Long before the cell phone era, Michael Lee Smith was convicted of robbery because he made the mistake of calling his victim from his home for days after. Police in Maryland got the telephone company to use a pen register — a device for recording the numbers called from a specific telephone — to confirm Smith’s calls. That information eventually led to Smith’s identification and conviction.
On appeal, Smith argued that police violated his Fourth Amendment rights by conducting a warrantless search of his phone calls. By a 5-3 vote, the Supreme Court in Smith v. Maryland (1979) rejected his argument. For the majority, Justice Harry A. Blackmun reasoned that phone users have no expectation of privacy — certainly no reasonable expectation of privacy — in the telephone numbers they dial because they voluntarily provide that information to the phone company to make the calls.
Dissenting justices disagreed. “Privacy is not a discrete commodity, possessed absolutely or not at all,” Justice Thurgood Marshall wrote. “Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
Three decades later, the majority view in Smith remains black-letter law. It explains why police can search your garbage cans, ask a bank for your financial records, or track you down by your cell phone calls – all without a search warrant or anything more than a hunch. But in an important and somewhat overlooked opinion last week [Jan. 23], Justice Sonia Sotomayor urged that this doctrine be reconsidered because it makes no sense (if it ever did) in the digital era.
Sotomayor voiced her view in a concurring opinion in the closely watched case testing the ability of police to use global positioning system (GPS) devices for long-term surveillance of suspects. The court’s unanimous decision in United States v. Jones reversed the drug-trafficking conviction of a Washington, D.C., nightclub owner, Antoine Jones, who was nabbed after a GPS tracking device followed his car to a drug warehouse.
Jones’s good fortune stemmed from a mistake by the joint local-FBI task force working the case. Police got a search warrant to attach the device to Jones’s car, but the warrant was good for 10 days and only in the District of Columbia. Police placed the small device on Jones’s car on the 11th day while it was parked in Maryland. The slip-up forced federal prosecutors to defend the conviction on the premise that police had no valid search warrant.
Judicial concern about high-tech surveillance extended across the ideological spectrum. In oral arguments, Chief Justice John G. Roberts Jr. asked whether police could attach a GPS device to the justices’ cars; Justice Anthony M. Kennedy wondered about surreptitiously stuffing a GPS device into a man’s suit coat. Justice Ruth Bader Ginsburg said the government seemed to be arguing that anyone could be surveilled as soon as one stepped out of one's house.
In the end, all the justices agreed on reversing Jones’s conviction, but they split into two camps on the rationale. Writing for a five-vote majority, Justice Antonin Scalia said the government’s trespass onto Jones’s car for the purpose of gathering information amounted to a search. The Framers would have thought so too, he said. An odd gathering of four justices — the conservative Samuel A. Alito Jr. leading liberals Ginsburg, Stephen G. Breyer, and Elena Kagan— said the government had entrenched on Jones’s reasonable expectation of privacy. Sotomayor joined Scalia’s opinion, but said she agreed with Alito’s too.
The decision drew immediate cheers from civil libertarians. Catherine Crump, director of the ACLU’s speech, technology, and privacy project, said the ruling was “a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.” Jones’s appellate lawyer, the former U.S. solicitor general Walter Dellinger, said the ruling meant that “almost any” law enforcement of GPS surveillance would be questionable without a warrant.
Over time, caution was heard. Tom Goldstein, Supreme Court advocate and publisher of SCOTUSblog, noted that the majority did not state whether – or under what circumstances — a warrant would be required. Warrantless searches are permitted, of course, at times — for example, in an emergency. Goldstein suggested the ruling would have little impact on law enforcement, at least for shorter surveillance. And from a separate perspective he depicted Alito’s opinion as only scratching the surface of the hard question of defining “reasonable expectations of privacy” in the 21st century.
If both main opinions skirted hard questions, Sotomayor took on a harder task by rethinking whether one gives up privacy rights by "voluntarily” disclosing information to third parties. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote.
The Facebook era, of course, has redefined privacy in our social relationships, but that does not mean that every cell phone user, every on-line bank customer, or every Internet surfer has willingly exposed every phone call, every bill-pay, and every Web site visit to government monitoring. Sotomayor may have been a lone voice in raising the issue last week, but her opinion is a clarion call for the Supreme Court to rediscover and redefine privacy in the digital age.
Sunday, January 29, 2012
Monday, January 23, 2012
Alabama's Backwater of Justice in Death Cases
Some 80 years ago, a citizens’ posse in Alabama hauled nine black teenagers off a railroad car and turned them over to authorities to be charged with raping two white girls. The Scottsboro Boys, as they came to be known, were convicted and all but one of them sentenced to death after a series of trials with inadequate legal representation and conducted in a mob atmosphere.
Well before the due process revolution, the Supreme Court could not countenance the product of Alabama’s criminal injustice system — even with four doggedly conservative members. Twice, the court ordered new trials, first because of the lack of effective legal representation and then because of the systematic exclusion of African Americans from juries. Even after one of the accusers retracted the charges, four were convicted in a third trial. Alabama courts to the contrary notwithstanding, history now judges them to have been innocent.
