Today is "Thanksgivingukkah," the extraordinarily rare--as in once in 70,000 years--convergence of Thanksgiving and the first day of Hannukah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet- potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays are in some ways mirror images: The core message of Thanksgiving was a pleasant lie but the holiday has become a horror show, whereas Hannukah's origins are terrible but it has become mostly harmless. Let me explain.
When I was in elementary school in the early 1970s, I was taught that the first Thanksgiving occurred in 1621 and it was a celebration of peaceful cooperation between native Americans (then still called Indians) and the Pilgrim settlers. It was always a bit of a myth and the holiday did not really get going until the 19th century. Then it evolved, first becoming more religious and then less religious, but that original idea of cross-cultural cooperation was something worth promoting--although I certainly understand how contemporary native Americans might resent the day as a whitewash of genocide.
As a vegan I find the mainstream contemporary version of Thanksgiving repugnant. From the White House "pardoning" of a particular turkey to the commonplace reference to Thanksgiving as "turkey day," Thanksgiving is one of the few occasions during the year when omnivorous Americans seem to acknowledge that their gustatory pleasure is purchased by killing billions of innocent beings. That very acknowledgment belies the familiar bromide that awareness is the first step towards change.
Socrates believed that people only do bad because they don't know the good. Paul McCartney reportedly said that "if slaughterhouses had glass walls, everyone would be vegetarian." These are nice sentiments but they're naive. People who oppose the death penalty sometimes say that executions should be televised as a means of demonstrating how brutal it is, but when executions were public, they were enjoyed like sporting events. So I regard the comfort that people have with talking openly about the killing of turkeys, even if only around Thanksgiving, as a sign of how far we vegans have to go to win hearts and minds.
Hannukah, meanwhile, celebrates the military triumph of a group--the Maccabees--who were the Second Century BC equivalent of the Taliban. Today largely described as fighting for national self-determination and religious freedom, the Maccabees were religious fundamentalists who also attacked and forcibly converted "Hellenized" Jews, i.e., Jews who had assimilated to the dominant Greek culture--with its dreaded mathematics, drama, art, and philosophy. The Python boys were depicting a clash that occurred a couple of centuries after the Maccabee revolt, but they nicely captured the problem with the fundamentalist/nationalist Jewish uprising in the "What have the Romans ever done for us?" scene in The Life of Brian.
If highly problematic in its origins, Hannukah has nonetheless become a largely harmless holiday for contemporary American Jews. We celebrate this relatively minor festival as a Jewish alternative to Christmas. And since Christmas itself is probably merely an adaptation by Christianity of pagan festivals, modern Hannukah is a simulacrum of a simulacrum. We can decry Hannukah's true origins (as I have just done), but that really misses the point. Hannukah's significance has nothing to do with history and everything to do with the calendar. If Tisha B'Av (a Jewish fast day that commemorates the destruction of the first and second Temples, as well as other catastrophes) rather than Hannukah occurred in December, American Jews would mark Tisha B'Av by giving presents and wishing one another a "happy Tisha B'Av".
One might think that Hannukah's coincidence with Thanksgiving rather than Christmas this year makes it difficult to conceptualize Hannukah as the Jewish Christmas, but in fact it's easy. The enshrinement in recent years of the day after Thanksgiving as "Black Friday"--and the still-more-recent practice of retailers holding Black Friday sales on Thanksgiving Day itself--have made of the Thanksgiving-through-Christmas season an undifferentiated holiday of consumerism, a kind of suburban sprawl on the calendar. Given this hyper-commercialization, it is fair to say that increasingly, the period from late November through late December may aptly be described as Thanksgivingmas. And so there should be nothing at all odd about American Jews celebrating Thanksgivingukkah, for it is the perfectly natural counterpart to the holiday now celebrated each year by most of our Christian neighbors. It may take another 70,000 years for Thanksgivingukkah to return as an official matter. But in spirit, Thanksgivingukkah will now be an annual event.
Last Thursday, I posted some thoughts here on Dorf on Law about the controversy over new National Football League rules that were passed before this season, which are part of the ongoing effort to try to reduce the carnage of injuries to offensive players, especially quarterbacks. (OK, "carnage" is clearly too strong a word. Carnage describes what happens to the animals who will be killed to be served on American dinner tables tomorrow, while we watch football players injure each other. But I digress, and tomorrow's post by Professor Dorf will expand upon the question of how vegans feel about Thanksgiving).
Whatever one thinks about the new rules (versions of which have also been adopted by the NCAA for college games), the prevalence of serious injuries in football is frightening. After 11 games of a 16 game season, 32 NFL teams this year have placed a total of 47 quarterbacks on the injured reserve list. In the college ranks, the University of Florida Gators have had a disappointing win-loss record because they are now starting their fourth-string quarterback, with the first three kids (and, as I understand it, 9 of the other 21 starters) suffering season-ending injuries. (The outcry from Gator fans? The coach should be fired, and even this extreme number of injuries cannot be used as an excuse!) The University of Texas announced yesterday that one of their quarterbacks will not be able to play anymore, because of recurring symptoms from a severe concussion. There is, to say the least, no reason to think that the new rules are making the lives of offensive players cushy.
In any event, I wrote my comments last week in reaction to the general illogic of an argument, which we hear mostly from current and former defensive players, that changing the rules in a way that they do no like is somehow fundamentally wrong, amounting to nothing less than an assault on the nature of the game itself. My interest in that logical error is more general, because we see variations of it all the time in policy debates. And sure enough, even though I was unaware of the analogy at the time that I wrote my post, it turned out that my comments could rightly be applied to Republicans' complaints about the changes to the filibuster rule that Democrats implemented last week, an application of my argument that I belatedly described in my Dorf on Law post two days ago. "It's different!" is not the same as "It's illegitimately different," unless the difference can be assessed on the basis of some clear standard, which does not exist in football or the U.S. Senate.
In a response to a comment on my earlier post, however, I also promised to return to a different aspect of this debate. One version of the basic complaint, as formulated by one former NFL defensive lineman, is that the new rules "make it harder to do my job." I argued that the defensive players' job descriptions include playing by whatever rules the league adopts. Some rules (like offensive holding, prohibitions against crack-back blocks, and so on) make it harder for offensive players to help their teams score. Other rules (no head slaps, no roughing the passer, and so on) make it harder for defensive players to prevent the other team from scoring. None of the new rules reduce the number of players on the defensive side of the ball, I noted, so every team will be forced to field a defensive squad, and every team's defense will play by the new rules.
Although that is all true, it raises two further interesting points. First, it is possible that, when a defensive player says, "It's harder to do my job now," he could at least mean that the new rules will result in his position being reduced in economic value. If sacks are no longer a big part of being an effective defensive player, then big salaries will not be coming the way of sack specialists. No matter how many points are scored in games, however, the ability to play defense will be valued. Even in the NBA, where teams average about 90 points per game, teams seek out and pay defensive specialists.
Currently, defensive ends and tackles are the second- and fourth-highest paid positions (ahead of running backs, receivers, tight ends), so they are starting from a rather high point. Let us assume, however, that the new rules tilt the salary balance, so that offensive players will soon get a bigger slice of the salary pie. Everyone acknowledges that the reason the NFL is adopting the new rules is because of money. Current and former defensive players, in fact, preface their complaints by fairly spitting, saying things like, "Come on, we know the NFL is doing this to protect the guys who sell the tickets!"
Right. Former players also complain about how they were born too soon, because there is so much money to be made by current players. In just the five-year span from 2007 to 2012, NFL minimum salaries rose by roughly one-third. If the new rules allow the league to maintain fan interest -- and no one is claiming that the NFL is doing any of this for humanitarian reasons -- then the defensive players are going to be sharing in that larger pie. Although it is possible that the new rules could make defensive players' relative salaries drop so far that the expanding pie will not make up the difference, color me skeptical. I acknowledge the logical possibility that defensive players could lose money, and thus "make it harder to do my job" (or at least be paid as much to do a slightly different set of tasks), but that is an empirical prediction that seems far-fetched, at best.
There is, however, a second way in which it could be true that any new set of rules can make it harder for players to do their jobs. Different rules will not just force current players to play differently, but they are also virtually certain to cause teams to make different personnel decisions. Consider how different basketball would be if there were no 3-point shot, and goal tending were legal. Suddenly, Hall of Famers like Reggie Miller would have been nonviable in the league, and jokes like Gheorghe Muresan and Manute Bol would be among the all-time greats. Hockey leagues that call tight penalties employ faster players with more finesse, whereas hockey leagues that allow fights and hard checking employ bigger, slower players.
It should be no surprise that this has happened in the NFL, too, most obviously in the rule changes from the early 1980's that made it easier for offensive linemen to use their hands without being called for holding. This had the effect of de-emphasizing foot speed and mobility and emphasizing size and strength, which had the very predictable effect of adding dozens of pounds to the size of offensive linemen. Steroids and human-growth hormone were part of it, but the cause-and-effect between the rule changes and the who could make a living as an NFL offensive lineman is clear.
When a guy says that "the new rules make it harder for me to do my job," therefore, that can certainly be true in the sense that he, personally, might lose his job if new rules make his skill set unmarketable (and he is not able to adapt). This is certainly not what the former players are saying, because the new rules do not affect them, making their grousing little more than "when men were men" silliness. However, even if the people who play defense under the new rules will be paid more than under the old rules, some guys will lose their jobs, while others will replace them.
This, however, simply poses the baseline question in a different form. Why are the current players entitled to prevent rules changes that disfavor them, when other hard-working athletes could thrive under different rules? To say that different rules have different outcomes, both absolutely and distributionally, is hardly news. In fact, that is why I find the baseline problem to be so generally important.
The people who run a sports league, therefore, can use the rules not just to change the way current players play the game (discouraging helmet-to-helmet hits, for example), but also to change who plays the game. If the problem is that 300-pound men can do too much damage to 220-pound men in violent collisions, then one response is to change the rules about how the larger men can hit the smaller men. Another response is to change the rules to simply ban the larger men. A third, however, is to change the rules not just to change how one group of men hit another group of men, but to make it less likely that any team's competitive advantage would be served by hiring behemoths.
There is a reason that we do not see players with huge stomachs playing in the NBA, but we do see it in the NFL (and, to a diminishing extent, in baseball and golf). Or, to be more accurate, there are many reasons. When the NFL changes its rules, it should not think of the ultimate effects on personnel decisions as an unintended consequence, but as a goal in itself.
In my latest Verdict column, I discuss filibuster reform in the Senate. I ask whether Democrats should fear that when Republicans next control the Senate, they will abolish what's left of the filibuster. I conclude that with respect to appointments, the filibuster systematically favors neither Republicans nor Democrats (assuming equal likelihood of control of the chamber over the long run, which is what one would predict in a two-party system). I also argue, however, that over the long run, the ability of 41-50 Senators to filibuster aids Republicans because, other things being equal, Republicans are more likely to win by preventing the government from doing anything than Democrats are. Even though "the era of big government is over," as President Clinton said, Democrats still favor bigger government than Republicans do--and that means that the ability to prevent Congress from doing anything is, on average, more useful to Republicans than Democrats. So if Mitch McConnell is threatening to do away with the filibuster for legislation as well as appointments, Harry Reid should reply: "Bring it on."
Here I want to ask a question that is raised by the latest change: Is there any principled basis for it? The Senate (or rather, nearly all Democratic Senators and no Republican Senators) voted to retain the requirement of 60 votes for cloture on legislation and Supreme Court nominees but to go to a rule of simple majority for cloture on appointments of executive officials and lower court judges. I assume that there are numerous political and pragmatic accounts one could give for drawing the line there, but the question is whether there is any reason of principle. My answer is maybe.
The case for the filibuster is weak with respect to executive appointees, who are supposed to carry out the President's program. The Senate has a role to play in ensuring the professional qualifications of such appointees but beyond that, it is hard to see why a minority in the Senate should be entitled to prevent the President from assembling his or her own team.
The case for the filibuster is also fairly weak with respect to ordinary legislation. It's true--as Washington reportedly said to Jefferson--that the Senate's purpose is to cool hot passions, and a supermajority requirement for ordinary legislation serves that purpose. But the Constitution pretty clearly indicates that the ordinary Article I, Section 7 process for legislating requires only a majority vote of each chamber. That's a negative implication from the Constitution's inclusion of specific supermajority requirements for other matters, such as overriding a veto, proposing constitutional amendments and ratifying treaties. And the Senate can play the role of "cooling saucer" even without the filibuster, simply by virtue of the longer, staggered, terms that Senators serve. In preserving the filibuster for ordinary legislation, perhaps the Senate Democrats who supported Reid's nuclear option disagreed, thinking that the filibuster remains important for the cooling function of the Senate.
The case for the filibuster is probably strongest with respect to judicial appointments. After all, federal judges and Justices serve for life and are meant to be politically independent. In principle, a super-majority requirement for judicial appointees should induce Presidents to nominate moderates rather than ideologues. (For an argument along these lines, see Christopher Eisgruber's The Next Justice.) But it doesn't always work out that way, especially not lately.
Is there a reason to distinguish between lower court judges and Supreme Court Justices? Here I suppose one might say that a filibuster should be reserved for extraordinary circumstances and that lower federal court judges simply don't exercise sufficient power to render the nomination of any particular judge extraordinary. By contrast, we can at least imagine a Supreme Court nomination presenting extraordinary circumstances that warrant the extreme step of a filibuster.
All that said, like most commentators, I expect the filibuster to disappear in all incarnations at some point in the not-too-distant future.
This past Thursday was a bit of an odd day for me. In writing my Verdict column, as I was trying to come up with a list of things that Republicans might offer to Democrats as part of "real bargaining" (as opposed to hostage-taking), I noted that "Democrats want Republicans to stop filibustering the President's judicial nominees." Later in the day, when I wrote my Dorf on Law post, I described how the lack of a neutral baseline defining the rules of "true football" made recent complaints about rules changes in the NFL ring hollow.
