Will state justices hear arguments against Prop. 8?

Some signs suggest the State Supreme Court will grant a review of Proposition 8, which took away the right the same court granted earlier this year for same-sex couples of marry.

The case petitioners are seeking to argue before the court is that the proposition amounts to a “revision” rather than an “amendment” to the state constitution, because it strips a fundamental right. I am no legal scholar, so I won’t pretend to assess the legal value of that argument. However, with the decision so recent, and 4-3, and with California justices subject to periodic retention elections (and potentially subject to a recall-election petition), I would not put good money on their being willing to insist on their earlier decision and overturn the measure.

Meanwhile, Gov. Arnold Schwarzenegger has said he believes courts should allow same-sex marriages.

And then there will also be the legal question–if Prop. 8 is not overturned–of whether the marriages performed between the time of the Court’s ruling in spring and the fall election would remain valid.

Yet another interesting angle is that the state’s Attorney General, Jerry Brown, is a proponent of inclusive marriage rights, but his job title would require him to defend the state’s newly enacted constitutional amendment stripping that right if it comes before the court.

Israeli Supreme Court rejects plea for broad probe of war

The panel of the High Court reviewing a petition from The Movement for Quality Government in Israel to demand a State Commission of Inquiry on the summer, 2006, war in Lebanon, rejected the petition in a 4-3 vote. As Haaretz reports, the Justices nonetheless criticized the government for creating a much weaker panel to review the actions leading up to and during the war, which the petitioner sought to replace with a more independent State Commission:

The High Court’s abstention does not indicate its contentment with the way in which the government made the decision, nor does it give its seal of public approval for appointing the committee…

The Mexican Electoral Tribunal: This is no Bush v. Gore

Regarding the Electoral Tribunal of the Federal Judiciary (TEPJF), Mexican political scientist José Antonio Crespo notes:

La calificación presidencial del año 2000 fue una prueba facilísima para el TEPJF, fue como pasar el kínder. Ahora, en este 2006, la calificación presidencial será para el TEPJF como su doctorado.

Indeed. (Roughly translated: In 2000, validating the election was as easy as passing kindergarten. In 2006, it will be like defending one’s doctorate.)

So, what is this body that now has the resolution of Mexico’s electoral dispute in its hands? It is a judicial body of last resort, charged with resolving election disputes and nothing else. Its Higher Chamber (Sala Superior) consists of seven magistrates who serve ten-year terms, expiring this October. (There are also five regional Salas of three members each.)

The terms of TEPJF magistrates are non-renewable. The body was established by the 1996 electoral reform (a constitutional amendment), and its members are elected by two-thirds vote of the Senate, from a terna, or list of three names (per vacancy), presented by the Supreme Court. (The Supreme Court justices themselves, since another constitutional reform in 1994, are also elected by a two-thirds vote of the Senate from a terna sent by the President, and serve for fifteen-year, non-renewable terms.)

The first TEPJ Sala Superior (which thus is the current one) was actually required to be elected by three fouths of the Senate, and in fact, all votes on these magistrates were unanimous.

In other words, the upcoming case is no Bush v. Gore.

Additional notes:

El Universal has a short profile of each magistrate. Some are career judges, others are academic law professors.

The TEPJF itself has an English-language page that explains its role and also offers profiles of the magistrates.

It is worth noting that the Tribunal is sometimes referred to as the “TRIFE,” after the name of the tribunal that was in place in the early 1990s. The older acronym, often written Trife, is still used, presumably because “Tepjf” is not pronounceable!