Today, Alabama remains a backwater of justice in death penalty cases. But last week [Jan. 18], the Supreme Court — once again with four doggedly conservative justices – gave an Alabama death row inmate a limited reprieve. The court’s 7-2 decision in Maples v. Thomas gives Cory Maples a second chance, despite Alabama’s strenuous opposition, to show that he was convicted and sentenced to death only after being denied his Sixth Amendment right to effective assistance of counsel.
Maples’ conviction and sentence are products of Alabama policies that give indigent defendants in capital cases only the bare rudiments of a legal defense. Court-appointed lawyers for indigent defendants need nothing more than five years’ experience in criminal cases. They need not have handled a capital case before, and they do not have to undergo any training in the special procedural rules for capital cases.
Until 1999, court-appointed attorneys were paid only $40 an hour in the courtroom and $20 an hour out of court, with a $1,000 cap on out-of-court work. The cap was removed in 1999, and pay raised — but only to $70 an hour for work in or out of the courtroom.
With capital defense so constrained, Alabama unsurprisingly ranks high in the number of executions since capital punishment was restored in 1976: sixth among the states with 53 executions. And the state ranks fifth in the nation in the number of inmates currently facing death sentences, with 206 prisoners on death row. More than two-thirds of them were sentenced before the modest rise in indigent defense compensation in 1999.
Alabama is also one of the few states that does not guarantee representation to indigent capital defendants in postconviction proceedings. Death row inmates must look to volunteer lawyers for help, often to young lawyers performing pro bono service at big, out-of-state law firms.
Maples was charged with killing two friends in 1997 while out on the town with them. He was represented at trial by two court-appointed attorneys. Only one had ever tried a death penalty case, and he had not taken the prior case through a penalty phase hearing. Maples was convicted and sentenced to death, and his conviction and sentence were upheld on appeal.
Maples then filed a petition for postconviction relief in state court based on ineffective assistance at counsel, represented in the proceeding by two young lawyers from the New York firm of Sullivan & Cromwell: Jaasai Munanka and Clara Ingen-Housz. Predictably, an Alabama judge denied Maples’ plea. The court clerk’s office mailed notice of the decision to the two New York lawyers and to the Alabama lawyer who agreed to serve as local counsel as long as he did not have to actually work on the case.
Now, Maples fell victim to what Justice Samuel A. Alito Jr. called in a concurring opinion “a veritable perfect storm of misfortune” that caused him to miss the deadline for appealing the decision through no fault of his own. Munanka and Ingen-Housz had left Sullivan & Cromwell, but failed to notify Maples, the local lawyer, or the Alabama trial court of their move. The Sullivan & Cromwell mail room returned the notice to the court clerk, unopened. The local lawyer ignored it, assuming that the New York lawyers were still on the case. The court clerk did not attempt to find Munanka or Ingen-Housz.
With the deadline missed, the state appellate court dismissed Maples’ appeal. In urging dismissal, the state’s attorney said that Maples could still file a federal habeas corpus petition. But when he did, the state’s lawyers said that federal courts should dismiss the petition because of his “procedural default.” As Justice Ruth Bader Ginsburg noted in her majority opinion, there was “some tension” between the state’s two positions.
Ginsburg led six other justices, including Alito and fellow conservative Chief Justice John G. Roberts Jr., in concluding that Maples was entitled to an appeal because he had been abandoned by his lawyers. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” she wrote. Perhaps not, but Justices Antonin Scalia and Clarence Thomas would have. Alabama was entitled “to stand on its rights,” Scalia wrote, “and enforce a habeas petitioner’s procedural default even when counsel is to blame.”
Maples now gets a chance to argue his Sixth Amendment claim before a federal judge, who will have no vested interest in excusing Alabama’s record in indigent capital defense. As Ginsburg suggested, a just system — but not Alabama — would give Maples at least that much.
Well before the due process revolution, the Supreme Court could not countenance the product of Alabama’s criminal injustice system — even with four doggedly conservative members. Twice, the court ordered new trials, first because of the lack of effective legal representation and then because of the systematic exclusion of African Americans from juries. Even after one of the accusers retracted the charges, four were convicted in a third trial. Alabama courts to the contrary notwithstanding, history now judges them to have been innocent.
Today, Alabama remains a backwater of justice in death penalty cases. But last week [Jan. 18], the Supreme Court — once again with four doggedly conservative justices – gave an Alabama death row inmate a limited reprieve. The court’s 7-2 decision in Maples v. Thomas gives Cory Maples a second chance, despite Alabama’s strenuous opposition, to show that he was convicted and sentenced to death only after being denied his Sixth Amendment right to effective assistance of counsel.
Maples’ conviction and sentence are products of Alabama policies that give indigent defendants in capital cases only the bare rudiments of a legal defense. Court-appointed lawyers for indigent defendants need nothing more than five years’ experience in criminal cases. They need not have handled a capital case before, and they do not have to undergo any training in the special procedural rules for capital cases.