Several commenters on my DoL post noted immediately that my analysis there could easily apply to Republicans' complaints about the changes that Democrats had passed in the filibuster rules that day. One commenter said that he assumed that I had intended the comparison. I have to admit that I was not doing any such thing. I had, in fact, not even been checking my usual news sites for a couple of days. Even though I knew that the filibuster was suddenly a hot topic again, I did not know about the vote, and I certainly had not read any of the Republicans' specious complaints.
Now that I have caught up on the news, however, I see that the comparison is even more apt than I could ever have planned. My point in Thursday's post was that you can just as easily have football with rules that "favor the defense" as you can with offense-favoring rules, and the only thing that you can say is that the two sets of rules are different. You can assess whether you like the way the game is played under the two sets of rules, applying some external set of criteria, but you cannot say that one game's rules fundamentally differ from some mythical "rules of nature" that supposedly define football.
The over-heated, silly comments that we have been hearing from current and retired NFL defensive players are nothing compared to the Republicans' complaints about Thursday's changes. John McCain called them a "travesty," which amounts to little more than one of his usual temper tantrums. ("I liked the old rules. The new rules are a travesty!") He can complain about losing his power all he likes, but if by travesty he means "travesty of justice," he is simply wrong, because there is no baseline definition of justice that requires the Senate to have a 60-vote requirement (or any other number) to confirm executive and judicial nominees.
The essence of the silliness, however, was captured by faux-moderate Republican Senator Lamar Alexander, whose name appeared on the byline of an op-ed in the Washington Post on Friday. Alexander was at least correct to point out that Democrats have similarly raved about the sanctity of the filibuster in their time, quoting Sen. Carl Levin (who was quoting former Republican Sen. Arthur Vandenberg) as follows: "If a majority of the Senate can change its rules at any time, there are no rules."
Other than the "gotcha" aspect of this line having once been uttered by a Democrat (although Levin himself voted against the changes on Thursday), where is the content here? Beyond the complete lack of a filibuster in the Constitution or any other authoritative source of law, what does it mean to say that there are no rules because the Senate can change the rules at any time? The process of making rules is apparently still set by majority rule. Otherwise, the 52-48 vote would not have changed anything. But that rule is just as arbitrary (albeit appealing to core notions of democracy) than a rule that requires that, say, a procedure cannot be changed until the change has been voted upon three times, with progressively larger numbers of Senators voting for it on each iteration. That fanciful rule, like any other, could be gamed, just as the most recent version of the filibuster procedure had been gamed.
So, yes, the similarities between the complaints about recent NFL rule changes and the Republican outcry about the filibuster changes made the timing of my Thursday post inadvertently apt. Both sets of complaints are based on the fundamental error of claiming that one's preferred set of rules is "right" in some deep sense of an "untilted playing field." This is obviously not to say that any set of rules is as good as any other, but that the goodness or badness of the rules cannot be assessed by some appeal to a Platonic ideal of rules.
It is one thing to listen to people like Ray Lewis and Mike Golic complain about the loss of the good ol' days when they could more easily injure their opponents. Seeing Republican Senators talk about the august nature of the Senate, while insulting the intelligence of anyone listening to their whining, is quite another. Beyond the Republicans' completely situational complaints, however, there is an additional interesting lesson to be learned from last week's events.
As I noted above, my Verdict column offhandedly included a reference to the raft of Republican filibusters of Obama's judicial nominees. (I could also have mentioned their filibusters of his executive-branch nominees, and their filibusters of legislation, the latter of which are still possible under the new rules.) I offered this example in the same generic category as tax increases on the rich, or labor law reforms. The idea was that the Republicans could use the filibuster as one of their bargaining chips. For example, they could say: "I'll agree not to filibuster 10 of your judicial nominations, and I'll also give you a $2-per-hour increase in the minimum wage, a tripling of the budget for Food Stamps, and a reduction in the eligibility age for Medicare to 25, if you'll agree to repeal the ACA, and ... ."
In the context of that column, I was merely expanding on a point that I had made a few weeks ago here on Dorf on Law, which is that negotiating requires giving as well as getting. This is in contrast to the threat not to increase the debt ceiling, and arguably also the threat to shut down the entire government, because the extreme damage from those actions is so different from the consequences of agreeing to the various tradeoffs involved in what used to count as normal legislating. ("You want the capital gains tax rate to go from 15% to 25%, and I want it to go down to 12%. I think things will be worse than necessary if we compromise at 19%, but I don't have the votes to push it lower. Oh well.")
Now consider what the Republicans have inadvertently revealed. The basic objection to Republican hostage-taking regarding the debt ceiling is that there is no legitimate policy interest in refusing to increase the debt ceiling (and thus preventing the country from honoring its commitments), because the normal legislative process will determine the level of debt in the future. This, in turn, means that if Republicans refuse to increase the debt ceiling, and thus risk destroying the financial system and the economy, the President must choose not to negotiate with hostage-takers, because there are legitimate means by which one's debt goals could be reached.
It is true, of course, that people can and do negotiate with hostage-takers all the time. Republicans thus try to meta-frame the argument by saying that the President could negotiate over the debt ceiling (again), so he is the one who would be responsible for any harm that might come to the hostages. That, however, is no different from a kidnapper shooting his victim and then saying, "See what you made me do?!"
When President Obama agreed to negotiate over the debt ceiling in 2011, he did not have to do so, and doing so was quickly seen to have been a grave mistake. Yet he had acted as if negotiating over the debt ceiling was just another normal part of the log-rolling process by which legislation is created.
For the past five years, Senate Democrats had been going along with the idea that it was normal and acceptable to have to garner 60 votes to do anything. Republicans not only threatened to use the filibuster, but they used it repeatedly. Finally, Democrats said, "Hey, we don't have to do this anymore. We've been begging them to do things differently, and we probably would have agreed not to do this if they had allowed even one of Obama's DC Circuit nominees to go through. Time to stop negotiating, because there is nothing stopping us from getting what we want without having to give them anything."
I suspect that the same thing will happen, if the Republicans ultimately carry through on their threats not to increase the debt ceiling. The President will find a way to invoke Buchanan-Dorf, the Republicans will scream about lawlessness, and so on. What we saw last week was a smaller version of that category of political standoffs where one side suddenly realizes that they have been needlessly constraining themselves. While it is always admirable to see partisans refuse to exercise the full extent of their powers (for reasons of comity, public relations, and so on), last week's events are a telling example of what happens when one side overplays its hand.
Notwithstanding Prof. Buchanan's observation earlier today that there was no new substantive post, let me assure readers that there's a lot in the works. Prof. Hockett will have a post on central banks up soon in which he builds upon my observations earlier in the week regarding the serendipitous independence of the Fed.
Meanwhile, various readers have asked me what I think about the change in the cloture rule in the Senate (aka the nuclear option that has now been exercised). The answer is it's complicated and so rather than dash something up immediately, I'm going to think about it for a while and probably write my next Verdict column about that topic--which will run in 12 days along with an accompanying blog post. Between now and then, I'll also revisit the Richie Incognito story (as promised earlier this week), and next week will feature more by Prof. Buchanan, a follow-up by Prof. Kalhan on the continuing stop-and-frisk 2d Circuit litigation, and a piece by Prof. Colb to accompany her forthcoming Verdict column on the recently argued Supreme Court case involving a sentence enhancement for causing death via heroin.
So stay tuned!
It is a busy Friday, and as a result of some coordination difficulties, there is no new post for Dorf on Law today. I will just take this opportunity to provide a link to my Verdict column from yesterday: "Republicans Need to Understand That It Is Possible to Negotiate Without Taking Hostages." I plan to write a post here on Monday, expanding on one aspect of that column.
UPDATE: Happily, we are all now fully in sync, with Professor Dorf offering a quick preview of the next two weeks' posts, and Professor Hockett providing an excellent post re the Fed's independence.
For the last few months, I have gotten into the habit of watching "Mike & Mike in the Morning," a sports talk radio show on ESPN2. Unlike almost all of the other sports talk shows, that show features reasonable discussions by knowledgeable people about interesting questions. There is no contrived controversy (except when they are being very obvious about their contrivance, allowing the audience to be in on the joke), and there is very little mindless tough-guy talk.
The show has handled almost every major topic quite well, with the hosts (Mike Greenberg, a sports reporter now in his 40's, and Mike Golic, a former NFL defensive end who recently turned 50) taking informed positions -- often the same position, because they do not feel compelled to gin up controversy -- while also being willing to present contrary evidence and arguments, and to engage in serious conversations with guests whose views differ. Their recent handling of the Martin-Incognito bullying allegations has been exemplary, as was their treatment this morning of the developments regarding a sexual assault allegation against the quarterback for Florida State.
The show has, however, fallen down significantly regarding two issues. The first is an extended series of jokes mocking veganism. I might discuss that issue more in a future post, but here I will only say that it is beneath them. They know better, yet they are gleefully engaging in a display of ignorance that should embarrass and shame them. The second issue is the recent changes to NFL rules that are designed to reduce injuries to offensive players, especially quarterbacks. There, the discussion has been bizarre and simply wrong, but in a surprisingly interesting way.
The reason that I find rules changes in sports interesting is that they provide such a clear analogy to changes in the rules that govern the economy, and society in general. As I have discussed many times on Dorf on Law (see, e.g., here and here), standard economic analysis founders on "the baseline problem" (note: this is not a basketball reference), which is the simple observation that there is no "natural" set of rules to govern society. If you change, say, patent laws so that inventions are easier to protect from competition than they currently are, there is no legitimate way to decide whether the old rules or the new rules are the correct baseline, with all other rules counting as deviations from that baseline. This makes it pointless to discuss, most prominently, whether legal changes are "pareto-efficient," because you can only describe what is inefficient by comparing it to some arbitrary baseline that you have deemed "correct" in some sense.
This argument is often difficult to comprehend in society at large, because there are so many moving parts to the legal system and the economy, and because people have so many unexamined assumptions about what should be included in the baseline. Therefore, when I teach this concept in my classes, I almost always refer to some sport or other game to illustrate the point. If tennis, for example, did not allow second serves after a "fault," then the game would be different, because servers would have to be more careful. There is nothing right or wrong about either rule. That the current game allows a second serve is simply a historical baseline, but not a logical one. [NOTE: I have corrected the third sentence in this paragraph, which begins "If tennis ... ," to reflect my intended meaning. I had misused the word "let" in the originally published version of this post.]
What I find funny about the current debate about the NFL's safety initiative is how nutty so many people have become in discussing it. I do not find it surprising when, for example, Mike Ditka says silly stuff about injuries being "just football." What I do find interesting is how many current and former defensive players are somehow viewing the rules changes as utterly illegitimate, making it "impossible to play defense." (The most ridiculous of these statements came from the recently retired Ray Lewis, who not only complained about the new rules, but he actually screamed that the league needs to respect the players' "manhood." He is an embarrassment, at best, but that example is hardly his greatest sin.)
This meme, that the defense is being harmed by rules changes, has been a recurring complaint from Mike Golic over the years, and he is especially incensed now. In a way, I understand how much he takes it all personally. He is evidently thinking, "Gee, when I played, a lot of what I did would have been penalized under the new rules. But I wasn't a dirty player, so there's something wrong with the new rules." His argument, however, perfectly captures the failure to think about the arbitrary nature of the rules of the game.
For example, he once argued that a rule change made it "harder to do my job." Well, yes and no. If his "job" is to sack the quarterback, then many rules make it harder for him to do his job. He cannot grab the offensive lineman by the face mask, twist it, and thrown the man to the ground. He cannot kick other players, or gouge their eyes with his fingers. He cannot slap opponents' helmets to disorient them. (Note that some of these examples were "just football plays" back in the day.) If a new rule increases the likelihood that a defender will be flagged and fined for a now-illegal hit on a quarterback, then Golic's job really is more difficult.
Of course, there are plenty of rules that make it harder than it could be for offensive players to do their jobs. They, too, cannot grab face masks. (Need I mention that nobody is allowed to carry a gun? That, too, is a rule that could be changed.) They can be flagged for "holding," with the definition of holding itself changing over the years. They cannot engage in a "crack-back block," which was an especially dangerous type of block that ended many, many defensive players' careers due to knee injuries.
When the rules are changed in a way that seems to favor the offense, that requires all players to adjust. If Golic were playing today, he would not do what he used to do. He would have to do things differently, and he would. I can see why he might say that the adjustment is too difficult, or that the fines seem too large to him, but the idea that the rules changes are fundamentally unfair is simply bizarre. Even Mike Greenberg, who never played, actually made the claim on yesterday's show that the playing field used to be even between offense and defense, but it has now become tilted against the defense. (He even illustrated the tilting with hand gestures.)
There is no question that the defensive players now need to adjust to the new rules. But it is beyond absurd to say that the playing field is unfairly tilted against the defense, or that the defenders can no longer "do their jobs." Their jobs, after all, are to play within the rules to prevent the other team from scoring. Well into the 1990's, players like Deion Sanders were applauded when they would "clothesline" other players. The vaunted Chicago Bears defense on their 1985 Super Bowl team included two defensive backs who bragged about blindsiding offensive players when the referees were not looking, referring to their activity as "head-hunting" and "just having fun, when the game got out of hand." Golic himself has talked about the mayhem that ensued when there was a turnover, and defensive players would target offensive players for vicious hits.
The point is that both teams in every game field a defense and an offense. So long as the rules are enforced evenly, the playing field is not tilted. To his great credit, former NFL coach Tony Dungy made this point -- finally! -- on this morning's show. (And to their credit, Mike and Mike did not mock him.) It is a different set of rules, which defensive players do not like, because their usual way of doing things is changing. So be it. Back in the 1970's, when some rule changes were instituted to protect quarterbacks, the Steelers' linebacker Jack Lambert groused, "Why don't we just put skirts on 'em?" One expects a certain caveman element in the league, I suppose, but there is no reason to take this whining seriously.
