Essentially Contested America

The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice.  The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of how nominees approach the Constitution and whether the nominees are committed to grand constitutional theories, specific conceptions of constitutional interpretive methodology, or the nature of the role of the courts in American constitutional jurisprudence. For example, each of the last three nominees indicated that they were committed to the “rule of law” without specifying in any detail what that means.  Then Judge Roberts committed himself to the Supreme Court version of umpire Bill Klem by insisting the Chief Justice’s job was to call ball and strikes according to the rules of baseball, not altering those rules in any manner at all. Judge Sotomayor reassured us that she is committed to “fidelity to law” without explaining what that means either generally or in specific cases.  And the senators, oh the senators! They kept throwing around such locutions as “judicial activism,” “interpreting (or applying) law, not making it,” “legislating from the bench,” “the law’s plain meaning,” and other forms of discourse that set up a wall between the Constitution and the public understanding of the document’s complexity and nuances.  Of course, we understand the political reasons for doing this, especially after the disastrous Bork hearings when a genuine dialogue occurred, but that doesn’t excuse the perversion of a process that is essential for judicial accountability and the future of American constitutionalism.

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Supreme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Just before the United States invaded Iraq in 2003, I had an argument with a friend of mine who supported the invasion.  I told him that I did not think there was any reason for the United States to invade Iraq.  He asked me whether I thought that the President was lying about weapons of mass destruction, and was astounded by my answer.  My friend was astonished that I believed that  the President of the United States, leader of the free world, would lie to the American People about such an important issue.   Oh, what an innocent time that seems now!  Now, we know that not only was President Bush lying then, but that members of his administration continued to lie about the reasons we were in Iraq after it became clear that there were no weapons of mass destruction.  Most notably, Vice President Cheney spoke often about the supposed link between Sadam Hussein and the 9/11 attacks, even though no such link was ever established.

The release of the torture memos last week gives us an upsetting glimpse into the inner workings of the Bush administration during that time, and may provide evidence that the administration was involved in an even bigger lie.  Why would the US intelligence officials use torture on terrorist suspects when not only were those methods prohibited by US and international law, but those methods had never been proven to work better than other interrogation techniques?  We have now learned that the torture methods used by US intelligence officials were modelled on methods used by the North Koreans to illicit false confessions from captured members of the US military.  Why would our government want to illict false information?  Could it be that our government used torture to try to manufacture a link between Iraq and 9/11, betwee Al Qaeda and Sadam Hussein?  If so, then our government was using inhumane interrogation methods such as waterboarding, that we have prosecuted as war crimes in the past, not to protect us, but to keep us in the dark.  It’s a shocking proposition, to be sure, but given what we have learned, we need proof that it’s not true.  That’s why we need an investigation into the Bush administration’s torture policies – to make sure our leaders didn’t use torture to support their lies, and to keep from telling the Big Lie to us again in the future.

According to recent reports: “The CIA waterboarded two al-Qaida terror suspects a total of 266 times, according to a report that suggests the use of the torture technique was much more extensive than previously thought.  . . .  The documents showed waterboarding was used 183 times on Khalid Sheikh Mohammed, who admitted planning the 9/11 attacks, the New York Times reported today.  . . . The US Justice Department memos released last Thursday showed that waterboarding, which the US now admits is torture, was used 83 times on the alleged al-Qaida senior commander Abu Zubaydah, the paper said. A former CIA officer claimed in 2007 that Zubaydah was subjected to the simulated drowning technique for only 35 seconds.  . . .  The numbers were removed from most of the memos over the weekend. But bloggers, including Marcy Wheeler from empytwheel, discovered that the figure had not been blanked out from one of the memos.  . . .  Barack Obama has banned waterboarding and overturned a Bush administration policy that it did not amount to torture.  . . . The president did not intend to prosecute Bush administration officials who devised the policies that led to such interrogations, his chief of staff, Rahm Emanuel, said yesterday.  . . .  Asked on Sunday about the fate of those officials, Emanuel told ABC’s This Week programme that Obama believed they ’should not be prosecuted either and that’s not the place that we go’.” To read more click here.

Fortunately, the President has had second thoughts about categorically ruling out investigations of crimes committed during the Bush-Cheney administration. Perhaps, someone close to the President alerted him to the fact that the United States has a legal duty to prosecute war crimes committed by its “leaders.” A hearty thanks to the stalwart soul brave enough to convince the President that his rhetoric about “looking forward” is quite irrelevant when one has a legal duty to take action of a certain sort, that is, when taking such action isn’t discretionary. And thanks to the President for exhibiting the good sense and strength of character to reconsider is initial erroneous position.