Until 1999, court-appointed attorneys were paid only $40 an hour in the courtroom and $20 an hour out of court, with a $1,000 cap on out-of-court work. The cap was removed in 1999, and pay raised — but only to $70 an hour for work in or out of the courtroom.
With capital defense so constrained, Alabama unsurprisingly ranks high in the number of executions since capital punishment was restored in 1976: sixth among the states with 53 executions. And the state ranks fifth in the nation in the number of inmates currently facing death sentences, with 206 prisoners on death row. More than two-thirds of them were sentenced before the modest rise in indigent defense compensation in 1999.
Alabama is also one of the few states that does not guarantee representation to indigent capital defendants in postconviction proceedings. Death row inmates must look to volunteer lawyers for help, often to young lawyers performing pro bono service at big, out-of-state law firms.
Maples was charged with killing two friends in 1997 while out on the town with them. He was represented at trial by two court-appointed attorneys. Only one had ever tried a death penalty case, and he had not taken the prior case through a penalty phase hearing. Maples was convicted and sentenced to death, and his conviction and sentence were upheld on appeal.
Maples then filed a petition for postconviction relief in state court based on ineffective assistance at counsel, represented in the proceeding by two young lawyers from the New York firm of Sullivan & Cromwell: Jaasai Munanka and Clara Ingen-Housz. Predictably, an Alabama judge denied Maples’ plea. The court clerk’s office mailed notice of the decision to the two New York lawyers and to the Alabama lawyer who agreed to serve as local counsel as long as he did not have to actually work on the case.
Now, Maples fell victim to what Justice Samuel A. Alito Jr. called in a concurring opinion “a veritable perfect storm of misfortune” that caused him to miss the deadline for appealing the decision through no fault of his own. Munanka and Ingen-Housz had left Sullivan & Cromwell, but failed to notify Maples, the local lawyer, or the Alabama trial court of their move. The Sullivan & Cromwell mail room returned the notice to the court clerk, unopened. The local lawyer ignored it, assuming that the New York lawyers were still on the case. The court clerk did not attempt to find Munanka or Ingen-Housz.
With the deadline missed, the state appellate court dismissed Maples’ appeal. In urging dismissal, the state’s attorney said that Maples could still file a federal habeas corpus petition. But when he did, the state’s lawyers said that federal courts should dismiss the petition because of his “procedural default.” As Justice Ruth Bader Ginsburg noted in her majority opinion, there was “some tension” between the state’s two positions.
Ginsburg led six other justices, including Alito and fellow conservative Chief Justice John G. Roberts Jr., in concluding that Maples was entitled to an appeal because he had been abandoned by his lawyers. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” she wrote. Perhaps not, but Justices Antonin Scalia and Clarence Thomas would have. Alabama was entitled “to stand on its rights,” Scalia wrote, “and enforce a habeas petitioner’s procedural default even when counsel is to blame.”
Maples now gets a chance to argue his Sixth Amendment claim before a federal judge, who will have no vested interest in excusing Alabama’s record in indigent capital defense. As Ginsburg suggested, a just system — but not Alabama — would give Maples at least that much.
Tuesday, January 17, 2012
Religious Freedom Ruling a Land Mine for Equal Rights
A school fires a teacher when she tries to return to her job after having taken a medical leave for a doctor-diagnosed disability. That sounds like a violation of the federal Americans With Disabilities Act, which requires employers to make “reasonable accommodations” for individuals with physical or mental disabilities.
Apparently not, however, if the school is church-sponsored and the elementary-grade teacher’s duties include presiding over daily religious exercises. At least, that is the import of the Supreme Court’s unanimous decision last week [Jan. 12] recognizing a “ministerial exception” for religious organizations to anti-discrimination laws.
The court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is being hailed as the most important religious freedom ruling in decades. But the ruling, written in freedom-triumphant language by Chief Justice John G. Roberts Jr., is also a potential land mine for civil rights, overly deferential to religious groups and highly susceptible to abuse.
The case began in January 2005 after Cheryl Perich asked to return to her job at a small, K-8 school in Redford, Mich., run by the Hosanna-Tabor Evangelical Lutheran Church. Perich had taught there since 1999 — satisfactorily, it appears. But she took a medical leave after falling ill in June 2004 with what was later diagnosed as narcolepsy, a disabling condition characterized, as the court later put it, by “sudden and deep sleeps from which she could not be aroused.”
By January 2005, Perich felt well enough to return to work. When she notified principal Stacey Hoeft of her plan, however, she was told that the school had hired a lay teacher for the position. Hoeft also expressed concern that Perich was not ready to return to the classroom. School administrators told the church congregation of the decision a few days later, and the congregation voted to offer Perich a “peaceful release” from the job (and partial health benefits) if she would resign.