USSC this week

UPDATE: Thanks to Steven for noting (in a PoliBlog scion grafted below) that the Democratic majority of the House delegation from Texas after 2002 was actually a reversal of the electoral majority. Republicans had 53% of the statewide votes, yet only 47% of the Texas House seats. In that sense, indeed, the 2004 outcome, despite being almost 2:1 Republican, is a more accurate reflection of the votes (58-39, or about 1.5:1 R). So, the old plan was fundamentally flawed and should have been thrown out. Nonetheless, the real thrust of my argument in this post (and as amplified in my comment below in response to Steven) was not that one partisan gerrymander was worse than another. Procedurally, the two Texas districting plans were equally bad, even if the more recent one is actually less substantively flawed. Rather, my argument was, and is, that the more recent one in Texas has the potential effect of protecting a precarious right-wing House majority from adverse national vote swings, and that was clearly its intention. And a right-wing majority on the Supreme Court has said that is just fine. Partisan assignment of voters to districts, and partisan adjudication of the process. It’s a travesty of democracy.

I don’t want to let the attention given to the Bush administration’s apparent defeat in the Hamdan case completely drown out the far more important victories that opponents of democratization and electoral reform won in two earlier Supreme Court decisions in the past week.

The other two cases both affect the fariness of elections, and thus the essence of democracy itself. They are, in that sense, vastly more fundamental than the question of military tribunals–which the executive may find ways to continue anyway–important though the latter issue is.

The striking thing about the two election-related decisions is that in one case the Court overruled a state legislature and in the other it upheld one. Thus there is no common federalism or states-rights thread here. The Court said that the legislature in Vermont over-stepped its authority in limiting campaign contributions, and thereby accepted the principle that the wealthy have “freer” speech than the rest of us. In the Texas redistricting case, on the other hand, it said that it is perfectly all right for a state legislature to produce a partisan-biased districting plan–even mid-census–and thus further entrenched the principle that politicians should choose their voters rather than the other way around.

It is obvious that the Texas legislature’s act has far more impact on those of us outside of the state in question than does the Vermont act. The Republican party would not have gained seats in 2004, despite losing votes relative to 2002 (and falling below 50%), had it not been for the Delaymandered districts in Texas. Thus the actions of the Texas legislature not only affect the representation of all Texans (something which the archaic theory of democracy apparently still prevailing in this land might permit) but ultimately affect the representation of all of us (something no theory of democracy ought to admit).

The now-overturned Vermont law, on the other hand, would have limited impact on those of outside Vermont. Sure, if it were to spread nationwide–beyond the friendly confines of the home of Bernie Sanders and Howard Dean–it would have dramatic impact, to the immense benefit of ordinary voters. The Court nipped that in the bud.

The common thread of these two cases is support for the further entrenchment of right-wing political forces in this country. If there was any doubt that the US Supreme Court is continuing to assert its role as a bulwark against the advance of democratic representation, these cases should lay such doubt to rest. It did not matter whether the justices had to act to uphold or overturn a state decision; what mattered was acting to buttress the power of those who already have it.

Regarding the Hamdan case, I can’t help but wonder if Bush-Cheney will find a way to defy or override the very institution without which they would not have had their first term in order to continue prosecuting–as they alone see fit–the “war” on which they won their second.

Balkinization has an interesting take on how the government may respond:

So what the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.

…by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion. [emphasis in original]

Would that the Court really would force democracy, but that’s a fantasy. Nonetheless, Balkin makes a very important observation about putting the whole issue back in the hands of Congress. Is the issue of oversight of the “war” on “terror” something that will make the Party of Power sufficiently squeamish in an election year that they will not act to effectively reverse the Hamdan decision? Or will the Democrats be the squeamish ones, with the Party of Power holding yet another issue with which to drive home the claim of their own indispensibility in keeping us “safe”? The Court, with Hamdan, may have handed down a third decision in one week that will assist the right electorally.

Note: The link to the Balkinization post is actually a link to the blog itself, because when I tried it, the post permalink was not working.

Now she speaks

Retired Justice Sandra Day O’Connor is worried about “dictatorship.” Her remarks at an event at Georgetown were reported by Nina Totenberg and posted at Raw Story.

In an unusually forceful and forthright speech, O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms.

…she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year…


It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement…

O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges.

