"Centrists Should Mourn the Demise of the Filibuster: Only the extremists win—and in the end, mostly the Republicans."

A Slate headline, quoted in its entirety at Instapundit, as if he's not seeing the snark.

To see the snark, examine the logic

1. After the filibuster, only the extremists will win.

2. Most of the winners will be Republicans.

3. [Unstated.] Most of the extremists are Republicans. 

What counts as "extremism"? In this context, it has to do with how we think about judges. (And executive nominees, but I'll leave them to the side for simplicity's sake.) The "extreme" should be understood as the more ideologically slanted or threateningly powerful individuals that the President would otherwise have refrained from nominating. But even with the minority party disabled by the inability to filibuster, there are political constraints.

Obama can't just nominate, say, Bill Ayers.
He won't want the criticism, and there will be pressures on members of his own party to say no. The old game of letting the minority party do the dirty work has changed. The other party will still do what it can to trash the reputation of the nominee, but the President's own party will have to vote that nominee down or take the political heat for voting for this awful character.

I suspect that the political check will be more of a constraint on Democrats, because it seems that American voters perceive conservative judicial ideology as more conventional, proper, and neutral than liberal judicial ideology. And this is essentially the insight in the Slate article (which is written by Eric Posner). And by essentially, I mean subtract the subterfuge in the part I've boldfaced:

Next time Republicans control the presidency and the Senate, they will appoint ideologically extreme judges. True, Democrats could cancel out this effect by appointing extremely liberal judges when they are in power, but recent history suggests that Democrats do not care as much as the Republicans about appointing ideologically extreme judges. Unless this changes, picture a federal appellate bench composed of numerous Antonin Scalias and Clarence Thomases, not fully offset by Elena Kagans and Stephen Breyers.

Let me restate the boldfaced part to say what I think is true:  Democrats know that the vigorous left-liberals they'd like to see on the bench would be viewed by the American people as ideologically extreme and unsuited for judicial work.

The reason the Republicans seem to get away with leaning further toward conservatism than Democrats can lean toward liberalism is that conservatism better comports with the people's idea of the role of the judiciary.

Removal of the filibuster helps conservatives not because they are more "extremist" than Republicans, but because the political check on nominating strong judges operates more forcibly on liberals. 

"He came in with his right hand raised and basically kept it raised the entire semester," said Alan Dershowitz about Ted Cruz.

"Every year you see two or three [Harvard Law] students who you know are natural leaders. Everybody saw that with Barack Obama . . . Everybody saw that with Elena Kagan. There are students who come in with charismatic qualities who other people follow. He was one of them."

But how much easier to be the leader at Harvard when you are voicing liberal opinions!

He... enjoyed antagonizing liberal classmates. Late nights at the Law Review were the scene of fierce debates....

“Some topic would come up and it was a free for all,” said Dean Newton, a fellow conservative on the Law Review. “All you’d have to do is say something remotely conservative and it would catch people’s hair on fire. It was fun to goad them.”

Do you have to be the sort of person who finds it "fun" to make your peers mad to emerge as a leader when you are conservative? I'm sure others had some conservative urges but kept silence because they cared about being liked.

I suspect that this is part of a deep structural problem in conservatism today — why the GOP ends up with so many characters who rub women (and sensitive men) the wrong way.

A quote from Cruz:

“There is a depressing tendency in modern political life to disparage those who disagree with you as either stupid or evil.... They’re either too dumb to know the right answer or, even worse, they’re smart enough and yet they wish suffering on others and are just downright evil.’ The truth of the matter, most people are neither.”

Minimizing the crimes of women (in a serious case about federalism).

Here's how WaPo's Robert Barnes begins his report about a case of attempted murder:

A melodramatic love triangle begat a ham-handed revenge poisoning. That led to what one Supreme Court justice called an “unimaginable” federal prosecution of the scorned wife under a law enacted to implement a global chemical weapons treaty.

As long as the victim didn't actually die, it's just some kind of joke?

Now, there is a problem with the feds taking over this prosecution, and that should be the focus of the story about this case. But you should see how outrageous it is to diminish the criminal behavior in this gendered fashion.

Carol Anne Bond, a Pennsylvania microbiologist... ordered a rare blend of chemicals, partly off the Internet, and over the next several months tried to poison [Myrlinda] Haynes 24 times by putting them on her doorknob, car and, critically, mailbox.

