wood and Kagan are a bit more impressive, but you give the impression that she’s not highly qualified, and I don’t see evidence for that. On the contrary, she seems highly qualified - she has a long judicial and academic record, she has dealt with a myriad of issues, and has authored a vast amount of rulings, which, as far as I’ve seen, don’t appear to be ideological or particularly “activist.” She strikes me as someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly unqualified. She’s hardly intellectually impressive in any way, to put it mildly, and nothing about her record was impressive or even remotely suggesting she’s qualified to serve as a Justice. She was basically a manager of a law firm, with zero qualifications to serve as a SC justice. By even mentioning her name while discussing Sotomayor, you’re giving the impression there’s an analogy there, where there’s really none. Sotomayor is light-years ahead of Miers. You can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I personally would side with the firemen, and it’s unfortunate that Sotomayor hasn’t, but to be fair, she hasn’t even written a decision about that.
We don’t know what her reasoning was. She merely signed, along with the rest of the panel, to uphold the lower court’s decision. It’s hard to build an entire case against her based on something like that. She has written over 150 other decisions, why not focus on them? Why pick one, that doesn’t even have any arguments in it, and make it the central issue, when there are over 150 reasoned decisions to analyze?
Why not review them, and give the public a deeper assessment, rather than focusing on ONE, which doesn’t even have any arguments or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate libertarian by philosophy, I’m just not sure why Cato is opposing her nomination. I like to think of Cato as non-partisan, just as I am, but on this issue your and Pilon’s opposition/criticism smacks from political partisanship and is not based on the evidence. So it seems to me.

Thanks for reading.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve waded through a fair number and read every public report on them produced thus far (including the very helpful SCOTUSblog summary you cite). Like you, some I agree with – most, actually, because most cases at this intermediate appellate level are not controversial (legally or politically), even if complex – some I don’t. But there’s just not much “there” there – intellectual depth, scholarly merit, etc. – at least by the elevated standards for elevation to the Supreme Court and in comparison to more accomplished jurists like Wood and Garland. She’s a competent judge, but we have 500 of those in the federal judiciary alone. (And none of this is to disparage her tremendous personal story; I write this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of cases it is asked to review. So, statistically, we can say nothing about Sotomayor in that sense. A couple of her reversals are a bit strange, but on technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair to say Miers was a mere “law firm manager” – she was White House counsel and apparently a decent lawyer in private practice).  I threw that line in there to show I can pick on Republican nominees too.

4. While Roger, whom I copy here, has discussed suspicions of Sotomayor’s activism or radicalness – and I think it’s clear she has more of those tendencies than Wood or Kagan – this is not the thrust of the my CNN commentary. We just can’t tell from her opinions, which are all over the map – other than the speeches at Berkely and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the decision is blatant racial discrimination – and the Supreme Court looks likely to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to grapple with the complex constitutional and statutory issues is a serious dereliction of judicial duty – as pointed out by Jose Cabranes in his dissent from denial of en banc rehearing. Regardless of the merits of the case, the way it was handled – as a per curiam summary affirmance released late on a Friday, meant to sweep the case under the rug – is outrageous. Sotomayor was 100% complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here isn’t in any particular personality but rather: 1) that official appointments be made irrespective of racial/ethnic/identity politics, and 2) even more importantly, that the Supreme Court interpret the Constitution in a way that treats the judicial enterprise not as one of enforcing social justice or otherwise rewriting the law it when a result is inconvenient. The talk of “empathy” is disturbing precisely because it is the antithesis of the rule of law. And this is why Republican Judiciary Committee members must generate a public debate on judicial philosophy and not merely attempt to tear down this nominee. If they don’t demand substantive answers on serious constitutional questions, they will be complicit in the deterioration of our confirmation processes.

All the best,
Ilya

I look forward to following and commenting further as the confirmation process plays itself out.

Week in Review: Sotomayor, North Korean Nukes and The Fairness Doctrine

Obama Picks Sotomayor for Supreme Court

sotomayorPresident Obama chose federal Judge Sonia Sotomayor on Tuesday as his nominee for the U.S. Supreme Court, the first Hispanic Latina to serve on the bench.

On Cato’s blog, constitutional law scholar Roger Pilon wrote, “President Obama chose the most radical of all the frequently mentioned candidates before him.”

Cato Supreme Court Review editor and senior fellow Ilya Shapiro weighed in, saying, “In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic.”

Shapiro expands his claim that Sotomayor was not chosen based on merit at CNN.com:

In over 10 years on the Second Circuit, she has not issued any important decisions or made a name for herself as a legal scholar or particularly respected jurist. In picking a case to highlight during his introduction of the nominee, President Obama had to go back to her days as a trial judge and a technical ruling that ended the 1994-95 baseball strike.

Pilon led a live-chat on The Politico’s Web site, answering questions from readers about Sotomayor’s record and history.