The Food and Drug Administration has been taking it on the chin in the courts – and for good reason.  For years, it has been apparent that the FDA process for approving and evaluating drugs is flawed.  Far too many drugs have been approved only to be recalled due to deadly side effects that were uncovered only after the drug’s approval.  This problem has gotten so bad that recently, one of my doctors told me that he waits a year after a new drug is approved by the FDA before he prescribes it.  The doctor said that he waits a year in order to ensure that the drug is safe and find out more about the drug’s side effects.  Removal of approved drugs from the market is surely embarassing to FDA officials, but it is profoundly disturbing to those of us who are potential users of those drugs.   It is also evidence that things are not working right at the FDA.  Maybe the drug industry has too much power, and maybe the agency has become too politicized.

In two recent high profile cases, courts have confirmed that the FDA’s decision making process is problematic.  In Wyeth v. Levine, the United States Supreme Court upheld a state court judgment against a leading drug company and in favor of a patient who lost her arm because her doctor used the risky “IV push” method to administer a drug to her.  Wyeth sold the medication with a label did not warn against using the IV push method.  The SCOTUS rejected the company’s argument that the claim was preempted by the FDA’s approval of its label.  Under the Bush administration, the FDA had changed its regulation to provide that “FDA approval preempts contrary or conflicting state law.”  However, the Court held that the new regulation had no authority because it was contrary to the legislative history of the Food and Drug Act, because the FDA had finalized the regulation without giving states or interested parties any opportunity to comment on the change, and because the FDA had failed to provide any reasoned explanation for overturning its long standing policy of non-preemption.  Why would the FDA unilaterally act to preempt state tort claims against drug companies?  It doesn’t take a rocket scientist to figure out that the Bush administration FDA wanted to protect drug companies from lawsuits regardless of the cost to public health.

This week, a New York federal district judge overturned an FDA regulation prohibiting girls under the age of 18 from purchasing the controversial “morning after” pill without a prescription.  The court held that the FDA’s rule was entirely unsupported by scientific evidence, and that there was strong evidence that the rule was based not on science, but on politics.  Why would the Bush administration FDA want to raise the age limit for girls to buy this form of contraception without a prescription?  The “morning after” pill is a hot button issue in the conservative “right to life” movement, a key constituency of President Bush.

We deserve a government that works, and a Food and Drug Administration that bases its policies on protecting our health, not protecting drug companies or religious principles.  Thank goodness our courts are doing what they can to make the FDA accountable for its shoddy performance.

For a nation to maintain its honor it must be true to its morality, its politics, and its history. Its morality requires taking responsibility for wrongdoing. Politics requires holding those culpable of wrongdoing accountable for their specific crimes. History requires preserving the record of the nation’s wrongdoing in order for future generations to avoid repeating them. Although the dark days of the Bush-Cheney regime are beyond us, its shadow persists. Indeed, it may not be possible to emerge from this shadow without responding as a nation to whatever crimes were committed on the Bush-Cheney watch. The Obama administration seems inclined to be “forward-looking,” which means unless irrefutable proof of illegality is established to focus on how the United States can return to its principles and values, for instance, by eliminating torture. Others want to subject the Bush-Cheney years to critical investigations and prosecute where warranted. The first approach virtually turns a blind eye to the atrocities of the past eight years. The second approach conceivably will consume the Obama administration with congressional and judicial inquiries deflecting the administration from attending to the other egregious problems–such as the Iraq War and an economy in free fall–bequeathed to the nation from arguably the most irresponsible and incompetent administration in the nation’s history.  Neither approach is very attractive.  Senator Leahy, (D-Vermont) has suggested a third possibility. To preserve the historical record without requiring the current administration to engage in complex prosecutions, Leahy has suggested the formation of a “truth commission,” which would offer immunity to anyone who truthfully testifies to the facts of the debacle in Iraq. Anyone accepting immunity that lies would be subject to prosecution for perjury. Whatever the drawbacks of this proposal it satisfies the most important overriding value, namely, it preserves the historical record on possible war crimes committed by the Bush-Cheney administration.  Without such a record, America’s honor is severely compromised.

Wall Street has taken a beating in the press regarding the estimated $18.4 billion in bonuses firms paid out in 2008.  Just for the math challenged, $18.4 billion in bonuses amounts to $10 million bonuses for 1,840 people or $1 million bonuses for 18,400 people or $100,000 bonuses for 184,000 people.  Some argue that the beating is unjustified and reflects a lack of understanding about how Wall Street pays its workers.  One argument suggests that what is considered a bonus to the outside world is really just salary on Wall Street.  The amount of the extra “salary” is unknown until the end of the year, but it is clear to those on Wall Street that the additional salary will be substantial.  Another argument claims that bonuses are really retention payments necessary to keep firms from losing top talent to other firms.  There are problems with using either claim to support the argument that the bonuses paid were perfectly acceptable given the magnitude of losses Wall Street has racked up in the last few years.  The salary argument is backward looking and suggests that bonuses are for past performance.  Of course, it is somewhat unclear how past performance would justify bonuses given that some many of the firms paying bonuses lost billions of dollars last year.  Certainly one could argue that specific individuals still deserve bonuses based on their performance.  However, the sheer magnitude of the bonuses paid makes the argument dubious until more information – that is almost certainly not forthcoming – is released.  The retention argument is forward looking and suggests that bonuses constitute partial payment for future services to be rendered.  Of course, it is unclear what firms will be hustling to poach top talent given the number of layoffs at all levels that Wall Street firms have endured.  Certainly, it is possible that the retention argument is a little more subtle and that the payments are also meant to keep the top talent from deciding to go home and sit on the couch.  However, if that is the argument, it is unclear why the top talent’s base salary is not substantially higher that it is now, possibly in the range of what the top talent would be expected to earn in an average year.  This would create a different public relations problem, one that would require that firms justify to shareholders and others why traders, some of whom have no idea what they are selling or how much money they are making or losing for the firm, ought to be guaranteed a high-six-figure or seven-figure salary.