Perich refused to resign and instead reported to the school on Feb. 22, armed with a letter from her doctor clearing her for work. Hoeft told her to leave; Perich first asked for documentation that she had shown up ready to teach. Hoeft called Perich that afternoon to say she would likely be fired. Perich told Hoeft she had consulted with a lawyer. The school board voted the next day to reconsider Perich’s employment because of her “regrettable” actions. Two months later, the congregation formally voted to fire Perich based on “insubordination and disruptive behavior” and the damage she had done to the “working relationship” by “threatening to take legal action.”
The Equal Employment Opportunity Commission (EEOC) took up Perich’s case and sued for reinstatement and back pay. The church responded by claiming a religious-based exemption. Perich, a Lutheran, had sought and accepted the church’s “call” to her position and designation as a “commissioned minister,” the church noted. She taught a religion class and also led her class in daily prayer and devotional exercises.
The federal district court judge ruled for the church, but the Sixth U.S. Circuit Court of Appeals disagreed. The appeals court recognized a ministerial exception, but said it did not apply to Perich’s case because her duties were substantially the same as those for the school’s lay teachers.
Given the unanimity in lower courts, the Supreme Court’s decision to recognize a ministerial exception was perhaps unsurprising. “The Establishment Clause prevents the Government from appointing ministers,” Roberts wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” He went on to credit the church’s contention that Perich was the equivalent of a minister. Perich’s specifically religious duties may have been minimal, Roberts said, but the issue “is not one that can be resolved by a stopwatch.”
The multifactor test outlined by Roberts stops short of the church’s view, adopted in a concurrence by Justice Clarence Thomas, that courts should simply defer to a religious group’s view of the ministerial nature of a position. Still, the ruling gives parochial schools plenty of room to define teachers’ roles broadly and leave them outside the protection of civil rights laws.
Most troublingly, the Supreme Court accepted Hosanna-Tabor’s depiction of its dispute with Perich as based on church doctrine. The back and forth between Perich and school authorities was the ordinary stuff of civil rights law: an employer reluctant to follow the law who retaliates after the employee’s resort to legal action. Not until the case went to court did Hosanna-Tabor begin arguing that devout Lutherans do not go to court, but settle any disputes within the church.
In its briefs, the government argued that religious groups cannot be allowed to opt out of the secular legal system. Religious organizations that deal with sexual abuse by clergy darkly warned that a ruling for Hosanna-Tabor would allow religious organizations — think, the Roman Catholic Church — to retaliate against internal whistleblowers. Roberts said the court could deal with cases like that “if and when they arise.”
Roberts rightly trumpets the nation’s commitment to religious freedom, but the court in other cases has been more nuanced in protecting it. Today, the nation is equally committed to protecting equal rights. Cheryl Perich may rightly wonder whether a better accommodation of the two could have been found in her case.
Apparently not, however, if the school is church-sponsored and the elementary-grade teacher’s duties include presiding over daily religious exercises. At least, that is the import of the Supreme Court’s unanimous decision last week [Jan. 12] recognizing a “ministerial exception” for religious organizations to anti-discrimination laws.
The court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is being hailed as the most important religious freedom ruling in decades. But the ruling, written in freedom-triumphant language by Chief Justice John G. Roberts Jr., is also a potential land mine for civil rights, overly deferential to religious groups and highly susceptible to abuse.
The case began in January 2005 after Cheryl Perich asked to return to her job at a small, K-8 school in Redford, Mich., run by the Hosanna-Tabor Evangelical Lutheran Church. Perich had taught there since 1999 — satisfactorily, it appears. But she took a medical leave after falling ill in June 2004 with what was later diagnosed as narcolepsy, a disabling condition characterized, as the court later put it, by “sudden and deep sleeps from which she could not be aroused.”
By January 2005, Perich felt well enough to return to work. When she notified principal Stacey Hoeft of her plan, however, she was told that the school had hired a lay teacher for the position. Hoeft also expressed concern that Perich was not ready to return to the classroom. School administrators told the church congregation of the decision a few days later, and the congregation voted to offer Perich a “peaceful release” from the job (and partial health benefits) if she would resign.
Perich refused to resign and instead reported to the school on Feb. 22, armed with a letter from her doctor clearing her for work. Hoeft told her to leave; Perich first asked for documentation that she had shown up ready to teach. Hoeft called Perich that afternoon to say she would likely be fired. Perich told Hoeft she had consulted with a lawyer. The school board voted the next day to reconsider Perich’s employment because of her “regrettable” actions. Two months later, the congregation formally voted to fire Perich based on “insubordination and disruptive behavior” and the damage she had done to the “working relationship” by “threatening to take legal action.”
The Equal Employment Opportunity Commission (EEOC) took up Perich’s case and sued for reinstatement and back pay. The church responded by claiming a religious-based exemption. Perich, a Lutheran, had sought and accepted the church’s “call” to her position and designation as a “commissioned minister,” the church noted. She taught a religion class and also led her class in daily prayer and devotional exercises.
The federal district court judge ruled for the church, but the Sixth U.S. Circuit Court of Appeals disagreed. The appeals court recognized a ministerial exception, but said it did not apply to Perich’s case because her duties were substantially the same as those for the school’s lay teachers.