Of course, there is a gray area where rule changes could completely change a game. If the NFL switched to a round ball, and points were scored by putting the ball through a hoop, then it would not look like football anymore. Mark Schlereth, the former offensive lineman, argued today that the NFL's rule changes could soon lead to an NFL team qualifying for the World Cup, a humorous way to say that the essence of the game is its inherent violence and risk of injury to the players. Based on where we are, however, that slope looks neither slippery nor steep (nor short). At least Schlereth, however, is making a plausible argument.
Yes, changing the rules changes the way the game is played. That is the point. Changing the rules does not make it harder for defensive players to "make a living," because there will still be people paid to play defense, even under the new rules. If the NFL changed the rules so that offensive teams were given three downs to go ten yards (or 5 downs to go 20 yards, or whatever), the game would change. In a league where players are still lost for the season nearly every week due to serious injuries, we are a long way from a time when football looks like ballroom dancing.
Even people who disagree with me about the current state of affairs, however, should at least get a grip and understand that what they are arguing about is not a violation of some natural God-given baseline, but simply humans adjusting the rules in an effort to reduce the carnage of a game that has become ever more dangerous, even as the rules have changed to protect the players from the worst kinds of injuries.
In addition to highlighting three recent publications of mine, in this post I'll say a few words about my ambivalence about Obamacare.
(1) My latest Verdict column offers the provocative suggestion that some of the apologists for Richie Incognito's bullying/hazing/arguably-criminal-conduct-towards Jonathan Martin rely on a view of character building that the U.S. Supreme Court uncritically accepted in United States v. Virginia, a 1996 landmark sex discrimination case involving the Virginia Military Institute. I'll have a follow-up blog post on it next week.
(2) A recent issue of the Boston University Law Review includes a somewhat revised version of my review of Jim Fleming and Linda McClain's book, Ordered Liberty. I previously blogged about the book and my take on it here and here. A short version of my review then appeared on Balkinization, as did a response by Fleming and McClain. The BU L Rev also includes a somewhat revised version of their response. To recap very briefly, I argue that Fleming and McClain include in their book a misguided liberal argument for freedom that parallels the religious "theodicy"--i.e., the idea that evil exists because humans have free will. In their responses, Fleming and McClain say that I misunderstand them to be making a theodicean argument they do not make, but as I note in my BU L Rev essay, I think that is pretty clearly what they wrote in their book--even if it is not what they intended to write. See, in particular, my footnote 10. In any event, as I explain in the review, whatever views Fleming and McClain themselves expressed or intended to express with respect to liberal theodicean argument, the argument itself can be found in the work of various liberals, and should be resisted by other liberals (like Fleming, McClain and myself) because it is a bad argument.
(3) The latest issue of the Texas Law Review contains my review of Andrew Koppelman's book, The Tough Luck Constitution. The book, which I highly recommend to readers, is a concise and punchy recounting of the litigation that challenged the constitutionality of the Affordable Care Act (ACA/Obamacare). Koppelman argues that "tough luck libertarianism" played a substantial role in shaping the views of the conservative Justices. I say in my review that tough luck libertarianism played less of a role than Koppelman thinks it did, because, I argue, Koppelman and other liberal constitutional law scholars (including me during the pendency of the litigation) did not take the conservatives' commitment to judicially enforceable federalism sufficiently seriously. I also explain how it is that the conservative Justices, with the exception of the Chief Justice, apparently failed to appreciate the partisan stakes of the case, even as those very partisan stakes led them to see the case as they did. I call this phenomenon "nonpartisan framing," using Bush v. Gore as a comparator.
My review is not exactly a mea culpa. I continue to think that the Court should have upheld the ACA under the Commerce Clause and should have upheld the Medicaid expansion under the Spending Clause. But I do think I was wrong to have regarded the argument against the ACA insurance mandate's constitutionality as essentially frivolous. In the heat of the battle, I--and other liberal scholars--seem to have forgotten how malleable constitutional doctrine can be. Put differently, I think the anti-mandate position of CJ Roberts and the four-Justice dissenting opinion in the ACA case was wrong but not more wrong than other doctrines that federalism-minded conservative Justices have invented in recent years, like state sovereign immunity doctrine (or doctrines in other areas tha liberal Justices have invented).
Why am I able to take a more philosophical and detached view of the case now? After all, the GOP obstructionism that first gave rise to the opposition to the originally-conservative-inspired ACA is very much with us. And with the flawed rollout of the health insurance exchanges potentially jeopardizing the ACA's viability, it might seem that the heat of battle remains quite hot.
The answer is that I don't have much enthusiasm for the ACA. Yes, I think that Obamacare is better than the status quo ante, but I share the sense of many critics on the left who find it maddening that the failures of the too-heavily-market-based approach of Obamacare is being used to discredit the sort of straightforward government program that our contemporary politics prevented Congress from enacting or the Obama Administration from even considering. For a fine statement of this critique from the left, see Robert Kuttner's recent piece on HuffPo.
Moreover, I have a further reason to keep the entire enterprise of health insurance reform at arm's length. From where I sit, it looks like nobody--not the left, the right or the center--is actually proposing anything that would subsantially improve Americans' health. Our health care reform politics is almost entirely about how to pay for medical and surgical interventions that mostly have a marginal impact on health. Obamacare has buried within it a few potential improvements relating to evidence-based medicine and the like. But the fundamental health problems Americans face are overwhelmingly a product of lifestyle choices involving (lack of) exercise and especially diet--and these are barely touched by Obamacare or anything else on offer.
Thus, for me, the entire constitutional debate about the ACA has always been upside-down. The infamous broccoli hypothetical was offered as the end of the road of a parade of horribles, when it should have been the grand marshal of a parade of wonderfuls. I concede that, absent extraordinary circumstances, no government should have the power to force-feed its citizens broccoli or anything else, but our government could do much much more to encourage people to eat more fruits and vegetables and fewer animal products and processed foods. At the very least, a sensible national health policy would begin by ending the government programs that encourage people to eat unhealthy diets by artificially lowering the price of such foods.
In the end, I care about the ACA partly as a small practical step in the right direction but more as a symbol and political tool: Failure of the ACA would be widely viewed as failure of the Democratic Party, which would have far-reaching implications on all sorts of collateral issues I care about, including environmental regulation, judicial appointments, distributive justice, etc.
An NPR story yesterday morning more or less confirmed what most Keynesians and neo-Keynesians (including the WSJ reporter who was interviewed for the story) have been saying for some time: The current focus on deficit reduction in the U.S. and austerity in Europe are drags on the economy. The reporters note that the latest data show that the U.S. economy has grown at a faster rate than Japan's, which, in turn, has lately grown at a faster rate than that of the EU zone economies, which are essentially stagnant.
Those data only roughly confirm Keynesianism because of the somewhat mixed picture of economic policy in the three regions. Japan has lately been pursuing both monetary and fiscal stimulus; the U.S. has been pursuing monetary stimulus (via the Fed) and fiscal austerity (via Congress and the President); Europe has been pursuing monetary austerity (until an extremely recent announcement of credit relaxation by the ECB) and fiscal austerity (at least in the most troubled countries, such as Greece, Italy and Spain). A robust confirmation of Keynesianism would have Japan in the lead, followed by the U.S., followed by Europe, rather than the U.S. ahead of Japan, but Austrian/Austerion policy clearly does badly here, since it would predict that Europe would be in the lead, followed by the U.S., then Japan. In fact, a number of factors explain the better recent performance of the U.S. economy than that of Japan, including long-term economic and demographic trends in the two countries.
In any event, suppose that the NPR and WSJ reporters are correct (as I believe that they are) that, all things considered, loose credit and substantial deficit spending would have been better for the U.S. economy over the last five years than the policy we have had--loose credit combined with an initial burst of too-small deficit spending followed by a premature effort to lower the deficit. If that supposition is correct, then it is owing almost entirely to a happy accident that the Fed has been able to use monetary policy to push back against some of the harmful effects of the political branches' fiscal policy. What accident is that? Why, Fed independence, of course.
To see the accidental nature of our better-than-it-could-have-been fortune over the last half-decade, consider why a polity might decide to make its central bank largely independent of political oversight. The standard reason is the fear that a politically accountable central bank will loosen the money supply in order to provide short-term stimulus so that incumbents can be re-elected, but that the medium-term effect will be inflation. In this account, sober central bankers are insulated from political pressure so that they can make the painful but necessary decision to tighten credit before inflation gets out of hand.
And yet, since the 2008 financial crisis, the Fed has been very sensibly pushing easy credit to the chagrin of a fair number of misguided lawmakers--especially but not exclusively on the right--who would have preferred monetary tightening to complement their fiscal austerity.
Well so what? Central bank independence may have been originally conceived as a means of ensuring we got tight monetary policy when needed, but it appears that it is also useful for ensuring loose monetary policy when that is what's needed. No harm, no foul, right?
Wrong. As a matter of institutional design, in a constitutional democracy, government institutions ought to be electorally accountable, at least absent some good reason for insulating them from politics. Thus, we have an unelected (and thus largely unaccountable) judiciary because the judiciary has a special role to play in protecting the rights of minorities and in insisting upon decisions according to the rule of law rather than partisan interest. Likewise, the traditional argument for an independent central bank relied on a special reason to depart from democratic accountability--namely, the risk, noted above, that politicians would manipulate the money supply for short-term advantage if given the opportunity.
In the current political climate, it's true that the Fed has been making economically sound decisions while the elected branches of the federal government have been foolishly pursuing deficit reduction, but there is no systematic, structural reason why elected officials can't be trusted to spend sufficient sums of public money to promote economic growth. Put differently, Congress has been pursuing bad economic policy for the last several years, but it's also been pursuing bad policy in other areas as well. The fact that I (or you) think the Fed has it right and Congress has it wrong is not a justification for a politically unaccountable Fed, any more than the fact that Congress has it wrong about environmental policy or agricultural policy is a justification for a politically unaccountable EPA or Dep't of Agriculture.
We are lucky that we have an independent Fed that's acting rationally, but it is luck that, in a deep sense, we don't deserve.
Two unrelated cases currently in the news illustrate the utility--and pitfalls--of dishonesty in adjudication. First consider the ongoing imbroglio over the 2d Cir panel's disqualification of Judge Scheindlin in the stop-and-frisk litigation, about which Prof. Kalhan has blogged here and here, while I have blogged here. In its initial October 31 order, the panel concluded "that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ('A judge should avoid impropriety and the appearance of impropriety in all activities.')." Then, last week, the panel issued a superseding opinion that "clarified" its earlier order as follows: "we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act."
Right. The panel is right that its initial order did not imply that Judge Scheindlin had violated the Code of Conduct; the initial order actually said that. So the clarifying opinion is in fact not a clarification but a reversal--except of course that the panel did not reverse its actual decision disqualifying Judge Scheindlin. This is so obviously dishonest to anyone who reads the order and the "clarifying" opinion that one can only assume that the panel believed that writing a dishonest opinion was better than its alternatives.
What were those alternatives? One would have been for the panel to withdraw its initial order and reinstate Judge Scheindlin. Another would have been for the panel to stick to its guns or double down. I assume that the panel was unwilling to withdraw its initial order due to some combination of pride (i.e., unwillingness to confess error) and result-orientation (i.e., the view that even if Judge Scheindlin didn't commit a technical violation of the ethical rules, she bent the law to get the substantive outcome she wanted and so the panel was justified in bending the disqualification rules to try to get the substantive outcome it thinks is right, given the time constraints imposed by the coming change in mayor). With the option of reversal effectively off the table, a dishonest opinion that aims to reassure the world that Judge Scheindlin is a good and honorable judge was better for the panel than an honest doubling down that might have risked en banc reversal.
Thus, in the stop-and-frisk disqualification satellite litigation, dishonesty served the interests of the Second Circuit panel judges. Whether it served the interests of justice and the broader public is a harder question, but we can find cases where dishonest rulings do appear to serve these wider interests. Consider Establishment Clause litigation.
Under a very straightforward and seemingly obvious reading of the Establishment Clause, all government invocations of the Divine (as opposed to, say, purely historical or cultural references) would be forbidden. An official motto such as "In God We Trust" on the money or the phrase "under God" in the Pledge of Allegiance would be recognized as unconstitutional for the message of exclusion such endorsements send to atheists, agnostics and polytheists. So too, official prayers at the beginning of legislative sessions would be impermissible.
To be sure, there is a principled way to avoid such results. The original Establishment Clause only limited the federal government and was adopted at a time when state and local establishments were common. The standard route to incorporation of most of the provisions of the Bill of Rights is a problematic basis for incorporating the Establishment Clause against the states because anti-Establishment is a structural principle, not a protection for individual rights of the sort protected by the Due Process Clause or the Privileges or Immunities Clause. Accordingly, there is a good originalist argument for saying that the Establishment Clause doesn't apply to state and local governments. But such a holding should be rejected on three grounds: 1) Stare decisis; 2) the originalist argument here relies on the now-mostly-disfavord expectations version of originalism rather than semantic originalism; and 3) it would be crazy and harmful to say that the Establishment Clause imposes no limits on state government, as that would allow such things as clearly sectarian organized prayer in public schools and even permit states to adopt Catholicism or Mormonism or Sunni Islam or whatever as the official state religion to be supported through taxation.
Without a principled means of avoiding the conclusion that the Establishment Clause bars all religious assertions by government, the Court could try to enforce that principle, but it does not do so, and for a good--if not exactly a principled--reason: The Justices understand that the American people would not accept a full-throated interpretation of the Establishment Clause. Thus, to limit backlash, the Court has tried to avoid the implications of the Establishment Clause with a number of hand-waving distinctions.
For instance, various Justices have, at various points, dismissed real or hypothetical challenges to such things as the motto "In God We Trust" as mere "ceremonial Deism"--the fictive idea that invocations of a single God are meant only to solemnify rather than to assert any religious conception of the Divine. To see that this is bunk, imagine that you as a monotheist lived in a country with a clear polytheist majority where the official motto was "Blessed by All the gods" or "Fearful of the Wrath of the gods on Olympus". Would you think that this was mere ceremonial polytheism?