And now the punch-line:

Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

So, do you suppose she regrets joining the coup?

h/t Michael J.W. Stickings

Supreme Court nominee faces legislators

For the first time in Canadian history, the government’s choice to fill a vacancy on the Supreme Court, Judge Marshall Rothstein, faced questioning by a legislative committee.

New Prime Minister Stephen Harper, leading Canada’s new Conservative minority government, is on the record believing judges have assumed too much power over public-policy decisions, and had pledged to institute a public hearing for court appointees.

So, this means Canada is instituting judicial-appointment procedures like those of its neighbor to the south, right? Hardly.

Although Rothstein was originally appointed to the Federal Court in 1992 by Brian Mulroney, a Tory Prime Minister, he was later elevated to the Federal Court of Appeal by Jean Chrétien, a Liberal. More importantly, he was already on the short list of Supreme Court nominees assembled by outgoing Liberal Prime Minister Paul Martin.

In other words, unlike in the United States, a ‘conservative’ chief executive is not asserting a right to appoint partisans to the highest court. This is a consensual nominee.

The hearing was before an ad hoc committee of the lower house, rather than a standing committee of the upper house, as in the USA.

Another aspect that is different from the USA is the nominee’s age, 65. When, like the current US executive, you are packing the court with your partisans, you want your appointees to be relatively young. A more common practice in parliamentary systems, on the other hand, is to appoint relatively more senior judges to the highest court. Being older, they have a clear track record, they will not serve long (in fact, Canada has a mandatory retirement age of 75), and there is less chance that the Court will fall far behind shifting popular sentiment, as reflected in the democratic process.

On that latter point, Rothstein said in his hearing:

The important thing is that judges, when applying the Charter, have to have recognition that the statute that they’re dealing with was passed by a democratically elected legislature … and therefore they have to approach the matter with some restraint.

Of course, Alito said similar things. But no one who has been paying attention should see Alito’s remarks as anything other than a ruse.

Past Canadian practice has been for appointments to be simply by cabinet decree, with no public scrutiny. Harper’s innovation–taking a senior judge who has been vetted by both major parties, and having him answer questions in the lower house of the legislature–is a remarkably sane way to appoint a Supreme Court justice.

Gore on the constitutional crisis

Al Gore’s speech from January 16 is long, but powerful. Highly recommended. And, no, it is not a coincidence that I read it and am posting it at the very moment when Gore’s opponent in the 2000 case before the Supreme Court is speaking–and on the very day when the vaunted “swing vote” on that Court was replaced with an adherent to the doctrine of executive unilateralism. None of this is a coincidence.

Predicting the Alito vote

Go to Keeth Poole’s Voteview and scroll down to the link for “recent politics.”

The short story is that the predicted vote is 56-44. And, yes, alas, that is in favor, but note that it would be a closer vote than many of the early reported whip counts implied (60+ in favor). And, as one of the contributors to the project said to me in private communication, the closer the vote is to party-line, the less interesting is the enterprise of predicting the ultimate vote based on early announcements and knowledge of senators’ spatial-voting record! For Roberts, the model predicted 69 votes. He got 78. Eleven senators were wrongly predicted, which is not bad. The prediction for Alito is likely to be even more accurate, I suspect.

They also have a prediction for Monday’s cloture vote: 67-33.

My previous plantings and rantings can be found at my page of excerpts and links to posts on the three recent Supreme Court justice nominations.

Let us bork

[NOTE: I have several posts on Alito, and all of them may be viewed on one page by going to my judiciary subdomain. ]

I wholeheartedly endorse the remarks by Scott Lemieux on Sunday (in part, reiterating an earlier post of his); emphasis is mine:

First of all, Bush nominated Alito as opposed to many other well-qualified candidates because he is an exceptionally reactionary judge, and the Senate can take this into account just as much as the President can. Continue reading

Alito and the “unitary executive”: The Latin Americanization of the US Constitution?

From today’s LA Times:

This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.

As well it should. I noted a few days ago that Alito has been on record since 1986 as favoring signing statements as a means by which the President could seek to have the courts accept the President’s understanding of a law in future litigation over that law. Courts have tended not to take such statements into account, but if a fan of signing statements were on the Supreme Court, he might seek to raise their prominence.