Given the unanimity in lower courts, the Supreme Court’s decision to recognize a ministerial exception was perhaps unsurprising. “The Establishment Clause prevents the Government from appointing ministers,” Roberts wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” He went on to credit the church’s contention that Perich was the equivalent of a minister. Perich’s specifically religious duties may have been minimal, Roberts said, but the issue “is not one that can be resolved by a stopwatch.”
The multifactor test outlined by Roberts stops short of the church’s view, adopted in a concurrence by Justice Clarence Thomas, that courts should simply defer to a religious group’s view of the ministerial nature of a position. Still, the ruling gives parochial schools plenty of room to define teachers’ roles broadly and leave them outside the protection of civil rights laws.
Most troublingly, the Supreme Court accepted Hosanna-Tabor’s depiction of its dispute with Perich as based on church doctrine. The back and forth between Perich and school authorities was the ordinary stuff of civil rights law: an employer reluctant to follow the law who retaliates after the employee’s resort to legal action. Not until the case went to court did Hosanna-Tabor begin arguing that devout Lutherans do not go to court, but settle any disputes within the church.
In its briefs, the government argued that religious groups cannot be allowed to opt out of the secular legal system. Religious organizations that deal with sexual abuse by clergy darkly warned that a ruling for Hosanna-Tabor would allow religious organizations — think, the Roman Catholic Church — to retaliate against internal whistleblowers. Roberts said the court could deal with cases like that “if and when they arise.”
Roberts rightly trumpets the nation’s commitment to religious freedom, but the court in other cases has been more nuanced in protecting it. Today, the nation is equally committed to protecting equal rights. Cheryl Perich may rightly wonder whether a better accommodation of the two could have been found in her case.
Monday, January 9, 2012
Don't Count on Candor From Supreme Court Nominees
When John Marshall Harlan appeared before the Senate Judiciary Committee in 1955 for confirmation to the Supreme Court, Sen. James Eastland, the race-baiting Mississippi Democrat, wanted to ask about the court’s still new school desegregation decision. But no matter how Eastland phrased the question, Harlan was giving no hints about his views on the ruling. “I should not be asked to forecast how I will decide cases when they arise before me,” Harlan said.
Two years later, William J. Brennan Jr. was pressed for his views on the legal status of the Communist Party from Sen. Joseph McCarthy, the red-baiting Wisconsin Republican. Brennan — like Harlan before him, already serving on the court under a recess appointment — similarly resisted being pinned down. “I simply cannot venture any comment whatever that touches upon any matter pending before the court,” Brennan said.
The Harlan and Brennan hearings, recalled in a new law journal article by political scientists Dion Farganis and Justin Wedeking, mark the beginning of the modern Supreme Court confirmation process. Not until the 1950s did it become standard practice for Supreme Court nominees to appear in person before the Senate Judiciary Committee for a confirmation hearing. Indeed, the Senate held no committee hearings at all until the nomination of Louis Brandeis in 1916 — and Brandeis did not himself testify in a hearing that featured sharp criticism of his progressive views.
Today, the Supreme Court confirmation process is widely criticized — indeed, mocked — as a meaningless charade. Back when he chaired the Senate Judiciary Committee, Joe Biden famously described confirmation hearings as “a Kabuki dance.” In the critics’ view, every nominee since Robert Bork’s ill-fated candor in 1987 has taken shelter in judicial ethics to turn aside any effort to learn his or her views on legal issues. “No hints, no forecasts, no previews,” Ruth Bader Ginsburg said in her opening statement in 1993.
The critique seems to assume some golden age of Supreme Court confirmations when nominees answered senators’ questions freely, giving them all the information they needed for knowledgeable votes. Farganis, a professor at Elon University in North Carolina, and Wedeking, a professor at the University of Kentucky, demonstrate in their article in Law and Society Review that the idea of the once fully forthcoming confirmation hearing is largely myth — some truth to it, but no more than some.
The researchers took on the monumental task of reading and encoding all of the confirmation hearings from Harlan through the most recent: Bush nominees John G. Roberts Jr. and Samuel A. Alito Jr. and Obama nominees Sonia Sotomayor and Elena Kagan. Nominees’ answers were categorized and then counted as “fully forthcoming,” “qualified,” “not forthcoming,” or non-responsive (“non-answer”).
The numbers confirm some decline in candor since the Bork hearings, though the very next nominee — Anthony M. Kennedy — was among the most forthcoming. But Farganis and Wedeking attribute the relatively slight decline in candor to another, even stronger trend: the increasing number of questions from senators touching on the nominees’ personal views.
Beyond the researchers’ numbers, the senators’ increased inquisitiveness can be seen quite dramatically in a law library with the printed volumes of confirmation hearings. The Harlan and Brennan hearings are printed along with four others in a single volume. The Bork hearings mark the beginning of multi-volume hearings. Bork’s spans seven volumes; two decades later, Roberts’s confirmation hearing fills eight volumes, Alito’s 10.