Nonetheless, while ceremonial Deism is bunk, it is useful bunk, because it enables those Justices who invoke it to avoid either having to make dreadful substantive decisions (like saying the Establishment Clause doesn't limit the states) or to make correct principled decisions that will spark backlash among the large segment of the population who believe that there really is a war on Christmas. Indeed, in many parts of the country, the American people do not even accept the watered down version of the Establishment Clause that the Court does acknowledge.
Another mechanism the Court uses to avoid the implications of the Establishment Clause is the "tradition exception," as articulated in Marsh v. Chambers. There the Court rejected an Establishment Clause challenge to official legislative prayer on the grounds that it was part of an ongoing tradition dating to the Founding. This too was bunk, because in other areas longstanding tradition is not necessarily enough to overcome compelling arguments for unconstitutionality. To be sure, longstanding tradition could be relevant to an expectations originalist interpretation, but as noted above, the Court (quite sensibly) does not consistently apply expectations originalism in Establishment Clause jurisprudence or more generally. Nonetheless, the tradition exception was useful in a case like Marsh because it meant that the Court could reject an Establishment Clause challenge without doing more widespread damage to its Establishment Clause jurisprudence. The very dishonesty of the reasoning served to limit it.
The problem is that lies often beget more lies. Steve asks Joan out for a drink; Joan likes Steve but finds him unattractive; to spare his feelings, she says she is too busy with work; Steve then runs into Joan, who is out on a date with Bill; Joan can admit that she wasn't too busy, just too busy for the likes of him, or she can lie some more, perhaps introducing Bill as her cousin who is unexpectedly visiting from out of town.
Likewise with the Court. Having pretended in Marsh that tradition justifies legislative prayer, what does it do now, in Town of Greece v. Galloway, where the Court must answer the question of just how to interpret the scope of the tradition exception? Does it apply to overtly sectarian prayer? If not, who decides whether a prayer is too sectarian and by what standards? Etc. Unless the Court "comes clean" and says that the tradition exception was always a pragmatic compromise, it cannot fashion a principled way of smoothing the boundary between the general doctrine and the unprincipled exception. Accordingly, I expect the Court to resolve the case by saying the jurisprudential equivalent of "it's not you, it's me."
In yesterday's post, I returned to the question of whether the President has any power under the Constitution to end a government shutdown. In a post two weeks ago, I had described an argument from the historian Sean Wilentz, who claimed that President Obama could have simply ended the October shutdown unilaterally, by analogizing Tea Party-led nihilism to the insurrections that Andrew Jackson and Abraham Lincoln overcame with executive action. Although I had initially felt some attraction to the Wilentz argument, I ultimately came down against it.
My initial post describing that argument was written on November 1, after I had participated in a quasi-debate at the National Constitution Center in Philadelphia. That event, however, was mostly concerned with the debt ceiling, not the shutdown. Professor Wilentz advocated what is now known as "the Fourteenth Amendment argument." I argued the Buchanan-Dorf "least unconstitutional option" argument. The third panelist, Ilya Shapiro from the Cato Institute, argued against both positions. Because my November 1 post focused on the shutdown, I have not yet written down my takeaways from the debt ceiling portion of the Philadelphia debate.
To a certain degree, the debate was not a true airing of different opinions. The panel was "balanced" in a way that made some sense under the circumstances, with two liberals taking different positions and a conservative/libertarian disagreeing. The problem is that, as Professor Dorf and I have been saying for some time, the merits of the debt ceiling debate really should not line up along standard liberal-conservative lines. There is as much reason for conservatives and libertarians to agree with us as there is for liberals to do so. Only conservative commentators who view their role as being on-call advocates for the Republican Party's argument du jour would automatically take the position that the debt ceiling is the most important law on the books.
Whatever else one might say about the Cato Institute, it is most definitely not a reliable lapdog for the Republican Party. On the debt ceiling issue, in fact, the institute's director had written a commentary in 2011 that was highly congenial to the arguments that Professor Wilentz and I have made about the Fourteenth Amendment.
But Mr. Shapiro understood that the point of the quasi-debate was to generate (friendly) disagreement, and he gamely agreed to argue as aggressively as possible that the debt ceiling is inviolable. He thus made the various arguments that have been reported in the press, and tried to argue the points as well as he could (given his lack of commitment to them). If anything I write here sounds like criticism, therefore, it is aimed not at Shapiro but at the arguments that he channeled for the sake of the event.
In any case, I came out of the event with a renewed appreciation of the extreme degree to which the debate over the debt ceiling has been driven by purely rhetorical, non-substantive arguments. In any debate about legal and constitutional principles, of course, the discussion will center on the meanings of words. Line-drawing will matter, categories will be distinguished, and so on. Even so, it has continued to amaze me that the people who disagree with my position on the debt ceiling have so nakedly relied on empty rhetoric.
One simple example is the tendency to characterize the Buchanan-Dorf position as "having the President blow past the debt ceiling." Our position is exactly the opposite: It is Congress that has exceeded the debt ceiling, even as it has refused to increase it, and the President's least-bad choice is to honor the obligations to which Congress has already committed the country. Still, the "blowing past the ceiling" rhetoric has been a recurrent theme in media coverage.
More fundamentally, the rhetoric is driven by misuse of the word debt itself. Professor Dorf once described the Republicans' political use of the term "debt ceiling" as little more than a pun (or, at best, a bad play on words): People do not like debt (for reasons that are completely misinformed, but I digress), so we can solve that problem by putting a ceiling on the debt. Of course, you can call the debt ceiling law anything you like, but it does not change the reality that people who want to limit debt can do so only by making legal commitments that require less borrowing.
The other play on words, which I have noted in the past, is the use of the term "cut spending" to describe what the President would do if he were to decide to default on the nation's legal obligations. Again, the public has come to believe that "government spending" is a bad thing (for equally misinformed reasons, with Republicans largely abetted by Democrats in convincing the public of a gross distortion), so they do not understand what is so bad about having the President stay under the debt ceiling by "cutting spending."
Even Professor Dorf and I have both used the term "cut spending" in our various writings to describe what the President should not do if faced with a trilemma. But that is an imprecise phrase, because it misses the key distinction between spending to which the government is already legally obligated, and decisions about spending levels that might be made in the future. Calling default "spending cuts" confuses the issue, and it gives undue credibility in the public's mind to what should properly be understood as violating the law.
At one point during our debate in Philadelphia, Mr. Shapiro ventured another line (not really an argument) that has been proffered by other critics. When Buchanan and Dorf describe something as "least unconstitutional" (which is the key term in the title of our first article about the debt ceiling), the claim is that this makes as little sense as saying that one pregnant woman is "less pregnant" than another pregnant woman. Pregnant is pregnant, and unconstitutional is unconstitutional.
This is, at an initial level, just another example of the failure by those who disagree with us actually to engage with our arguments. We discussed this very question at length in our scholarship, but people who never bothered to read past the title of the first law review article would not be aware of that.
More to the point, however, it simply does not matter what we call it. Even if one took this non-argument to be more than a punch line, where would that leave us? The President still has nothing but unconstitutional choices, including the one that some people incorrectly describe as doing "nothing" (that is, refusing to honor the government's financial obligations, in full and on time). Once we have stopped giggling about whether a woman can be a little bit pregnant, what are we telling the President to do?
In other words, saying that one cannot compare degrees of unconstitutionality does nothing to solve the President's trilemma. We could just as easily have called our recommendation the "constitutionally required option," but we wanted to be clear that the Republicans are irresponsbily forcing the President into a constitutional bind. Objecting by saying that all of his choices are unconstitutional merely recognizes the puzzle, without giving the President a decision rule.
Last month, Professor Dorf engaged with another rhetorical move by one of our detractors, Professor Eric Posner. Posner's complaint was that we had said that the President would have to choose among unconstitutional options, but he argued that there was no way a President would ever publicly utter the words, "I am choosing this unconstitutional option, because it's less bad than the others." No President could ever admit that he was acting unconstitutionally. Professor Dorf eviscerated that argument, showing that Professor Posner's rhetoric about rhetoric was even more silly than usual, because it simply does not matter whether the President describes his choices as "least unconstitutional" or "constitutioanlly required," or anything else. Political salesmanship is completely irrelevant to our constitutional analysis.
Which brings me back to the title of this post. Maybe our "least unconstitutional option" needs a new name, to satisfy the people who have become fixated on that term. I therefore propose that henceforth, the Buchanan-Dorf recommendation be known as “the happy cuddly puppy option.” The underlying argument is that the Constitution requires the President to treat appropriations laws and tax laws as more important than the debt ceiling law, but people who need a different label can use the new one. Or, maybe people could grow up and pay attention to the substance of the argument.
On November 1, I wrote a post here on Dorf on Law that asked: "What Can We Say About Government Shutdowns That Is Not (Completely) Related to the Debt Ceiling?" That post focused on the "other half" of the big fiscal policy crisis that enveloped the country until October 16, to wit, the government shutdown. (The "first half" being, of course, the debt ceiling.) In that post, I engaged with the question of whether there is anything to say about the government shutdown that does not simply boil down to talking about the political consequences of the two sides' failure to reach an agreement. That is, is there a legal -- ideally a constitutional -- argument that would help us to avoid a possible future filled with more shutdowns and budget brinksmanship?
I then tentatively -- one might even fairly say gingerly -- said some positive things about an argument that the historian Sean Wilentz offered at a "debate" at the National Constitution Center, in which I had participated on October 29. Professor Wilentz offered the provocative idea that President Obama could have refused to shut down the government, even in the absence of appropriations laws that are normally required to allow the government to operate, on the basis that the executive has a unique Constitutional responsibility to protect the republic. He invoked the idea of "insurrection," noting that Presidents Andrew Jackson and Abraham Lincoln had taken actions in defiance of what amounted to members of Congress refusing to do their duty under the Constitution.
Professor Wilentz, as I noted in my earlier post, is fully aware that he is possibly opening a Pandora's Box. He had already felt compelled to dial back his argument, in response to people who likened his position to the Bush-Cheney(-Nixon) idea that the President can do anything he likes, because he is the President. I also noted that something along the Wilentz lines had actually happened during the October 1-17 shutdown, when Defense Secretary Hagel unilaterally called all of his employees back to work, essentially declaring that he was not going to allow Tea Party zealots to undermine the Pentagon's work. That move was surprisingly uncontroversial, but surely that was because it was the Defense Department that was involved. (Imagine what would have happened had it been the Environmental Protection Agency, or -- shudder -- the IRS, even though the day-to-day operations in those agencies are surely at least as important as the mundane work of non-essential Pentagon workers.)
As a constitutional matter, my greatest reservation about endorsing (even slightly) the Wilentz argument is that the argument has no connection at all to the Buchanan-Dorf "least unconstitutional option" argument regarding the debt ceiling. The most important difference is that Buchanan-Dorf is all about preserving the separation of powers, whereas Wilentz's argument is about blurring that separation.
Our argument, after all, is based on the fundamental idea that the President is constitutionally obligated to take the path that involves the least legislative-like action, and that preserves Congress's ability to undo after the fact what the President has done. And all of this is required, we argue, even after Congress itself, through its inaction, has put the President into an impossible situation. Further, we note that our argument is strengthened by the line-item veto case, in which the Supreme Court prevented Congress from actively and consciously giving away its legislative power. As a matter of incentives, moreover, we have argued that a President who responds to a trilemma by refusing to pay the government's obligations -- that is, who defaults -- would give Congress every incentive to become a sham legislature, passing spending laws that it knows the President will later rewrite.
In a comment on my November 1 post, Professor Dorf expressed his discomfort with the Wilentz position. In part, he noted correctly that there is now a bit of a "brand" to the Buchanan-Dorf argument, and he does not want that brand to be diluted. That is quite right. Not only is the Wilentz argument of a completely different type than ours, as I described just a moment ago, it is worth remembering just how much trouble we have had getting people to understand that our argument is NOT the same as the argument based on the Fourteenth Amendment. How much worse would it be if we also ended up saying, "We're all about preserving the separation of powers on the debt ceiling, but we're not when it comes to shutdowns"?!
Beyond that practical concern, what increasingly bothers me about the Wilentz approach to shutdowns is that it represents a further degradation of restraint in Washington. In a sense, nothing less than the rule of law is at stake, because we are in the process of trying to figure out whether anything other than elections (Dick Cheney's "accountability moments") should constrain political actors. To a large degree, the Bush-Cheney years demonstrated, through the absence of modesty and restraint, that much of what goes into the rule of law requires that everyone -- most definitely including the President -- show modesty and restraint.
I am aware, and somewhat sympathetic, to the argument that one side should not be naive, tying itself to legal rules and norms that the other side gleefully abandons. The most forceful version of that argument that I have heard was from Professor Catherine MacKinnon, when I took her Sex Equality course in law school. In response to an argument that feminists should be willing not to push the envelope, lest the other side use that as an excuse to blur the lines of the law in their own favor, MacKinnon essentially said that it is ridiculous to think that the other side would show any restraint at all, no matter what she or her allies might do. Expecting the other side to play by the rules, because we play by the rules, seemed not just naive but self-defeating.
A similar argument continues to simmer in the U.S. Senate over the filibuster. With three more successful Republican filibusters of Obama nominees to the DC Circuit recently, Democrats are again thinking about the "nuclear option," by which they would change the rules and either eliminate filibusters entirely, or at least make it easier to overcome a filibuster. Republicans are warning of all-out warfare if the Democrats make such a move. I am highly sympathetic to the retort from Democrats that the Republicans would not hesitate to change the rules in their favor even for a second, if the roles were reversed. In a MacKinnon-like argument, these Democrats say that their own restraint does nothing to preserve the long-term balance of power, and thus amounts to self-inflicted damage.
I am, nonetheless, still with Professor Dorf on this. As appealing as Professor Wilentz's argument is in the context of the recent shutdown, I hereby step back from my tentative near-endorsement in my November 1 post. As I suggested in that post, and as Professor Dorf emphasized in his comment on that post, the President's role as a political actor makes it nearly impossible to imagine a scenario in which he can be an aggressive proponent of his side's priorities in negotiations over spending, while also being the arbiter who says, "You know what? The failure of both sides to agree on a compromise allows me to simply refuse to shut down the government, because the other side is being too obstinate."