Just some nutty lady's bumbling parry in a cat fight?

Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law based on the chemical weapons ban treaty that is signed by all but four of the world’s nations.

The problem here is not the unseriousness of attempted murder. It's that murder is traditionally left to the states, and the federal government is — at least theoretically — a government of limited, enumerated powers. With this important constitutional principle at stake, Bond is represented by the great ex-Solicitor General Paul Clement:

Clement...  said that if the law implementing the treaty “really does reach every malicious use of chemicals anywhere in the nation, as the government insists,” then it violates the “bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct” that does not have distinctly federal concern....

[Justice Elena Kagan] said the treaty gave Congress the power to pass implementing legislation. “So you have to find a constraint on the treaty power. Where does it come from?” she demanded.

Justice Sonia Sotomayor worried about the courts hamstringing efforts to deal with terrorism. 

Writing tip for Barnes: If you've already got "ham-handed," don't use "hamstringing." Too much ham.

“It would be deeply ironic that we have expended so much energy criticizing Syria, when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.

Now, we're getting to the real meat of it. The government was represented by the current Solicitor General, Donald B. Verrilli Jr.

Chief Justice John G. Roberts Jr., who posed no questions to Clement, asked Verrilli if it would be possible for the president to join a treaty that gives national governments all powers and for Congress then to put in place such legislation.

When Verrilli said that would be unimaginable, Justice Anthony M. Kennedy shot back: “It also seems unimaginable that you would bring this prosecution.”

That led the conservative justices — plus Justice Stephen G. Breyer, who usually sides with the liberals — to unleash a barrage of hypotheticals of what could be prosecuted under the broad law, which covers chemicals that could harm humans or animals: a wheelbarrow full of kerosene; a poisoned potato given to a horse; the performance-enhancing drugs allegedly used by cyclist Lance Armstrong.

“Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked Verrilli, drawing laughter from the court’s spectators. He explained that chocolate Halloween candy is “poison to dogs, so it’s a toxic chemical” under the act.

Verrilli chafed, saying, “This is serious business.”

Yes, it truly is. It's easy to see Kennedy's point: The federal government shouldn't have chosen to prosecute this case. But it did, and now what? It's easy to think: The central government needs ample power to do everything that might need to be done at a national level and it should refrain from using that power to deal with matters that are better left to the states.

But it doesn't refrain.

Why did all 3 female Supreme Court Justices vote on the side of the father...

... in a case where the single mother — with no financial support from the biological father — chose to go forward with her pregnancy and chose adoptive parents, parents who were with her in the delivery room? The father gave up his parental rights via text message before the baby was born, and the child — a little girl — lived with those adoptive parents for 2 years before the state court gave her to the father. The only reason the father had an argument for taking the child was the Indian Child Welfare Act of 1978, a federal law intended to protect Indian families from public and private welfare agencies that Congress decided had been too aggressive. The Supreme Court majority — which included the one male liberal Justice (Breyer) — interpreted the statute not to apply in a situation where the biological father had never had custody of the child. Here is a mother who happened to have been impregnated by a man who is a member of an Indian tribe. Why was it appealing to the female Justices to allow this man to intrude on the mother's choice to give the baby up for adoption?

Here's the text of the case, Adoptive Couple v. Baby Girl.

The child is 1.2% Cherokee.



Consider that the states have traditionally handled family law, and Congress's power arises from the Commerce Clause.

"Feel free to rele­gate the majority’s decision to the furthest reaches of your mind..."

"... The situation it addresses should never again arise.”

"What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?"

A perceptive question by Justice Breyer at today's oral argument in the Prop 8 case, asked of Charles J. Cooper, who had framed the state's interest in terms of "responsible procreation." It's certainly true that same-sex couples and opposite-sex couples are different in that only sex between a man and a woman can result in children, but what's the harm in letting some couples who can't reproduce get married?

Cooper says:

The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples….

Justice Kagan presses him: What about older heterosexual couples over the age of 55? Their sexual intercourse isn't going to produce children. Letting them marry when they can't procreate ought to present the same problem of centering marriage on adult "needs and desires" instead of on children.

Cooper says:

[S]ociety's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy... advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that...

The fertile party? Yes: The man can still reproduce, just not with this woman.