Some of the hearing records’ length stems from outside witnesses, but the nominee now routinely spends more time in the witness chair than in the past. The hearing for Charles Whittaker in 1957 was so perfunctory that a former Supreme Court law clerk, the future chief justice William H. Rehnquist, was prompted to write a law review article critical of the confirmation process. Byron R. White was asked six, non-challenging questions in 1962.
The court — and the confirmation process — became more politicized in the 1960s. Senators asked more and more questions, more and more confrontational — arguably fulfilling their constitutional duty to determine whether to render their “advice and consent” to the president’s choice. Equally, however, the nominee has some obligation to the judicial oath he or she hopes to take not to prejudge the issues that are to come before the court. The Supreme Court nominee’s pledge card is necessarily limited to a promise to endeavor to decide cases fairly and impartially on the basis of the evidence and the law.
This restriction does not mean that the confirmation hearings are useless. No one reviewing the confirmation testimony of Ginsburg or Stephen G. Breyer could be surprised by their moderately liberal records on the court. Both, for example, strongly endorsed the existing constitutional precedents on abortion rights. By contrast, the qualified responses that Roberts and Alito gave on Roe v. Wade foreshadowed the position they took only one term later to uphold a federal ban on so-called partial birth abortions in a decision that undercut one of Roe’s major premises.
As with democratic government itself, the process is not perfect. But the process gives senators enough information to make a meaningful choice whether to confirm a nominee or not. Senators can probe; nominees can duck. And the justice who seemingly departs from his or her confirmation statements can at least be held accountable in the court of public opinion. Critics who find this unsatisfactory yearn for some ideal that cannot exist — and never has.
Two years later, William J. Brennan Jr. was pressed for his views on the legal status of the Communist Party from Sen. Joseph McCarthy, the red-baiting Wisconsin Republican. Brennan — like Harlan before him, already serving on the court under a recess appointment — similarly resisted being pinned down. “I simply cannot venture any comment whatever that touches upon any matter pending before the court,” Brennan said.
The Harlan and Brennan hearings, recalled in a new law journal article by political scientists Dion Farganis and Justin Wedeking, mark the beginning of the modern Supreme Court confirmation process. Not until the 1950s did it become standard practice for Supreme Court nominees to appear in person before the Senate Judiciary Committee for a confirmation hearing. Indeed, the Senate held no committee hearings at all until the nomination of Louis Brandeis in 1916 — and Brandeis did not himself testify in a hearing that featured sharp criticism of his progressive views.
Today, the Supreme Court confirmation process is widely criticized — indeed, mocked — as a meaningless charade. Back when he chaired the Senate Judiciary Committee, Joe Biden famously described confirmation hearings as “a Kabuki dance.” In the critics’ view, every nominee since Robert Bork’s ill-fated candor in 1987 has taken shelter in judicial ethics to turn aside any effort to learn his or her views on legal issues. “No hints, no forecasts, no previews,” Ruth Bader Ginsburg said in her opening statement in 1993.
The critique seems to assume some golden age of Supreme Court confirmations when nominees answered senators’ questions freely, giving them all the information they needed for knowledgeable votes. Farganis, a professor at Elon University in North Carolina, and Wedeking, a professor at the University of Kentucky, demonstrate in their article in Law and Society Review that the idea of the once fully forthcoming confirmation hearing is largely myth — some truth to it, but no more than some.
The researchers took on the monumental task of reading and encoding all of the confirmation hearings from Harlan through the most recent: Bush nominees John G. Roberts Jr. and Samuel A. Alito Jr. and Obama nominees Sonia Sotomayor and Elena Kagan. Nominees’ answers were categorized and then counted as “fully forthcoming,” “qualified,” “not forthcoming,” or non-responsive (“non-answer”).
The numbers confirm some decline in candor since the Bork hearings, though the very next nominee — Anthony M. Kennedy — was among the most forthcoming. But Farganis and Wedeking attribute the relatively slight decline in candor to another, even stronger trend: the increasing number of questions from senators touching on the nominees’ personal views.
Beyond the researchers’ numbers, the senators’ increased inquisitiveness can be seen quite dramatically in a law library with the printed volumes of confirmation hearings. The Harlan and Brennan hearings are printed along with four others in a single volume. The Bork hearings mark the beginning of multi-volume hearings. Bork’s spans seven volumes; two decades later, Roberts’s confirmation hearing fills eight volumes, Alito’s 10.
Some of the hearing records’ length stems from outside witnesses, but the nominee now routinely spends more time in the witness chair than in the past. The hearing for Charles Whittaker in 1957 was so perfunctory that a former Supreme Court law clerk, the future chief justice William H. Rehnquist, was prompted to write a law review article critical of the confirmation process. Byron R. White was asked six, non-challenging questions in 1962.
The court — and the confirmation process — became more politicized in the 1960s. Senators asked more and more questions, more and more confrontational — arguably fulfilling their constitutional duty to determine whether to render their “advice and consent” to the president’s choice. Equally, however, the nominee has some obligation to the judicial oath he or she hopes to take not to prejudge the issues that are to come before the court. The Supreme Court nominee’s pledge card is necessarily limited to a promise to endeavor to decide cases fairly and impartially on the basis of the evidence and the law.