There will, of course, always be one-off situations in which we can imagine that a President would and should take extraordinary action, Lincoln's illegal actions to preserve the union being the most obvious. In a different context, Professor Dorf has argued that the "ticking time bomb" scenario will almost surely cause some Presidents -- understandably -- to take illegal actions. The point is that we have to do everything possible to hold that line, saying that we will never tolerate such actions, even though we know that we will. Otherwise, we are on the slipperiest of slopes.
As bad as government shutdowns are, they simply do not amount to ticking time bombs. The damage from shutdowns is large enough to matter politically, as it should, but not so large as to be generally irreparable or to justify sacrificing the rule of law. Even though the Republicans were truly being insane, to the point where Professor Wilentz could reasonably analogize their intransigence to insurrection, the best response is still for the Democrats to win the political battle in the longer term.
In my column for this week on Verdict, I discuss a federal lawsuit in Wisconsin that challenges a statute, informally known as the "cocaine mom" act, which provides for the incarceration of women abusing drugs and refusing to undergo treatment. In the column, I suggest some ways in which fetal protection laws, like the Wisconsin one, resemble anti-abortion legislation, along with some important ways in which the two types of legislation differ. In this post, I want to suggest that fetal protection policies may actually serve to undermine the objectives of the anti-abortion movement.
When a state passes a law to protect fetuses and embryos from maternal use of alcohol and other substances, the ostensible purpose is to prevent the ingestion of the prohibited substances and to compel the pregnant woman to take better care of her pregnancy. In the case the law might have contemplated, a pregnant woman goes to her doctor, and the doctor discovers that the woman is addicted to heroin. The doctor, then, gauges whether the woman is willing to undergo drug rehabilitation and, if she is not, he contacts the authorities who place the woman in custody and compel her to undergo such treatment. Once treated, the woman is better able to take the rest of her pregnancy to term without inducing either drug withdrawal or drug toxicity in her child.
In reality, however, pregnant women planning to visit the doctor may become aware of the fetal protection policy in place, particularly if authorities have enforced it with the sort of regularity necessary to make a substantial impact on troubled pregnancies. A pregnant woman contemplating a doctor visit and knowing of the policy would likely cancel her visit (or not schedule it in the first place), in the event that she either is using drugs on an ongoing basis (and intends to continue using them) or is trying to withdraw from the drugs without participating in a formal drug rehabilitation or treatment program. She presumably knows that her doctor will take urine and blood samples on a visit and might, upon discovering her drug use, threaten her with official intervention if she refuses to cooperate. Like a suspect considering whether to turn himself in to police, the prospect of incarceration is unlikely to prove very inviting to the pregnant woman using alcohol or drugs.
If women avoid the doctor as a reaction to fetal protection policies, then these policies themselves will have failed. After all, the last thing that a supporter of such policies wants is for the women at whom it is aimed to avoid going to the doctor altogether. There is another possibility, however, one that might -- on some readings -- be more consistent with the goals of fetal protection policies.
A pregnant woman using drugs or alcohol and worried about being discovered, either through a visit to the doctor or otherwise, may decide to terminate her pregnancy and thereby eliminate the problem. In other words, rather than trying to hide that she is doing something that could subject her to incarceration, she can simply have an abortion and remove herself from the category of people subject to the fetal protection policy. I say that this may be consistent with the aims of fetal protection legislation, because a major goal of such legislation is -- on my reading of them -- less about protecting the embryo or fetus itself than it is about preventing the birth of children who have been harmed or damaged by exposure to alcohol, drugs, or other toxic substances. An abortion prevents such a birth as effectively as does the choice to refrain from drugs or alcohol (or seek treatment to end an addiction).
Those who champion fetal protection policies, however, typically oppose abortion and may even regard fetal protection as a means of giving the unborn greater legal status. For these advocates, an abortion would certainly not be a desirable way of preventing the birth of children exposed to drugs or alcohol. On the contrary, it would be comparable to people avoiding getting into trouble for child abuse by taking the abuse to the next level and murdering the child in question. From the anti-abortion, perspective, if fetal protection policies served to motivate women to terminate their pregnancies, then such policies would be utterly counterproductive.
Perhaps for this reason, I have encountered people who identify strongly with the pro-life movement and who simultaneously oppose fetal protection policies. One such person in particular told me that he thinks it is a terrible mistake when doctors seek court orders to compel pregnant women to undergo a C-section, even when the doctors sincerely believe that a C-section is necessary to save the baby's life. This person views prohibitions on abortion as similar to other prohibitions against violence, while he views forced C-sections (and forced drug treatment) as coercive violence against the woman. He also believes that unlike a woman seeking an abortion, a woman who is conflicted about her medical situation should be supported and cared for, so she can make the best choice for her child, rather than coerced and punished so that she runs the other way. And this person may also worry, as I have suggested above, that the right to terminate a pregnancy coupled with fetal protection policies may together make abortion an appealing option for women who would otherwise opt for remaining pregnant.
In that sense, fetal protection policies may not only be against the interests of women's equality. They may ultimately prove to be against the interests of the fetuses and embryos they would appear to protect. For that reason, people who oppose abortion and advocate fetal protection laws, such as Wisconsin's, may want to reconsider their support. Making pregnancy more difficult and threatening to women could easily generate a desire to flee pregnancy and pursue abortion as a perverse form of "fetal protection."
As recently reported in the NY Times, state six states are currently refusing to issue spousal ID cards or to process federal benefits applications for same-sex spouses of military service members on the ground that to do so would violate state laws that deny legal recognition to same-sex marriages--despite the fact that Defense Secretary Hagel has taken the position that same-sex military spouses should be entitled to fully equal treatment with opposite-sex military spouses. Here I ask whether there is any basis in law for the resistance of state officials.
The short answer is no. State officials say that it would violate state law for them to comply with the orders but even assuming that is so, the state officials must comply because the Supremacy Clause means that in cases of conflict, federal law prevails over state law--unless the federal law itself is invalid. Is there any reason for thinking that the federal government lacks authority to require state militia officials--like those of the Texas State Guard who have instructed same-sex spouses that they must travel to distant federal bases to obtain their ID cards and to submit their paperwork--to conform to federal law?
Standing alone, the Constitution's Article II, Section 2, could be read to support the position of the recalcitrant states. It makes the President the Commander in Chief "of the Militia of the several States, when called into the actual Service of the United States" but by negative implication and in light of the 10th Amendment, reserves to the States the authority to govern the state militias when not called into actual service. So perhaps Texas et al could argue that neither the President nor the Secretary of Defense have authority to issue rules governing state militia officials--including rules governing who is married--when the militia members are on stateside reserve duty.
Yet that argument is fatally undermined by the clause of Article I, Section 8 that grants to Congress the power to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Insofar as States have reserved powers to conduct training of members of the National Guard, they must comply with rules set by Congress. And with the invalidation of DOMA § 3 in Windsor, the numerous statutes delegating authority for promulgating rules to the President and the Defense Secretary pretty clearly encompass the Hagel order.
Undergirding this analysis is the "dual enlistment" system that has been in place for decades, under which members of the National Guard are simultaneously in both the federal Guard and the state militia (and swear an oath to both), unless and until called to active federal duty, which terminates their state service. One might think this arrangement inconsistent with the state/federal division of labor that Articles I and II appear to assume, but the Supreme Court unanimously rejected that objection in 1990 in Perpich v. Dep't of Defense.
And that brings me, finally, to the Second Amendment. DC v. Heller and MacDonald v. City of Chicago have generally been coded as ideologically conservative and, in an important sense they obviously are: Gun rights are more popular on the right than the left. But in another sense, the triumph of the "individual right" view of the Second Amendment meant the defeat of another principle beloved by conservatives: federalism. Under the now-discarded "collective right" view of the Second Amendment, its purpose and import were to preserve state militias. Although no case law elaborated on exactly what that meant in practice, and although the Perpich Court failed to mention the Second Amendment at all, one plausible way to give the collective right teeth would have been to limit the scope of non-emergency nationalization of state militias. So it is at least a tiny bit ironic that some of the States that most strongly support the individual right view of the Second Amendment are the very ones that might have benefited from the alternative, collective right view of that Amendment, in constructing an argument for a state right to resist federal control of the militia. He who lives by the sword (or gun) dies by the sword (or gun).
In two recent DoL posts (here and here), Anil Kalhan described the extraordinary nature of the recent ruling by a panel of the US Court of Appeals for the 2d Circuit removing SDNY Judge Scheindlin from any further role in the litigation over NYC's stop-and-frisk policy. I agree with Professor Kalhan's analysis but here I want to ask a basic question that has been puzzling me and presumably puzzling readers as well: Given that Mayor-elect deBlasio will abandon the Bloomberg/Kelly stop-and-frisk policy regardless of how the litigation turns out, does any of this matter? The short answer is maybe, but for reasons that readers may find surprising.
Obviously the case matters for the legacy of the Bloomberg Administration. With their time in office drawing to a close, Mayor Bloomberg and Police Comm'r Kelly no doubt wish to remove what they regard as a major blemish from their record: The legal ruling by Judge Scheindlin that one of their chief crime suppression tactics was a massive violation of the civil rights of thousands upon thousands of New Yorkers. By characterizing Judge Scheindlin's ruling as the product of bias, they hope to discredit her ruling--and as Professor Kalhan discussed over the weekend, the lame-duck Bloomberg Administration wasted little time in arguing that the appeals court's decision to take the rest of the case from Judge Scheindlin fatally undermines the basis for the merits and remedy rulings she already issued.
But if legacy polishing explains the motives of the Bloomberg Administration, it does not explain the panel's actions. Let us assume that a majority of the appeals court panel believes that Judge Scheindlin's rulings on the merits and remedy were erroneous. It has been widely assumed that the panel was trying to rush the appeal through so that it could reverse Judge Scheindlin's ruling before deBlasio does withdraw the appeal. But why?
There is no precedential significance of losing the opportunity to reverse a district court ruling because federal district court rulings have no binding precedential effect, not even in the same district court and not even for the same district judge in a later case involving different parties. So the apparent rush to reverse Judge Scheindlin's opinion is a rush to reverse a nullity: If the appeals court reverses before deBlasio takes office, deBlasio ends stop-and-frisk on his own authority and the district court ruling is reversed; if deBlasio withdraws the appeal before the panel has a chance to rule, then deBlasio follows the district court ruling (by ending stop-and-frisk) but the ruling has the same non-precedential effect it always had. So either way, stop-and-frisk ends and the district court ruling itself does no damage (from the perspective of the appeals court).
Nonetheless, there are three ways in which the circumstances would be somewhat different depending on whether the panel gets a chance to opine on the merits and the remedy:
(1) If the appeals court actually reverses and vacates Judge Scheindlin's ruling then that ruling will have less persuasive value than it otherwise would, simply because an opinion that must be cited as "reversed and vacated on appeal" comes with a red flag. To be sure, a federal district court or a federal appeals court outside of the 2d Circuit could still cite Judge Scheindlin's opinion. It's not as though an appeals court that reverses a district court ruling dispatches an army of Winstons Smith to scrub the history books clean of the district court ruling. But still, as a symbolic matter, a case will seem more persuasive if it hasn't been officially reversed.
(2) The 2d Circuit panel could itself set a precedent on the merits by reversing the district court. Whereas Judge Scheindlin's opinion wasn't binding as a matter of precedent, an appeals court ruling reversing her opinion would be--at least in the 2d Circuit.
Despite these real considerations, it's still hard to figure out what to make of the appeals court's apparent zeal to undermine Judge Scheindlin because, as Professor Kalhan has noted, by the time the panel issued its disqualification decision, it had already made clear that the merits and remedy appeals would extend well into the deBlasio Administration. Perhaps the panel will now grant the City's request that the underlying rulings be reversed forthwith, but if it was going to do that, it probably would have done so when it took the case away from her in late October.
(3) Still, there is a remaining practical difference between an appeals court reversal and a de Blasio decision to throw in the towel. If the appeals court reverses Judge Scheindlin, then Mayor de Blasio can still eliminate stop-and-frisk. However, if the district court ruling is still in effect (because the appeal has been dropped), then de Blasio can go further. He can then take actions in compliance with the district court's remedial order even though he would lack the authority to take those actions in the absence of a judicial order. This issue lurks in the motion last week by the police unions, seeking to intervene on appeal on the City's side. The unions argue, among other things, that certain of the remedial measures Judge Scheindlin ordered would violate police union contracts. The Mayor cannot violate such contracts on his own authority but he can do so if necessary to comply with a federal district court ruling vindicating constitutional rights.
Should the police unions be permitted to intervene? So long as the City itself is a party, the right answer is probably: who cares? But once the City drops out (due to the change of Mayor), the unions might argue that they are entitled to continue to defend the old stop-and-frisk policy on appeal because they have a continuing stake in avoiding being subject to the remedial order.
At first blush, this argument for continued police union appellate standing even after Mayor deBlasio drops his appeal looks like it runs into trouble with Hollingsworth v. Perry, the Supreme Court's ruling earlier this year in the Prop 8 case. If the sponsors of a ballot initiative lack standing to defend the initiative once the political authorities have opted not to defend it against constitutional challenge on appeal (as the Court held), then why should police unions have standing to defend a government policy once the government authorities have opted not to defend it against constitutional challenge on appeal?
The answer, if there is one, would go like this: the sponsors of Prop 8 were trying to assert an interest in representing the sovereign, but the unions are asserting their members' own personal interest in having the City honor its contractual obligations. That may not be enough of an interest to warrant standing on appeal, but it does make the case somewhat different from Perry.
Indeed, even if the police unions lack standing to pursue the appeal once the City drops its appeal, the unions may be entitled to go back into court and collaterally challenge Judge Scheindlin's initial ruling in a new lawsuit. In Martin v. Wilks, the Supreme Court allowed white firefighters to bring a collateral challenge to an affirmative action program that had been established as part of a consent decree to settle a civil rights suit, on the ground that neither the white firefighters nor parties who effectively represented their interests had been parties to the original suit, and under longstanding principles, judgments only have preclusive effect on parties and those in privity with parties. To be sure, the 1991 Civil Rights Act purported to overrule Martin, but only with respect to employment cases, not as a general matter. Accordingly, if the police unions do indeed have a cognizable interest, they might be able to re-open Judge Scheindlin's remedial ruling down the road, even if they are denied the right to pursue an appeal now.
