Friday, May 30, 2003


Commenting on Jay Nordlinger's pitch for Justice Thomas to be nominated as the Supreme Court’s next chief justice, the American Constitution Society blasts Justice Thomas's concurring opinion in United States v. Lopez as representative of a jurisprudence allegedly "detached from reality, rigid, and . . . extreme." Apart from taking quotes out of context (thereby making Justice Thomas's lengthy and well-reasoned opinion seem like a feat of ipse dixit) and distorting Justice Thomas's true position (which is not to return to an 18th-century view of commerce, but rather to "construct[] a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence"), the ACS criticism represents what has unfortunately become the standard leftist attack on principled jurists: the mere suggestion that judicial decision-making ought to be constrained by the text and history of a legal provision, rather that conformed to prevailing (and preferably liberal) political views, is enough to evoke the "extremist" label. This is, of course, the Schumer/Leahy standard for judging the President Bush's judicial nominees, and it ensures that those persons most qualified for (or at least most willing to adhere to) the proper judicial role will continue to be most vilified by the Left.


The results of the Circuit's Supreme Court nominations poll are in, and in them can be seen an overwhelming rejection of the Democratic Party's strategy of filibustering the circuit court nomination of Miguel Estrada. While Senate Democratics hoped their filibuster would convince Americans that the Honduran-born Estrada does not deserve to be a federal judge, the filibuster has in fact had the opposite effect, convincing a plurality of voters that the previously obscure lawyer ought to be Bush's first pick for the Supreme Court.

The Circuit's favorite candidate, Justice Janice Rogers Brown of the California Supreme Court, finished a strong second in the poll. White House counsel Alberto Gonzales, often touted as President Bush's top choice, finshed what for him and his supporters must be a disappointing distant third place. The Circuit views Gonzales's weak finish as a strong signal from grass-roots voters that the administration should avoid a repeat of the disastrous appointment by the President's father of Justice Souter (whose name, we are told, is English for "Gonzales").

Write-in candidates included Seventh Circuit judges Richard Posner and Frank Easterbrook, Deputy Attorney General Larry Thomson, and someone named Howard Bashman.

Thursday, May 29, 2003


Timothy Sandefur offers a new suggestion regarding the mystery of Goedel's Last Theorem, which has been an issue of longstanding interest to the Circuit. Sandefur suggests that Goedel may have been revisiting Alexis de Tocqueville's famous concerns about the possibility of a "tyranny of the majority." Sandefur observes that despite the elaborate checks and balances of our constitutional system, in the end "[n]othing can save us from ourselves." This is undoubtedly correct. But it is highly unlikely that this was the animating concern behind Goedel's purported discovery. Far from expressing any concern about a majority trampling the rights of minorities, Goedel professed to have discovered a constitutional mechanism by which the majority could be stripped of power altogether, and a single dictator could lawfully attain control of the United States government. Nonetheless, we appreciate the suggestion and renew our call for additional thoughts on this problem.

Wednesday, May 28, 2003


Whom should President Bush nominate to fill a potential Supreme Court vacancy at the end of this Term? Without getting too specific, the word around town is that certain influential members of the administration regularly monitor the Fourteenth Circuit to keep in touch with the street sentiment of jurisprudential moderates. Let the administration know who should be tapped before it's too late to affect that decision! See the new poll feature at the left.

Tuesday, May 27, 2003


More than one of our readers have suggested that because the final vote to uphold the FMLA was 6-3, Chief Justice Rehnquist's disappointing vote in Hibbs may have been the result of the Chief's desire to control the assignment of the opinion and thereby prevent an even broader eviseration of Flores authored by a Justice less solicitous of State sovereingty. That theory would strike us as plausible were there in fact five other votes for the majority's rationale. As we noted earlier, however, Justice Stevens rejected the majority's broad interpretation of Congress's Enforcement Clause power, meaning that the Chief's vote was the crucial fifth on that issue. Yes, the FMLA would have been applicable against the States no matter how the Chief voted, but had he sided with the dissenters, the Court's decision would have been a classic example of the so-called Tidewater Paradox: an outcome supported by multiple rationales, none of which on its own commanded the support of a majority of Justices. Such a fracturerd outcome would have been greatly preferable to the blank check given to Congress to legislate beyond the scope of its proper authority. The Fourteenth Circuit have long been among his staunchest supporters, but there is simply no way to defend the Chief on this one.


Although we predicted otherwise, the Fourteenth Circuit is not entirely surprised that Justice O'Connor -- heretofore one of the leaders of the now apparently defunct federalism revolution of the Rehnquist Court -- got cold feet and voted in Nevada Department of Human Resouces v. Hibbs to uphold the Family and Medical Leave Act (FMLA) as a valid exercise of Congress's power to "enforce" against the States the Fourteenth Amendment's ban on intentional discrimination. But we were floored to see that Chief Justice Rehnquist not only voted with and wrote for the anti-States'-rights wing of the Court, but actually cast the decisive fifth vote to stop the Court's Enforcement Clause jurisprudence dead in its tracks.

While the vote to uphold the FMLA (as applied to the States) was 6-3, Justice Stevens notably refused to join a majority opinion endorsing a use of the Enforcement Clause that is not only inconsistent with the seminal decision in City of Boerne v. Flores, but also far broader than any use endorsed in the darkest days of Warren and Burger Court activism. Had the Chief voted as expected, while the application of the FMLA to the States would have been upheld, no single rationale would have commanded a majority of the Court, and recent gains in Enforcement Clause jurisprudence would not have been squandered.

As the nation enters into what may well be the final month of the Rehnquist Court, the line of federalism cases circumscribing Congress's powers to their appropriate and consitutionally enumerated spheres was to be that Court's greatest legacy. While a number of more predictable jurisprudential disasters approach on the horizon, today's inexplicable betrayal of this legacy by none other than its chief architect is to be especially deplored.