The marital norm... [is] designed... to make it less likely that either party to that — to that marriage will engage in irresponsible procreative conduct outside of that marriage.... That's... the marital norm. Society has an interest in seeing a 55-year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment.... So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.

Got that? In this view, marriage is about children and not adult desire because it is a device to rein in male desire, to keep men from fathering children they aren't going to raise. It's not that marriage can keep that bad thing from happening. It just makes it less likely, because the marriage norm is fidelity.

Obviously, fornication and adultery go on despite this marriage norm, and it's hard to see why letting gay people marry would mess up the norm. I'm trying to picture this man at the heart of Cooper's vision of society: He's true to his wife, because he's gotten the message that's the norm, but if some gay people can marry, then he's going to start cheating, knocking up some other woman, and it's because of this guy that gay people can be excluded from marriage?

What a nutty set of things we're asked to believe! Who the hell is this stereotypical married man, constrained by what other people are forbidden to do? And why should his ridiculous, tenuous connection to norms carry the day? And how can obsessing over what makes him tick work to keep marriage focused on the raising of children and not on the emotional needs and desires of adults? It seems to be all about the needs and desires of adults — really ridiculous heterosexual male adults.

Who are these people?!

The phrase "voice of these children" seems to reveal the deeper thoughts and intuitions moving Justice Kennedy.

At today's oral argument in the Prop 8 same-sex marriage case.

Justice Kagan pushed the lawyer Charles J. Cooper to give some reason for excluding same-sex couples from marriage. Cooper seems to be trying to answer, saying that it's "reasonable" to think that "redefining marriage… as a genderless institution" could undermine marriage, making it less effective as a way to enforce "procreative responsibility." Seemingly unsatisfied, Justice Kennedy breaks in to say: "you should have to address Justice Kagan's question."

Cooper talks about how "it is impossible for anyone to foresee the future accurately enough to know exactly what [the] real-world consequences would be" if "this age-old bedrock social institution should be fundamentally redefined." This seems to be the interest in not changing anything until you have pretty good evidence that the change will be for the better. Justice Scalia tries to help, saying that if gay couples were married, there might also be a requirement to permit adoption. Even though California already permits same-sex couples to adopt, so how can California rely on the idea that it's bad for children. Scalia says that the requirement might apply to other states, and there is "no scientific answer" to the question whether having same-sex parents has a “deleterious effect" on children.

At this point, Justice Kennedy says this — boldface added:

I think... that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?

The "Red Brief" is the respondents' brief under the Supreme Court's document preparation rules, but that's not the source of the "voice of the children" phrase. Searching the briefs, I found it in the amicus brief of the Family Equality Council:

The voices of children raised by same-sex parents — those who live every day within the family structure at the heart of these lawsuits — are too often unheard in the debates about same-sex couples and marriage. Their stories are too often missing from discussions of "traditional" families or "family values," and their personal experiences too often discounted as irrelevant. Although those who oppose marriage for same-sex couples frequently make assumptions about the quality of the children's family lives, the children themselves are rarely asked to explain what they actually experience.

This habitual omission is unfortunate because these children are uniquely qualified to speak about how their families look, feel, and function and how the availability — or unavailability — of marriage as an option for their parents colors their daily lives. These children are also among those persons most directly affected by both the Defense of Marriage Act (DOMA) and Proposition 8.

The voices of lesbian, gay, bisexual, and transgender (LGBT) youth are also too frequently disregarded in these debates. The laws banning marriage for same-sex couples or limiting federal recognition of such marriages leave these young people to question their own dignity and self-worth. This stigmatization has a profoundly negative impact on their self-esteem, sense of purpose, and well-being that threatens to burden them for the rest of their lives.

This brief presents the voices of these children.

If you want to know where Justice Kennedy's heart is. I think it's here.

Cooper stressed the lack of "data" about whether there's "any incremental beneficial effect” to the children in calling it marriage as opposed to just civil unions, but that's only saying there might not be a reason to include same-sex couples. Kagan's question was very specific: "So you have sort of a reason for not including same-sex couples. Is there any reason that you have for excluding them?" Kennedy demanded an answer to that question, and though he acknowledged the lack of information, he leaped from that to the injury to the voice of the children. Obviously, he meant there's an injury to the children and we need to listen to the voice of the children. There was something odd about that leap and the way it was phrased that makes it feel revelatory of the deeper thoughts and intuitions moving Justice Kennedy.