To be clear, none of the foregoing remotely justifies the appeals panel's rush to judgment against Judge Scheindlin--but it may begin to clarify what's at stake as a practical matter.
By Anil Kalhan
WNYC's @brigidbergin brings us this heartwarming photo of pals @deBlasioNYC and @MikeBloomberg having a laugh. pic.twitter.com/ZWS2viwIxc — Paul DeBenedetto (@pauldebenedetto) November 6, 2013
Events have moved quickly this week in the City of New York’s appeal of U.S. District Judge Shira A. Scheindlin’s decisions concluding that the New York Police Department has engaged in unconstitutional racial profiling in its “stop and frisk” practices. On Wednesday, several prominent lawyers and law professors—NYU Law School Professors Burt Neuborne, Norman Dorsen, and Arthur Miller; Yale Law School Professor Judith Resnik; and former New York City Corporation Counsel Frederick A.O. Schwartz, Jr.—filed a motion on behalf of Judge Scheindlin challenging last week’s decision by Second Circuit Judges José A. Cabranes, John M. Walker, Jr. and Barrington D. Parker, Jr., summarily concluding that she had violated the canons of judicial conduct and, on that basis, immediately dismissing her from presiding over the stop and frisk cases. The motion argues that the three judges “breach[ed] ... the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges” by failing to afford her notice and an opportunity to respond to its charges and violated the First and Fifth Amendments to the U.S. Constitution.
The next day, a spokesperson for outgoing Mayor Michael Bloomberg’s Law Department announced that the Bloomberg administration would double down on what has long been a “double game” of actively waging a campaign against Judge Scheindlin’s character and integrity outside the courtroom while simultaneously declining to formally seek her recusal or disqualification in the litigation itself:
In light of the Circuit Court’s determination that the actions of Judge Scheindlin “ran afoul of the Code of Conduct for United States Judges” and compromised “the appearance of impartiality,” the City will file a motion in that Court by early next week asking it to immediately vacate Judge Scheindlin's rulings.
Late last night, outgoing Corporation Counsel Michael A. Cardozo filed that motion under his own signature. Cardozo’s motion is a truly brazen document, aggressively bringing the Bloomberg administration’s ongoing public campaign to malign Judge Scheindlin into the courtroom itself. The motion takes the thinly supported statement by Judges Cabranes, Walker, and Parker in their now widely criticized order that “the appearance of [im]partiality surrounding the litigation has been compromised” and then stretches and recharacterizes that statement as supposedly having gone much further to have “revealed” the actual partiality and impropriety of Judge Scheindlin in all of the litigation’s proceedings—something that Judges Cabranes, Walker, and Parker most certainly did not themselves find or really even suggest. On that basis, Cardozo’s motion then simply repackages all of the Bloomberg administration’s longstanding substantive grievances as issues that supposedly involve judicial ethics, wildly asserting that all findings and conclusions by the District Court with which the Bloomberg administration disagrees on the merits—including its disagreements about the District Court’s technical application of the Southern District’s related cases rule, which is the kind of local procedural rule whose application appellate courts ordinarily evaluate with great deference—now magically constitute evidence of actual bias, total and overt hostility, bad faith, and judicial misconduct. Without any trace of irony, Cardozo’s motion expressly includes in its lengthy catalog of these supposedly “tainted” aspects of the litigation the District Court’s references to news articles that were not formally part of the record.
The contortions in which the Bloomberg administration’s lawyers have engaged in this litigation suggest that extreme yoga must be a prerequisite for employment in Cardozo’s office. At no point during the many years in which the stop and frisk cases have been pending before Judge Scheindlin have the City’s lawyers formally sought her recusal or disqualification or formally alleged any violations of the canons of judicial conduct. Indeed, the motion filed on behalf of Judge Scheindlin states that at one point, Cardozo himself “appeared personally in the District Judge’s chambers to apologize for the misleading assertion” by the NYPD and City Hall concerning her supposed bias “and to disclaim responsibility for it.” At the same time, Bloomberg administration officials have persisted in their efforts to delegitimize Judge Scheindlin and the stop and frisk litigation itself by throwing around unsubstantiated allegations of her supposed actual bias. And now, with Judges Cabranes, Walker, and Parker apparently having given the appearance (to the Bloomberg administration, at least) of judicial imprimatur to those unsubstantiated allegations—even though the panel itself has never endorsed those allegations directly or specifically—Cardozo has eagerly come flying into court to cash in on precisely that for which (at least on the account provided by counsel for Judge Scheindlin) he personally apologized and disclaimed responsibility in the judge’s chambers. As “double games” go, this one is pretty unsubtle—and more than a bit weird.
Moreover, Cardozo’s own conduct in this very litigation could reasonably be understood as being tainted by his own variant on “judge-shopping.” As Judge Cabranes recounted at great length during oral argument on the City’s stay motion, in the immediate aftermath of the District Court’s decisions in August the City’s lawyers pursued its appeal “at a snail’s pace”:
[JUDGE CABRANES:] I have the greatest respect for you and for your boss Mr. Cardozo and for the staff of the corporation counsel so I don't want you or anyone else to misunderstand my comments or questions as expressions of personal or institutional hostility. But I do think this has to be said for starters. A reasonable observer reviewing this record, the record of this appeal, could think that the City government has been speaking out of two sides of its mouth--its proverbial or metaphorical mouth. It's been castigating the District Court publicly and forcefully for its orders while actually pursuing this appeal at what I regard as a glacial pace, at a painfully slow pace.... [I]t seems to me that for whatever reason the City has been dragging its feet and dragging its feet quite deliberately. I am not saying that the New York City Police Department, your client, has been moving at a glacial pace. I am saying that the City's lawyers for whatever reason have been moving at a glacial pace. ...
[I]t seems to me safe to say that if you had acted with real urgency at certain points you could have been before this Court asking for a stay a long time ago....
Judge Cabranes contrasted the City’s “leisurely” approach to its appeal with the approach taken by the litigants in the campaign finance case heard and decided by the Second Circuit just two weeks earlier, New York Progress & Protection PAC v. Walsh, in which the parties “moved quickly ... by saying this is urgent, we need to be heard as soon as possible,” and were able to obtain expedited briefing, argument, and adjudication of their appeal within a week. Judge Cabranes then opined to the lawyer arguing for the City that he was “quite certain that your client [i.e., the NYPD] couldn’t possibly be happy with” the “painfully slow” pace at which the City’s lawyers were proceeding. Later, in an exchange with counsel for the Office of the Public Advocate—which is the current office of the new Mayor-Elect, Bill de Blasio, and which appeared as amicus curiae—Judge Cabranes intimated that the panel might “telescope the briefing schedule to make [the appeal] ripe for decision before January 1,” something that at that point none of the parties had ever sought.
The next day, the City’s lawyers abruptly reversed course to heed the suggestions implicit in the panel’s questions and comments. After months of acting in a manner that any reasonable observer would conclude had demonstrated, rather decisively, that the City could not show any irreparable harm in the absence of a stay—and after previously having its motion for an expedited appeal denied by the Second Circuit, in an order by Judge Richard Wesley—the City’s lawyers asked the panel to order a briefing schedule (which the panel declined to adopt) that would enable the cases to “be heard and decided by the end of the year.”
There really isn’t much of a mystery about what is going on here. With a panel of judges (1) appearing to criticize the City’s lawyers for prosecuting its appeal too slowly and for not adequately representing the NYPD’s interests as a client, (2) appearing at oral argument to be favorably inclined toward the Bloomberg administration’s substantive positions on the merits, at least as those positions were raised and presented in the context of whether a stay should issue, (3) summarily ousting a District Judge against whom the NYPD and City Hall had waged an aggressive public campaign for months, and then (4) announcing its plans to hold on to jurisdiction over the merits of the appeal, the Bloomberg administration is eagerly racing to have that panel act swiftly to vacate Judge Scheindlin’s decisions before January 1 by any means necessary—whether on the merits, as it proposed last week, or by further assaulting Judge Scheindlin’s character and integrity, as it proposes now—in order to eliminate the District Court’s decisions altogether before the Mayor-Elect takes office and eliminates the appeal. In essence, Cardozo’s motion invites the Second Circuit to take the outgoing, lame duck Mayor’s side in what is fundamentally a political dispute with the Mayor-Elect—a dispute that one reasonably would think was resolved, more appropriately and decisively, on Election Day, when the candidate who visibly and actively embraced Bloomberg’s position on the stop and frisk appeal was crushed by the widest margin in any mayoral election in the City’s history not involving an incumbent. Perhaps most shamefully, Cardozo’s motion proposes to do so at the expense of Judge Scheindlin’s reputation under circumstances in which she has had no meaningful opportunity to defend herself against a raft of serious but questionable allegations that have been casually leveled by the motions panel itself and the Bloomberg administration.
In a certain sense, therefore, the circumstances surrounding the Bloomberg administration’s aggressive, lame duck prosecution of this appeal increasingly seem reminiscent of President Clinton’s impeachment in 1998. In December of that year, Clinton was impeached by a lame duck Congress whose aggressive pursuit of impeachment had been repudiated in the previous month’s midterm election, making it highly uncertain whether the new Congress in fact would have voted to pursue Clinton’s removal from office. Somewhat against the grain of public discussion at the time, Professor Bruce Ackerman questioned not whether the claims against Clinton rose to the level of impeachable offenses, but rather the legitimacy of a lame duck House of Representatives taking that action at all. (The lame duck House of course proceeded to impeach Clinton in any event, and Clinton was subsequently acquitted in the Senate.) Ackerman advanced a somewhat technical constitutional argument that obviously is not directly relevant here. But the underlying dynamic surrounding the Bloomberg administration’s race to obtain a final decision from the Second Circuit before de Blasio takes office—in the face of a diametrically opposed position by the Mayor-Elect, after the Bloomberg administration’s position was decisively rejected at the ballot box—has a similar character. Still another motion filed in the Second Circuit this week—by police unions moving to intervene, in an effort to continue to prosecute the appeal even if Mayor-Elect de Blasio decides to withdraw it—may be seen in a similar light.
The questions that all of these motions now present for adjudication illustrate the potential harms arising from the appearance of impropriety and partiality that Judges Cabranes, Walker, and Parker may have created with their opaque and procedurally irregular rush to judgment based apparently on what they read in the newspapers. Of course, all three are distinguished, long serving, and highly respected judges, and one certainly must presume that they have acted with good faith, sincerity, and impartiality. But as Dean Erwin Chemerinsky wrote in the New York Law Journal last week, “[j]udges are human,” and the nature and circumstances of the panel’s order makes it appear that the panel got “caught up in the ... deep emotions” of this highly charged case and “rushed to quickly take sides.” If Judges Cabranes, Walker, and Parker now were to issue a longer opinion in support of their decision to oust Judge Scheindlin, observers invariably and reasonably would question whether, in light of the highly questionable nature and circumstances of their original order, the three judges simply were—at a minimum—rationalizing and justifying a preconceived result that they had already made clear that they wished to reach, rather than making a genuinely considered and reasoned determination after fully and impartially evaluating the merits of the arguments presented and the record before them. After all, while courts do occasionally delay the issuance of detailed reasons explaining their rulings when exigent circumstances demand that decisions be rendered immediately, they typically give at least some explanation or indication of why that kind of expedited decision is necessary. And in this case, not only did the panel not point to any exigent circumstances that demanded haste in ousting Judge Scheindlin, but it also seems highly unlikely that it could have done so, since—as the “glacial pace” of the City’s own prosecution of the appeal until after last week’s oral argument confirms—no legitimate circumstances genuinely demanding that immediate action really existed. Observers would undoubtedly pose similar questions, for similar reasons, if the panel were to heed the Bloomberg administration’s scorched earth tactics to eliminate Judge Scheindlin’s decisions before Mayor-Elect de Blasio takes office—especially given the extent to which the City’s shifts in the pace of its appeal appear to have been reshaped almost directly in response to suggestions implicit in the motions panel’s own detailed questions and comments challenging the litigation strategies that the City previously had chosen.
In this context, how the motions panel itself responds is not the only important question arising from the flood of motions coming before the Second Circuit in this appeal. A more interesting and consequential question may be whether, when, and how the Second Circuit’s active judges, sitting en banc, might or might not choose to intercede in what U.S. District Judge Richard Kopf has aptly termed an “utterly depressing cage match.” Laudably or notoriously, depending upon your perspective, the Second Circuit has not historically reviewed the decisions of its panels en banc at anywhere even remotely close to the rate at which other circuits do so. In this litigation, however, the unusual and highly charged drama wrought by the motions panel’s decision, along with the cascading effects of that decision on the litigation, seems to warrant the full court’s prompt attention more and more with every passing day.
One of the most disappointing outcomes at the polls on Tuesday was the defeat of a school financing bill in Colorado. That is not the kind of thing that makes pulses race, of course, but it was a significant moment in American politics. A well-funded effort (including money from the Gates Foundation, and others) put an initiative on the ballot that would have added $1 billion in annual funding for Colorado's public schools, focusing the additional funding on the poorest schools in the state, with funding coming from a tax increase that was explicitly progressive. The measure was defeated by a 2-to-1 margin.
In explaining the defeat, a former Democratic governor of the state argued, according to a news report, that the effort "ran aground against a public made newly cynical by the government shutdown and the botched start of the president’s health care effort." If that is right, then it is a perfect example of how the radical Republicans' strategy to, as I put it in a recent Dorf on Law post, "create moronic chaos" pays off. The shutdown has been widely described as a public-relations disaster for Republicans, especially the Tea Party, but they are already seeing the benefits of their nihilistic strategy. Similarly, complaining incessantly about the health care law's website is a distraction, at best, but it is a distraction that works politically.