This restriction does not mean that the confirmation hearings are useless. No one reviewing the confirmation testimony of Ginsburg or Stephen G. Breyer could be surprised by their moderately liberal records on the court. Both, for example, strongly endorsed the existing constitutional precedents on abortion rights. By contrast, the qualified responses that Roberts and Alito gave on Roe v. Wade foreshadowed the position they took only one term later to uphold a federal ban on so-called partial birth abortions in a decision that undercut one of Roe’s major premises.
As with democratic government itself, the process is not perfect. But the process gives senators enough information to make a meaningful choice whether to confirm a nominee or not. Senators can probe; nominees can duck. And the justice who seemingly departs from his or her confirmation statements can at least be held accountable in the court of public opinion. Critics who find this unsatisfactory yearn for some ideal that cannot exist — and never has.
Monday, January 2, 2012
Plus Ca Change: 2011's Non-Events in Law and Justice
Like the non-barking dog in the Sherlock Holmes story, many of the most significant legal developments in 2011 can be seen in the news that did not happen. Here are some of the past year’s most important non-events:
Guantanamo; military commissions. The Guantanamo Bay prison camp remains in operation two years after President Obama’s original deadline for closing. Bipartisan legislation forced on Obama prevents bringing any of the remaining 170 prisoners to the United States for trial or transferring them to other countries. Meanwhile, the military tribunals favored by national security hawks for trying al Qaeda terrorists are stalled. Trials for the alleged 9/11 conspirators and U.S.S. Cole bomber will not be happening soon.
Health care law challenges. The multiple challenges to the Affordable Care Act are due at the Supreme Court in March, but only after the legal attacks lost momentum in 2011. The excitement stirred by two trial-level rulings against the law in 2010 subsided as three out of four federal appeals courts upheld the law. Significantly, the legal arguments against the law were rejected by two leading conservative judges: Jeffrey Sutton on the Sixth Circuit and Laurence Silberman on the D.C. Circuit.
Financial crisis accountability. The country is digging out of the hole created by the financial crisis of 2008, but the individuals and companies responsible for the economic meltdown for the most part have yet to be held legally accountable. No prominent executive has been prosecuted for the shenanigans that misled investors about the worth of toxic mortgages. And the Securities and Exchange Commission is taking flak for regulatory settlements that let banks off the hook for peanuts with no admission of misconduct.
Immigration standoff. The immigration debates produced sound and fury, and several controversial laws being challenged in court, but it all signified very little. Immigration reform was a non-starter in Congress, even in a non-election year. The administration’s record number of deportations belied the attacks from critics, and the influx of undocumented aliens slowed with the slowing U.S. economy. State and local police seem unlikely to use new immigration enforcement powers even if the get-tough laws survive a Supreme Court test.
Death penalty slowdown. Public opinion polls continue to register support for capital punishment, but the number of new death sentences fell to a record low of 78. That was the first time the number was below since capital punishment was reinstated in 1976. The number of executions also fell to 43, just half the number in 2000 (85). Straws in the wind — abolition in Illinois, a moratorium in Oregon— signaled further erosion of support for capital punishment in actual operation.
Attacks on the courts. Newt Gingrich attacked federal judges with proposals for hauling judges before Congress to explain decisions or abolishing entire courts, like the Ninth Circuit, for wayward decision-making. The impact on Gingrich’s campaign remains to be seen, but the attacks drew little support — and sharp criticism from certified conservatives such as former Bush attorney general Michael Mukasey and former federal appeals court judge Michael McConnell. Gingrich’s proposals, Mukasey said, were “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
Supreme Court stasis. With a new justice for the second year in a row, Supreme Court watchers watched for changes, but the justices remained divided along predictable ideological fault lines. With a record three female justices, the court still dealt a severe blow to a major sex discrimination lawsuit against Wal-Mart. Justice Elena Kagan stirred interest with a pair of strongly written opinions, but they were dissents that could equally have been written by her predecessor, John Paul Stevens. And no new vacancies seemed likely in the near term.
Football in court. The Penn State scandal brought overdue attention to the closed culture of college football, but pro and college football alike have yet to be held fully accountable for the predictable, debilitating injuries that players suffer from game-time concussions. Separate lawsuits charge the NFL and NCAA with failing to develop rules to effectively limit concussions and keep players off the field after suffering brain injuries. And the NFL is also under pressure to develop better compensation for former players with brain injuries.
Judicial politics. The historic bipartisan agreement by the Senate’s so-called Gang of 14 in 2005 to end the threat of filibusters against federal judge nominees became a dead letter only six years later. The four Republican senators in the accord still in office all supported filibusters that blocked two Obama nominees, Goodwin Liu and Caitlin Halligan, who would have been confirmed if floor votes had been permitted. Along with the earlier GOP fights against Obama’s Supreme Court nominees, the new battles show that the judicial wars continue unabated.