And at The Wall Street Journal, Cato senior fellow John Hasnas asks whether “compassion and empathy” are really characteristics we want in a judge:

Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.

North Korea Tests Nukes

The Washington Post reports, “North Korea reportedly fired two more short-range missiles into waters off its east coast Tuesday, undeterred by the strong international condemnation that followed its detonation of a nuclear device and test-firing of three missiles a day earlier.”

Writing in the National Interest online, Cato scholar Doug Bandow discusses how the United States should react:

Washington has few options. The U.S. military could flatten every building in the Democratic People’s Republic of Korea (DPRK), but even a short war would be a humanitarian catastrophe and likely would wreck Seoul, South Korea’s industrial and political heart. America’s top objective should be to avoid, not trigger, a conflict. Today’s North Korean regime seems bound to disappear eventually. Better to wait it out, if possible.

On Cato’s blog, Bandow expands on his analysis on the best way to handle North Korea:

The U.S. should not reward “Dear Leader” Kim Jong-Il with a plethora of statements beseeching the regime to cooperate and threatening dire consequences for its bad behavior. Rather, the Obama administration should explain, perhaps through China, that the U.S. is interested in forging a more positive relationship with [the] North, but that no improvement will be possible so long as North Korea acts provocatively. Washington should encourage South Korea and Japan to take a similar stance.

Moreover, the U.S. should step back and suggest that China, Seoul, and Tokyo take the lead in dealing with Pyongyang. North Korea’s activities more threaten its neighbors than America. Even Beijing, the North’s long-time ally, long ago lost patience with Kim’s belligerent behavior and might be willing to support tougher sanctions.

Cato Media Quick Hits

Here are a few highlights of Cato media appearances now up on Cato’s YouTube channel:

It Is a Checkpoint, After All

The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.

The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.

Cheney’s Worldview

Former vice president Richard Cheney gave his big address on national security (pdf) over at AEI last week.   He covered a lot of ground, but this passage, I think, tells us quite a bit about Cheney’s worldview:

If fine speech-making, appeals to reason, or pleas for compassion had the power to move [al-Qaeda], the terrorists would long ago have abandoned the field.  And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along.  Instead the terrorists see just what they were hoping for — our unity gone, our resolve shaken, our leaders distracted.  In short, they see weakness and opportunity.

So we shouldn’t let the terrorists see us get “caught up in arguments” about  the wisdom of our foreign policy, about whether our country should go to war, about our country’s treaty obligations, about the parameters of government power under our Constitution?  What is this former vice president thinking?

Does it matter if Charles Manson appreciates the fact that he got a trial instead of a summary execution?  No.  It does not matter what’s in that twisted head of his.  Same thing with bin Laden.  The American military should make every effort to avoid civilian casualties  even if bin Laden targets civilians.  Similarly,  it does not matter if bin Laden scoffs at the Geneva Convention as a sign of  ”weakness.”  The former VP does not get it.  It is about us, not the terrorists.

An obsession with the mentality of the enemy (what they see; what they hope for, etc.) can distort  our military and counterterrorism strategy (pdf) as well.  Cheney wants to find out what bin Laden’s objective is and then thwart it.  I certainly agree that  gathering intelligence about the enemy is useful, but Cheney seems so obsessed that he wants to thwart al-Qaeda’s objectives — even if some pose no threat to the USA, and even if some of al-Qaeda’s  objectives are pure folly.  

If the CIA told Cheney that it intercepted a message and learned that bin Laden wanted some of his men to climb Mount Everest as a propaganda ploy to somehow show the world that they can lord over the globe, one gets the feeling that  Cheney wouldn’t shrug at the report.  Since that is what bin Laden hopes to achieve, the enemy objective must be thwarted!  Quick, dispatch American GIs to the top of Everest and establish a post.  Stay on the lookout for al-Qaeda and stop them no matter what!  That’ll show bin Laden who has the real power!  Farfetched, yes, but what about the costly nation-building exercise (pdf) in Iraq?  How long is that going to last?  Mr. Cheney did not want to address that part of the Bush-Cheney record for some reason.

In another passage, Cheney bristles at the notion that his “unpleasant” interrogation practices have been a recruitment tool for the enemy.  Cheney claims this theory ignores the fact that 9/11 happened before the torture memos were ever drafted and approved.  He observes that the terrorists have never “lacked for grievances against the United States.”  They’re evil, Cheney says, now let’s talk about something else.  The gist of Cheney’s argument — that no post 9/11 policy can ever be counterproductive — makes no sense.

Cheney’s controversial legacy will be debated for a long time.  And he’s smart enough to know that he may have very few defenders down the road, so he is wasting no time at all in making his own case.  The problem is that his case is weak and plenty of people can see it. 

For related Cato work, go here and here.

Richard Epstein on Sotomayor

Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:

The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court.