The question that I ask in my new Verdict column, published yesterday, is why anyone who is not a true-believing Tea Partier is still a Republican. There is now a lot of talk about how the "establishment" is going to take back the party from the crazies (see, e.g., here and here), but the complaints from the supposedly non-crazy Republicans are mostly about specific seats that were lost by candidates who made extra-crazy comments about reproductive rights issues. The expressed concern is not that there is something wrong with the extreme policies that Republicans support in lockstep, but that people like Ken Cuccinelli and Todd Akin are public embarrassments (who, by the way, barely lost their respective races).
No one has asked, as far as I have been able to determine, why the Republicans are so committed to their hard-line social policies that they would oppose efforts like the one in Colorado in the first place. The proposal was hardly a piece of radical social engineering. The party that constantly talks about the importance of our children and grandchildren, and that pays lip service to equality of opportunity, is willing to defeat this measure, because it involves a tax increase?! This reminds us that Republicans still view Newt Gingrich as an "ideas guy," whose distortions about the use of Food Stamps have caused Republicans to vote as a bloc (no Tea Party vs. Establishment split here!) to cut Food Stamps in a way that hurts the most vulnerable people in the country -- including their children.
I understand a debate over the appropriate degree of funding for, say, employment training programs. I can imagine losing an election because a majority of the public decides that the tax system should be changed in various ways that I do not support. I would be disappointed, but I would understand that the parties will have different approaches, and the voters can choose between them.
What I do not understand, as I wrote in my Verdict column, is how anyone who claims not to be an extremist remains in the Republican Party today. If you want to take a conservative position on government spending, you can be a Democrat. If you are comfortable with passing limitations on reproductive rights, you will have plenty of company among Democrats. Staying in the Republican Party today, however, means that you are comfortable associating with a group of people who overwhelmingly opposed background checks on gun purchases (which were supported by 90% of the public). It means that you view continuing cuts to Head Start, school lunches, housing vouchers, and so on as acceptable (or even desirable). It means supporting efforts to prevent the IRS from trying to crack down on tax cheating -- and using the IRS non-scandal scandal as an excuse to make government run less effectively.
Different people have differing tolerance for holding their noses and working with people they dislike. I can certainly understand why the Republican Party did not simply cease to exist after Reagan won the nomination in 1980. (Remember that Reagan was so extreme at the time that the party establishment tried to draft Gerald Ford at the nominating convention.) The question that I have had for several years now, however, is simple: What could possibly be enough to drive someone out of that party, if they have not already been driven out?
There are, at least, three categories of people to whom that question is pertinent. First, there are the people in the Republican Party who currently hold public office. What are the supposed moderates in the party, like Senator Collins of Maine or Rep. King of New York, thinking? The most plausible explanation is that they are simply not moderate. By comparison to the crazies in their party, they come across as people with the ability to reason. Yet they say nothing about the bulk of their party's agenda, even though both of them could switch parties and easily win re-election and serve as Democrats -- if they actually disagree with the hard right agenda that both the Tea Party and the establishment wing of the Republican Party support.
The second category is people who are essentially the mirror image of me, that is, non-officeholders whose life revolves around policy and politics, but who obviously identify with the Republicans. I clearly have objections to the Democrats, on both substance and tactics, but it is certainly accurate to say that I am a Democrat and support that party's general approach. What is someone like me thinking, on the opposite side of the fence? Other than pure careerism (hoping to get a federal judgeship, or appointment to an executive office), why do any but a tiny core of extreme, true-believer conservative economists and law professors hang on? "Sure, there are some crazies, but that's true of the Democrats, too," is simply false. Maybe it is simply a matter of habit.
The third category, of course, is voters at large. I understand the notion of "low-information voters," but my God! How bad does it have to get before people understand that the Republican label is now being placed on an entirely different product? Maybe, as I suggested above, this group's inaction can also be explained by little more than habit, or inertia.
The idea that there are people who are still in the Republican Party who do not agree with what that party has become was once somewhat plausible. It no longer is. We do not want to believe that half of the country is really as nasty and mean-spirited as the House Republicans are, but alternative explanations are becoming more and more difficult to find.
The recent 50th Anniversary issue of The New York Review of Books contains three wonderful nuggets for lawyers, law professors and the simply law-curious: (1) A marvelous interview with Justice Stephen Breyer on his love of French author Marcel Proust, in which Breyer reveals himself to be not only un homme de lettres but a person of deep feeling rather than the technocrat one might assume he is from some of his work on the Court; (2) a clear-eyed essay by David Cole in which he discusses what an end to the "war on terror" would require and look like, during the course of which he analyzes President Obama's May speech at the National Defense University and the excellent new book, What Changed When Everything Changed: 9/11 and the Making of National Identity by my soon-to-be-colleague Joseph Margulies; and (3) a posthumous essay by Ronald Dworkin, taken from remarks that Dworkin delivered in Rome last year on the occasion of his well-deserved receipt of the Balzan Prize for his "fundamental contributions to Jurisprudence, characterized by outstanding originality and clarity of thought in a continuing and fruitful interaction with ethical and political theories and with legal practices." With apologies to readers who don't subscribe to the NY Rev of Books and thus can't peer over the paywall, here I want to make a few points about Dworkin's essay and then connect it to one of the main arguments in Margulies' book.
Dworkin's essay is a summary of how his career led him from focusing on relatively concrete legal questions to quite abstract philosophical ones, a process he has elsewhere called "justificatory ascent." In a nutshell, it goes like this: Dworkin wanted to know the meaning of open-ended language in the Constitution (like "cruel" punishments and "equal protection"); he was unsatisfied with the answers given by legal positivists--either these terms are indeterminate so they simply provide interpreters with discretion or they can be made determinate only by reference to the concrete intentions and expectations of those who drafted them--so he concluded that the seemingly moral language of the Constitution was best understood as invoking true moral principles; but this led him to confront the argument of moral skeptics and expressivists that there is no such thing as a true moral principle, and so he became interested in and ultimately endorsed moral realism, the notion that moral statements do indeed have truth value; in the course of that journey he needed to think more broadly about the nature of truth, which led him to reject "scientism," the view that all propositions are true only insofar as they meet the test of truth as measured by the standards of science, in favor of a view attributable to philosopher Charles Sanders Peirce, which posits broader criteria for truth that cash out differently in different domains, including domains of value such as morality; secure in the belief that there are standards of truth in morality and thus law, Dworkin set out to apply them, which led him to ask what constitutes an individual life well lived, which in turn led him to confront the argument that the existence of physical laws makes free will, and thus ethical choice, impossible, an argument that he rejected as based on a misunderstanding of the consequences of a deterministic universe (if that is in fact the sort of universe we inhabit); he tied all of the domains of non-scientific value together under a single rubric, thus adopting the perspective of a "hedgehog" (in Isaiah Berlin's terminology).
Needless to say, this is all fascinating, and the posthumous essay merely summarizes the journey Dworkin charted over the course of his remarkable career. (For an affectionate and generally laudatory account of Dworkin's journey by a longtime Dworkin colleague, read Tom Nagel's still-more-recent essay in the latest NY Rev of Books, which is also, alas, mostly behind a paywall.) Nonetheless--and notwithstanding my enormous respect and admiration for Dworkin's work--putting it all out there in the single foregoing paragraph leads me to think that somewhere along the line Dworkin's jurisprudential journey took a wrong turn. To be sure, I agree with a great deal of what Dworkin says about particular subjects. I especially like his reliance on Peirce's pragmatism to ground moral realism, as against a relatively common view that begins with pragmatist principles and ends in moral skepticism or moral relativism. But at the end of the day I can't help but think that Dworkin's intellectual life journey was backwards or at best an engaging detour.
In the mid to late 1990s, Cass Sunstein wrote a series of articles describing the virtues of minimalism, including one on "incompletely theorized agreements." The core of the idea is that sometimes people can agree on a particular--e.g., Sheila is the best person for the job or the death penalty is too severe a penalty for the defendant--without agreeing on the ultimate reasons for that particular decision--in these examples, exactly what qualities make for the ideal job candidate or a theory of punishment.
Some critics of minimalism rightly noted that "thin" agreement has its limitations and Dworkin in particular argued for thicker, deeper justifications for legal interpretations in particular. But these criticisms often missed Sunstein's core point, which was not that thin justifications are superior to thick justifications but that agreement on a thick justification is often impossible--especially given what Jeremy Waldron (in a play on a term coined by Rawls) calls the "circumstances of politics," i.e., the inevitable fact of disagreement about fundamental moral propositions. If we are no more likely to come to agreement about meta-ethics, the nature of truth or free will than we are to come to agreement about such concrete questions as whether laws banning same-sex marriage deny the equal protection of the laws, then there is little point in arguing that disagreements about the more fundamental questions ultimately underlie our disagreements about the concrete ones.
For Dworkin, of course, whether society or legislators or judges come to agreement is largely beside the point because his model of legal interpretation and moral reasoning is highly de-institutionalized. His idealized judge Hercules decides cases on his own according to his own understanding of how to make the law the best it can be. Hercules does not need to persuade other judges, much less ordinary citizens, of the correctness of his views, because right answers are right answers regardless of how many people believe in them.
Perhaps in theory that's right, but it seems to me largely beside the point. Over a decade and a half ago, I wrote a review of one of Dworkin's books in which I criticized the idealized nature of Dworkin's enterprise in this way: Dworkin's writing addresses a metaphysical question--are there right answers in law and morality?--but our problem is a practical one. Given the circumstances of politics, what institutions should decide what questions (including morally laden legal questions) according to what procedures and substantive criteria? Dworkin's work says very little about that sort of quintessentially lawyerly question.
Cole's review of the Margulies book provides a useful contrast. Margulies argues that the American "creed"--the commitment to such gauzy ideals as liberty, equality and justice--is sufficiently malleable that it can be and has been used as a justification for repression, rather than simply serving as an engine for liberation and an ever-widening circle of justice. He discusses recent experience during the war on terror as well as older episodes in American history.
One can imagine a Dworkinian responding that the best understanding of liberty, equality and justice does not permit these concepts to be invoked in support of nativism, censorship and the curtailment of civil liberties, but that is not in fact how Cole responds to Margulies. Instead, Cole says (although the nature of a brief review does not allow him to give a full argument for the proposition) that the historical record supports a more optimistic reading--that in fact creedal language more often does produce progress towards what Dworkin and most contemporary liberals (including Cole, Margulies, Dworkin and yours truly) would regard as the "true" meaning of the American ideals.
But Cole rightly understands himself to be making a contingent historical claim, not a claim about meaning, because Margulies is also not making a claim about meaning. Margulies claims that Americans have, in different times and different eras, both sincerely subscribed to the same creedal language that we now embrace, while also engaging in practices that we now regard as fundamentally inconsistent with the creed. If he is right, then the creed is indeterminate in the sense that really matters--in its capacity actually to constrain the behavior of those who sincerely pledge allegiance to it. Here, as elsewhere, the problem is practical, not metaphysical.
Nagel surmises that Dworkin's moral realism inspired his rejection of positivism, and I suppose Nagel's right that there's at least a temperamental association between moral realism and Dworkin's jurisprudential views, but it's worth emphasizing that there is no contradiction between positivism and moral realism. (Nagel does not say otherwise.) One need not believe in anything like a complete separation of law and morality to worry that Dworkin's account of legal reasoning pays insufficient attention to the practical fact that judges, lawyers and citizens sometimes disagree about the content of morality. One still might think that in particular circumstances the law empowers judges to look to morality to fill in gaps in the law, but the positivist way of speaking about such circumstances--as exercises of judicial discretion--has always struck me as more appropriately modest than Dworkin's way of speaking about them. The broader point on which I wish to conclude, however, is more basic: Dworkin's long detour into metaethics and thence to metaphysics and beyond strikes me as quixotic, because positivism--the view he sought to undermine--never depended on any particular metaethical claims, either for or against moral realism.
Last week—a day late for “Mischief Night,” but right in time for Halloween—a motions panel of the U.S. Court of Appeals for the Second Circuit, consisting of three long serving and distinguished Circuit Judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., issued what must surely rank among the most bizarre stay orders that court has ever issued. The stay was (rather belatedly) sought by the City of New York in an appeal from an August decision by U.S. District Judge Shira A. Scheindlin—herself a long serving, distinguished, and highly respected judge in the Southern District of New York—holding that the New York Police Department’s “stop and frisk” practices involve impermissible racial profiling in violation of the Constitution. Only days before the City’s stay motion was filed in late September, the Second Circuit, in an order signed by Judge Richard Wesley, had denied the City’s previous (and also belated) motion for an expedited appeal and briefing schedule, which somewhat undermined the City’s claims to urgency and irreparable harm in its stay motion.
However, last Tuesday, Judges Cabranes, Walker, and Parker heard oral argument on the City’s motion, and two days later, the three judges not only granted the City’s motion to stay Judge Scheindlin’s order pending appeal, but also, somewhat remarkably, summarily dismissed Judge Scheindlin from hearing the stop and frisk cases altogether—which no party to the litigation sought or briefed. Even more remarkably, the panel did so with immediate effect, rather than ordering briefing and further consideration of its concerns or waiting until adjudication of the merits of the appeal and remand to the District Court. The panel’s order did not even mention, much less discuss, any of the substantive criteria governing whether a stay should be issued—likelihood of success on the merits, irreparable harm to the applicant, injury to other parties, and furtherance of the public interest. Instead, the entirety of the judges’ two page order was devoted to slamming Judge Scheindlin’s integrity, charging in rather cursory fashion that she had “compromised” the “appearance of partiality surrounding this litigation.” (Presumably, the panel meant to accuse her of having “compromised” the appearance of impartiality, not “partiality,” when it dashed off its brief order.)