So, if 1986 seems too long ago, there is this statement from November, 2000, before the Federalist Society, reflecting on his time in the Reagan administration’s Justice Department:

We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.

The Times then notes that,

In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.

In combination, the support for signing statements and opposition to independent regulatory agencies constitute a theory of executive power in which the legislature only makes broad pronouncments of policy, which a single man (or, theoretically, woman) then can reshape. In the absence of independent agencies and with sympathetic justices on the highest court, the President could issue decrees to bureaucrats to implement a law in a way consistent with the Presidential signing statement, and expect the courts to back up the executive’s re-interpretation of the legislative mandate.

In other words, in Alito we have a potential Supreme Court justice who believes that the United States would be better if we had a more Latin American style presidency: One that has much more than a veto, but instead has the constitutional right to implement laws as it sees fit.

Among my research specialties are comparative presidential authority and executive-legislative relations. I have long believed, as a product of my research, that Latin American countries need their congresses to assert more authority over the details of policy-making and create more independent agencies to check executive unilateralism in implementation.

In other words, for all my zeal for reform of certain features of US political institutions–see “the core” list on the left sidebar and “The Mission” above–in terms of executive powers I have long seen the US as the model that other “pure”* presidential systems should emulate.

Apparently, Alito believes the best models of presidentialism are to be found farther south. That is disturbing. The United States Senate–hardly my favorite US institution–needs to force the President to nominate option no. 3 for the critical O’Connor seat on the United States Supreme Court.

*I.e., “pure” in the sense of being unitary at the top: President as head of government as well as head of state, as opposed to “semi-” presidential hybrids, in which the head of government is subject to the confidence of the majority of the lower/sole house of the legislature. The latter is a still-better model, in my view.

Alito and presidential signing statements

Just yesterday I posted a note and some questions on Bush’s recent signing statement, in which he reinterprets a ban on torture as not meaning what it says. Now I ran across a Washington Post article from yesterday that notes that Associate Justice nominee Samuel Alito is a fan of signing statements.

In a memo from February 5, 1986, Alito outlined a strategy for

having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such “interpretive signing statements” would be a significant departure from run-of-the-mill bill signing pronouncements, which are “often little more than a press release,” Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”

“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote.

The quote from Alito’s memo is remarkable. While it is true that the President’s approval is “just as important as that of the House or Senate” inasmuch as all three institutions must consent to the same text of a bill (ignoring bills passed over a veto), it does not follow from that fact that the “president’s understanding of the bill should be just as important.” Congress consists of two chambers, numerous members, and committees. It debates alternate versions, strikes amendments, and replaces provisions. It thus has a lengthy record of why it approved one version and not others that were considered. However, under our constitution, the President is provided a take it or leave it option. If he does not like the bill, he can veto it, and thus re-start the transactional process, leading–maybe–to a new bill emerging from Congress that he’ll like better. But there is no such thing as sign light–taking this provision, blocking that, and reinterpreting others. Many presidential systems give the president such authority, thereby inserting the president more directly into the lawmaking process. But not ours. (I expand this idea a bit in a comment at Lawyers, Guns, and Money.)

The Post article quotes from an article by Phillip J. Cooper in the September, 2005, Presidential Studies Quarterly (now added to my must-read list), noting that the Bush administration

has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.

This adds another item to the list of reasons why Alito should be given a very long and skeptical look by the US Senate in exercise of its constitutional power of advice and consent, two of which I have identified here previously:

Alito and wiretapping

From the Dec. 24 LA Times:

Supreme Court nominee Samuel A. Alito Jr. said in a 1984 memo that he believed the president’s top lawyer should be shielded from being sued for approving illegal, warrantless wiretaps on the grounds of national security, an issue that has flared anew and could complicate his Senate confirmation next month.

I wonder what, if any, effect this will have on his confirmation chances.