Who was first to say that it's good if a judge "keeps easy cases easy"?

We're very familiar with the old expression "Hard cases make bad law," from which one can infer that easy cases make good law and, perhaps, an idea that judges should make an effort to keep easy cases easy.

In today's case about drug-sniffing dogs, Justice Scalia said that using a property-rights analysis (rather than discussing the expectation of privacy) "keeps easy cases easy." Justice Kagan picked up the phrase in her concurring opinion to say that using both forms of analysis "would make an 'easy cas[e] easy' twice over."

Should we credit Justice Scalia with the new aphorism "kee[p] easy cases easy"? (Note that I'm using the Kagan approach to brackets as I drop the s on "keeps.")

The only near example I found in the state and federal courts database was Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), in which Judge Alex Kozinski said that something "illustrates that easy cases are easy, however one analyzes them." But that's not the same as proclaiming it a virtue to keep easy cases easy, so I give the aphorism to Justice Scalia.

By the way, Scalia loves to talk about easy cases. For example, last fall:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

Sometimes when one lawyer says a case is easy, you want to say — as I once heard Professor Henry Monaghan say — "Yes, but which way is it easy?"

"The government’s use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment."

Justice Scalia writes in a new Supreme Court opinion. This is one of those 5-4 cases where Scalia and Thomas join the liberal Justices. It's not 6-3 because Justice Breyer joins the conservatives.

Here's the PDF of the case.

[W]e need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

The dog had gone up onto the porch — that is, the curtilage: "The front porch is the classic exemplar of an area 'to which the activity of home life extends.'"

Justice Kagan (with Sotomayor and Ginsburg) joins Scalia's opinion "in full" and riffs on Scalia's "keeps easy cases easy" by quipping that adding the expectation of privacy analysis would "make 'an easy cas[e] easy” twice over.'"

Alito writes the dissenting opinion. The police came onto the property, but only on "the customary path," during the daytime, and for "less than a minute or two." As for privacy:

A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human.

Alito's opinion is much more dog-positive than Scalia's or Kagan's. Scalia and Kagan refer to "the dog" — it's basically a tool of the police to them. Kagan compares the dog's nose to the "thermal imaging device" in Kyllo. Alito calls the dog by name: Franky. Alito's got footnotes to things like "A Dog's History of America: How Our Best Friend Explored, Conquered, and Settled a Continent."

You decide:
	Aw, it's Franky! It's man's best friend!
	Well, no. It's the cops.
pollcode.com free polls

"I loved the D.C. Circuit... and I could've stayed there. But I think I got maneuvered into this job. And then I had a really bad interview."

Said Clarence Thomas in this wonderful hour-long conversation with Harvard Law School Dean Martha Minow. The Harvard law students give him a standing ovation as he arrives in the room, and he jokes "I should quit while I'm ahead."

In fact, he goes on to be warm, interesting, deep, smart, and there's just way too much good stuff in here for me to quote everything that jumps out, because, really, everything jumps out. If you skip over the long introduction and get to the first question, he talks about growing up among illiterate but good and loving people and then discovering reading at a segregated library in Savannah. The librarians introduced him to Dr. Seuss.



Minow and Thomas talk about their mutual love for a book about introversion called "Quiet," and Thomas characterizes himself as very introverted. He talks about working in all 3 branches of government and greatly preferring the judiciary because in the EEOC and in the legislature, though he loved the people, it was too political. "I don't understand politics.... It made my head hurt.... It was like new math."

ADDED: He says Ruth Bader Ginsburg and Elena Kagan are delightful. When Kagan arrived, he said to her: "You know, it's going to be a joy disagreeing with you for years to come."

AND: At oral arguments, Justice Breyer doodles stick figures. The 2 of them sit together at oral argument and share jokes and laugh. "You know, he's very smart, but he's sort of a moving around smart," he says, making a gesture as if he were moving Breyer's little stick figures around. "And I tend to be someone, I lock into something, I want to think it through for a long time, and he likes to move around, and I sort of rein him in. Every so often, what I'll is I'll say, 'What about this, Steve?' and he'll pop up and ask and a question." So that's how Clarence Thomas asks questions at oral argument. Thomas laughs because it's "just something I'm throwing out," and Breyer makes it into a question.