In support of that charge, the panel cited two data points. First, the panel noted Judge Scheindlin’s supposedly “improper application” of the Southern District’s Local Rule 13(a), which permits district judges, in their discretion, to preside over civil cases that are related to each other if it would result in “substantial saving of judicial resources,” advance the “just, efficient, and economical conduct” of the litigation, or serve the “convenience of the parties or witnesses.” Second, the panel referred to a slew of news media articles—from the New York Times, New York Law Journal, Associated Press, and New Yorker—in which Judge Scheindlin “purport[ed] to respond publicly to criticism of the District Court.” On that basis, the panel concluded, Judge Scheindlin had not simply acted in a manner that warranted (without further explanation) a stay of her order pending appellate review, but had gone even further to “run afoul” of the Code of Conduct for U.S. Judges.
Well, “trick or treat” to you, too, Judges Cabranes, Walker, and Parker—shouldn’t your order have directed members of the public to egg Judge Scheindlin’s house and toilet paper her yard, for good measure? As Anna Merlan writes in the Village Voice, “That whooshing sound you just heard are eyebrows shooting to hairlines on reporters’ heads all over the city.” And not just reporters’ heads. The motions panel’s strange order has left lawyers, law professors, and even current and former judges themselves deeply “puzzled.”
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A federal court of appeals certainly has authority to direct a district court, upon remand of a case, to reassign that case to a different district judge under appropriate circumstances. But under the Second Circuit’s own precedent, directing reassignment of a case upon remand to the district court is “an extraordinary remedy ... [to] be reserved for the extraordinary case.” After all, as Justice Scalia has observed, “opinions held by judges as a result of what they learned in earlier proceedings” do not automatically amount to “bias” or “prejudice,” and it therefore “has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant.”
Was the Second Circuit presented with such “unusual circumstances” in this case as to require Judge Scheindlin’s ouster? The evidence suggesting that seems rather scant. Judge Scheindlin’s application of the “related case” rule itself seems rather mundane. The current stop and frisk case alleges a violation of her order in a prior case over which she presided, which would seem to squarely make the two cases related. But even if she had incorrectly applied Local Rule 13(a), that obviously does not by itself amount to a violation of the canons of judicial conduct. As for her public statements, while individuals certainly might disagree as to whether they were well-advised on her part, none of them concerned the stop and frisk cases themselves, and none of them seem any more or less remarkable than the kinds of interviews that Supreme Court justices and other federal judges routinely give these days. Undoubtedly some of Judge Scheindlin’s comments might have touched raw nerves or raised hackles among some federal judges. It’s quite likely, for example, that some federal judges do not appreciate hearing her suggestion that there might be members of the federal judiciary who are “overly cautious” because they are “fearful” or “want a promotion,” or that “[t]oo many judges, especially because so many of our judges come out of [the U.S. Attorney’s] office, become government judges.” Those are certainly strong and potentially unsettling assertions. At the same time, the basic message she conveyed about her own approach to judging was unremarkable: judges should be evenhanded and impartial—treating the government, for example, as any other litigant rather than affording it deference. In any event, as Professor Deborah Rhode writes in the New York Times, judges are protected by the First Amendment, and the credibility of the judiciary “is enhanced, not diminished, by opportunities for public education” and deliberation about how courts function, even if those discussions might be uncomfortable.
On the other hand, as former U.S. District Judge Nancy Gertner has suggested, what does seem to present “unusual circumstances” in this case is the odd and irregular manner in which Judges Cabranes, Walker, and Parker themselves have rushed to dismiss Judge Scheindlin from these cases so aggressively and swiftly. While the motions panel purports to base its decision upon a review of the “record,” none of the information upon which it relies actually appears in the judicial record. Moreover, the panel also offers no explanation for its decision to launch an immediate strike to oust Judge Scheindlin from the case, as if there were a grave and imminent threat to the integrity of the judicial process simply by having her name associated with it, rather than awaiting full adjudication of the merits to fully ascertain what the precise circumstances of their remand ultimately would entail. As U.S. District Judge Richard Kopf has noted, “[i]f the appellate judges were worried about the judge’s impartiality, they could have called for a full exploration of that matter at a later date.”
The panel’s haste is particularly odd given its decision to grant to the City’s stay motion. After all, as Professor Judith Resnik observes, because the panel’s decision to grant the stay “left the district court with nothing to do” while the appeal is pending, there was no urgency for the panel to determine right away who would preside over the case upon remand. While the panel partially remanded the cases after issuing its order for the sole purpose of directing the District Court to oust and replace Judge Scheindlin with another judge, as long as the stay is in place, nothing else will happen with these cases in the District Court until the appeal has been adjudicated on the merits. In a similarly gratuitous manner, the panel’s order purports to stay not only the remedial process ordered by Judge Scheindlin, which requires the NYPD to cooperate with an independent, court-appointed monitor to develop reforms to its practices, but also her separate order detailing her findings of liability—which, by its terms, does not require the City to do anything, and as to which the panel’s stay order is therefore entirely symbolic. The panel’s only apparent purpose of “staying” those findings of liability, therefore, seems the expressive purpose of piling on.
By acting so precipitously, the panel denied Judge Scheindlin any opportunity to respond to its allegations of judicial misconduct—allegations that are inherently serious, by their nature—before it published and gave judicial imprimatur to its rather casual conclusion that she had “run afoul” of the canons of judicial conduct. Especially since no party had sought her recusal or disqualification, her own interests have gone entirely unrepresented before the Second Circuit. The picture stands in sharp contrast to circumstances in which a party seeks a writ of mandamus against a district judge, in which the appellate court presumably would have appointed counsel to represent the judge’s interests in a more complete proceeding—for example, as the Second Circuit recently has done in a challenge to Judge Jed Rakoff’s decision not to approve a settlement between the SEC and Citigroup. In the absence of a similar opportunity to be formally heard, Judge Scheindlin has been left to issue a short public response to Judges Cabranes, Walker, and Parker—a response that calls their characterizations of her actions into some doubt. Certainly, it would have been much better to have permitted the development of those competing claims more deliberately in an actual proceeding.
The entirely predictable result of the panel’s casual, thinly supported conclusion that Judge Scheindlin has violated the canons of judicial conduct in such a publicly charged case—without affording her any opportunity to respond to and contest that assertion—has been to drag her character and reputation through the mud. The aftermath of the order has unleashed considerable vitriol against Judge Schedinlin by politicians and other detractors, the indignity of fending off tabloid stalkarazzi, and somewhat wild speculation about whether she might face professional sanctions. In short, in the words of Judge Kopf, the order by Judges Cabranes, Walker, and Parker seems very much “a cheap shot.”
For months, New York Mayor Michael Bloomberg, NYPD Commissioner Raymond Kelly, and other City officials have actively campaigned to delegitimize both Judge Scheindlin and the stop-and-frisk litigation itself, casually leveling attacks upon her integrity and even ordering the preparation of a dossier criticizing her as biased against law enforcement and circulating it to journalists while the stop and frisk trial was still underway. But at no point, in either the District Court or the Second Circuit, has the City directly sought Judge Scheindlin’s recusal or disqualification or claimed that she has violated the canons of judicial conduct. How and why these allegations concerning Judge Scheindlin’s character and integrity—what counsel for the plaintiffs has termed a “whisper campaign” against Judge Scheindlin—infected the motions panel’s formal consideration of the City’s stay motion, and how and why they constitute an appropriate basis for her immediate ouster, without briefing and argument by the parties or an opportunity for Judge Scheindlin herself to respond, would seem to demand a relatively full explanation and justification by Judges Cabranes, Walker, and Parker. Good luck, however, trying to find that in their two page directive.
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Both Judge Gertner and Judge Kopf have suggested that the bizarre nature and circumstances of the motions panel’s order raise questions about whether it is Judges Cabranes, Walker, and Parker, rather than Judge Scheindlin, who have “breached the rules” of judicial conduct. In a manner rich with irony, coming from a panel that had just faulted Judge Scheindlin for her application of the Southern District’s related cases rule, the three judges announced that, “[i]n the interest of judicial economy,” the motions panel would retain jurisdiction to hear the merits of the appeal “in due course,” rather than having that case randomly assigned to another panel. (“Evidently when it comes to related cases,” writes Professor David Cole, “what’s sauce for the district court is not sauce for the court of appeals.”) At the same time, the three judges went out of their way to assure that in acting immediately to take out Judge Scheindlin, they “intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.” Should that assurance be taken at face value? Like so much else in this appeal, the assertion is peculiar—not least because the criteria for granting or denying a stay actually required them to consider the likelihood that the City might prevail on the merits as one factor. Because the panel’s order does not furnish any explanation or reasons for why it concluded the City has satisfied those criteria, there is no basis to know the extent to which its conclusion rests on an assessment of the City’s position on the merits as opposed to the other traditional stay factors, but regardless it does make the panel’s assertion somewhat strange.
Moreover, even if the three judges have not exhibited any actual impropriety or partiality (which one of course must presume), on the very logic by which they have taken out Judge Scheindlin, the irregular nature and circumstances surrounding their order might raise questions about the appearance of propriety and impartiality of their own adjudication. As Judge Kopf writes:
What then is going on? The Second Circuit judges are excellent judges and I am sure they are sincere in their concern. But the reason they have given for their unprecedented action is laughable. Something else must be going on. We are all left to speculate what the real reason might be. What is worse, we are confronted with the unhappy result that the appellate judges themselves are now open to the assertion (wholly rejected by me) that it is they who have a political or policy agenda. . . .
At the very least, following a more regular process would have shielded the appellate judges from the assertion that they were acting as political hacks rather than impartial appellate judges unconcerned with whose ox was being gored. Frankly, this whole debacle is just mystifying to me.
The likelihood that such questions might be raised has always been especially high in these particular cases given their politically charged nature. Politicians and commentators who disagreed with Judge Scheindlin’s decision have rushed to characterize the panel’s decision as significant primarily for its supposed political salience in the final days of the mayoral election. In welcoming the decision as giving a boost to his own campaign, for example, mayoral candidate Joe Lhota—who has long criticized Judge Scheindlin and accused her of harboring anti-NYPD bias—quickly asserted that the “[t]he entire core of [rival and front runner Bill de Blasio’s] campaign just fell apart” as a result of the panel’s decision, in part because “[y]ou’ve got Bill de Blasio standing side by side with someone who has no judicial temperament.” Lhota supporter Rudolph Giuliani went even further, asserting that de Blasio should apologize to the NYPD in light of the “vindicat[ion]” by Judges Cabranes, Walker, and Parker of the NYPD’s stop and frisk practices.
Moreover, while it is exceedingly difficult to know for sure without seeing the full transcript, in the aftermath of last week’s oral argument on the stay motion, the City’s shifting positions concerning its desired brief schedule might be interpreted by some as raising an appearance of having been shaped or influenced by the comments of judges at oral argument. In its previous motion to expedite the appeal, which the Second Circuit denied, the City sought a briefing schedule in which the appeal would not be fully briefed until the end of January 2014. However, after the oral argument—during which the judges (at least based on public reports) criticized the City’s attorneys for pursuing the appeal “at a snail’s pace” and not “act[ing] with real urgency,” and intimated that they might choose on their own to adjudicate the appeal more quickly than the parties themselves had contemplated—counsel for the City rather suddenly expressed a newfound desire for a briefing schedule in which briefing would be complete by December 12, 2013, which, the City argued, would permit the appeal “to be heard and decided by the end of the year.” Which, of course, would also conveniently permit the case to be fully decided before the next mayor is sworn into office—and thereby would preclude him from withdrawing the appeal and accepting Judge Scheindlin’s order if he wished to do so, as de Blasio, the mayoral front runner, has indicated he would.
Regardless of the judges’ actual intentions—which of course we can and must presume to involve good faith, sincerity, fairness, and impartiality—do these shifting litigation positions, taken together with the panel’s comments at oral argument, suggest an appearance of having been influenced by the motions panel’s own possible preference to decide this case on the merits swiftly, before the next mayor is sworn into office and has the opportunity to withdraw the appeal? By the logic of the panel’s own interpretation and criticism of Judge Scheindlin’s actions, perhaps some observers might reasonably conclude that they do. At the very least, as Judge Kopf notes, the judges’ failure to “follow a more regular process” has left people to wonder, as he puts it, whether “it is they,” rather than Judge Scheindlin, “who have a political or policy agenda.” Police columnist Len Levitt suggests an even simpler motivation: “No matter how you slice, splice or dice it, those three big boys on the bench made it personal. They don't like the lady.” My point is not to endorse any of these views. It seems all but certain, however, that greater procedural regularity and more fully developed reason-giving by the panel would have reduced the space for these questions about the appearance of impropriety and partiality.
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So what happens next? According to former New York Supreme Court Judge Emily Jane Goodman, counsel for the plaintiffs have indicated that they intended to seek en banc review of the panel decision and may seek recusal of Judges Cabranes, Walker, and Parker. And as many observers have noted, the ultimate fate of the NYPD’s stop and frisk practices themselves will likely depend more on the decisions taken by the next mayor than on what happens in the Second Circuit.
But more hangs in the balance here than the fate of stop and frisk itself. The actions of the Bloomberg administration in this litigation have marked out a template by which powerful and well-resourced litigants might actively seek to intimidate or delegitimize a judge while litigation is underway in hopes of triggering their acquiescence or ouster —whether by directly intimidating them or by indirectly inducing others, including appellate judges, to heed casual allegations of judicial bias and partiality, but without putting themselves on the line to make those allegations directly. As Judge Scheindlin herself stated in one of the interviews for which Judges Cabranes, Walker, and Parker have evidently faulted her, “Judges can't really easily defend themselves. ... To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me.”
Her worry hardly seems misplaced. But with all the well-deserved attention on the implications of the panel’s decision for the future of stop and frisk practices themselves, this basic issue of judicial independence for trial court judges has been relegated somewhat to the background. The issues arising from this appeal involve more than Judge Scheindlin herself, and involve more than stop and frisk. Those who care about judicial independence and the integrity of the judicial process might wish to give more attention to the risks of allowing the kind of strategy pursued by the Bloomberg administration to prevail without raising questions about its propriety, and of permitting the appellate panel in this case implicitly, even if unintentionally, to legitimize that strategy by so casually and nonchalantly throwing Judge Scheindlin and her reputation under the bus.