Gays in military. The “don’t ask, don’t tell” policy on gays in the military officially ended on Sept. 20, 2011, after President Obama and the Pentagon’s civilian and military chiefs certified the change would not affect military readiness. Issues of implementation remain, but despite dire warnings from anti-gay groups and some in the military the change itself went off without a hitch. Gen. James Amos, the Marine Corps chief who had resisted the change, said in November the issue came up only once when visiting troops in Iraq.
"Plus ca change,” the French tell us, “plus c’est la meme chose.” So true in much of law and justice for 2011. Now, a new year begins.
Guantanamo; military commissions. The Guantanamo Bay prison camp remains in operation two years after President Obama’s original deadline for closing. Bipartisan legislation forced on Obama prevents bringing any of the remaining 170 prisoners to the United States for trial or transferring them to other countries. Meanwhile, the military tribunals favored by national security hawks for trying al Qaeda terrorists are stalled. Trials for the alleged 9/11 conspirators and U.S.S. Cole bomber will not be happening soon.
Health care law challenges. The multiple challenges to the Affordable Care Act are due at the Supreme Court in March, but only after the legal attacks lost momentum in 2011. The excitement stirred by two trial-level rulings against the law in 2010 subsided as three out of four federal appeals courts upheld the law. Significantly, the legal arguments against the law were rejected by two leading conservative judges: Jeffrey Sutton on the Sixth Circuit and Laurence Silberman on the D.C. Circuit.
Financial crisis accountability. The country is digging out of the hole created by the financial crisis of 2008, but the individuals and companies responsible for the economic meltdown for the most part have yet to be held legally accountable. No prominent executive has been prosecuted for the shenanigans that misled investors about the worth of toxic mortgages. And the Securities and Exchange Commission is taking flak for regulatory settlements that let banks off the hook for peanuts with no admission of misconduct.
Immigration standoff. The immigration debates produced sound and fury, and several controversial laws being challenged in court, but it all signified very little. Immigration reform was a non-starter in Congress, even in a non-election year. The administration’s record number of deportations belied the attacks from critics, and the influx of undocumented aliens slowed with the slowing U.S. economy. State and local police seem unlikely to use new immigration enforcement powers even if the get-tough laws survive a Supreme Court test.
Death penalty slowdown. Public opinion polls continue to register support for capital punishment, but the number of new death sentences fell to a record low of 78. That was the first time the number was below since capital punishment was reinstated in 1976. The number of executions also fell to 43, just half the number in 2000 (85). Straws in the wind — abolition in Illinois, a moratorium in Oregon— signaled further erosion of support for capital punishment in actual operation.
Attacks on the courts. Newt Gingrich attacked federal judges with proposals for hauling judges before Congress to explain decisions or abolishing entire courts, like the Ninth Circuit, for wayward decision-making. The impact on Gingrich’s campaign remains to be seen, but the attacks drew little support — and sharp criticism from certified conservatives such as former Bush attorney general Michael Mukasey and former federal appeals court judge Michael McConnell. Gingrich’s proposals, Mukasey said, were “dangerous, ridiculous, totally irresponsible, outrageous, off the wall.”
Supreme Court stasis. With a new justice for the second year in a row, Supreme Court watchers watched for changes, but the justices remained divided along predictable ideological fault lines. With a record three female justices, the court still dealt a severe blow to a major sex discrimination lawsuit against Wal-Mart. Justice Elena Kagan stirred interest with a pair of strongly written opinions, but they were dissents that could equally have been written by her predecessor, John Paul Stevens. And no new vacancies seemed likely in the near term.
Football in court. The Penn State scandal brought overdue attention to the closed culture of college football, but pro and college football alike have yet to be held fully accountable for the predictable, debilitating injuries that players suffer from game-time concussions. Separate lawsuits charge the NFL and NCAA with failing to develop rules to effectively limit concussions and keep players off the field after suffering brain injuries. And the NFL is also under pressure to develop better compensation for former players with brain injuries.
Judicial politics. The historic bipartisan agreement by the Senate’s so-called Gang of 14 in 2005 to end the threat of filibusters against federal judge nominees became a dead letter only six years later. The four Republican senators in the accord still in office all supported filibusters that blocked two Obama nominees, Goodwin Liu and Caitlin Halligan, who would have been confirmed if floor votes had been permitted. Along with the earlier GOP fights against Obama’s Supreme Court nominees, the new battles show that the judicial wars continue unabated.
Gays in military. The “don’t ask, don’t tell” policy on gays in the military officially ended on Sept. 20, 2011, after President Obama and the Pentagon’s civilian and military chiefs certified the change would not affect military readiness. Issues of implementation remain, but despite dire warnings from anti-gay groups and some in the military the change itself went off without a hitch. Gen. James Amos, the Marine Corps chief who had resisted the change, said in November the issue came up only once when visiting troops in Iraq.
"Plus ca change,” the French tell us, “plus c’est la meme chose.” So true in much of law and justice for 2011. Now, a new year begins.
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