I suspect that what has happened on Wall Street is that an ethos has run into an irony.  The ethos is that high salaries are anathema on Wall Street because they make people soft and complacent.  Real money is made on Wall Street by hustling and nobody hustles when they do not have to to “make” money.  In theory, bonuses reflect how much you hustled and how much you made.  The irony is that now everybody expects to get paid whether their hustling made money or not.  The mere act of hustling plus the existence of money in the firm’s bank account is supposed to lead to the same bonuses as in prior years.  The problem is that when the money in the firm’s bank account comes from the taxpayers getting hustled in the form of TARP funds, the public is in no mood to see bonuses get paid to folks whose “low” base salaries still dwarf the average salary of those in the middle class on Main Street.

Is it morally conceivable that the Obama administration will fail to pursue some institutional mechanism for determining whether George W. Bush is responsible for war crimes? The moral core of American values requires a reckoning. Even if the former president is never tried, the United States must take it upon itself in whatever venue possible to set the historical record straight on whether torture was authorized at the highest levels of American government.  The understandable instinct to move forward especially in light of the intractable problems facing the new president must be resisted for the sake of the nation’s honor.  We can more forward only after we take account of our past misdeeds, and we should never forget that George W. Bush’s misconduct is our misconduct. The precise character of the reckoning is far less important that thee fact of a reckoning. Call the endeavor “truth and reconciliation concerning possible war crimes committed during W.’s presidency.” Rule out criminal sanctions in advance. But something needs to be done for the moral character of the nation.  For an informative article on this matter click here.

John McCain continues to discuss earmarks as though they are the second greatest threat to America, after radical Islam, of course. He suggests that earmarking – the practice of a congressman or senator directing how specific funds in an appropriations bill will be spent – are the budget-busting bane of America’s existence. However, given how earmarks work, McCain’s approach to earmarks will merely result in block grants to governors like his running mate Sarah Palin or merely guarantee complete executive branch control over government spending. What it does not do is require fidelity to budget cutting or budget balancing.

The flap over the so-called Bridge To Nowhere is instructive. Through an earmark pushed by Senator Ted Stevens (R-AK) and Representative Don Young (R-AK), $___ million was appropriated for the Bridge to Nowhere – a bridge connecting the airport on Gravina Island serving Ketchikan, Alaska to the mainland. Eventually, after $40 million [of the appropriation] was spent to build an access road to the bridge site, the Alaska DOT realized that the appropriation would be insufficient to build the bridge. Alaska essentially received a block grant when Governor Palin cancelled the project, used much of the remainder of the money for various transportation projects around Alaska and put the rest away.

Under a McCain Administration, the Bridge appropriation would have been canceled and reallocated by DOT staff. Either Sen. Stevens and Rep. Young would have been able to convince the staff of the value of the project or not. However, the only distinction between this situation and the Bridge To Nowhere situation is who makes the decision – the executive branch (with input from Congressmen and lobbyists) or Congress (with input from state officials and lobbyists).

McCain may prefer that the executive branch rather than the legislative branch make the allocation decision. However, from a constitutional standpoint, there is nothing inherently wrong with Congress making the allocation decision.

This summer, I spent a lot of time engaged in one of my guilty pleasures, reading about King Henry VIII and his wives. It’s fun to read about the pageantry, and the drama and intrigue of the British court. In reading about how the monarchy used to function, I can’t help but be reminded about how great it is to live in a democracy and be protected against the arbitrariness of our leaders by our due process clause and other constitutional protections.

If the King got mad at you, he could put you in prison without leveling any charges against you, and you could rot away there for years, even die, without ever having a chance to defend yourself. Today we are protected from being imprisoned without being charged by the due process clause and the Great Writ of habeas corpus.[1]

In jolly old England, the King governed in secret, and no one but his closest advisors knew how he made his decisions or with whom he consulted while making them. In our democracy, government is transparent and leaders are held accountable for their actions.[2]

It used to be that if you made the King angry, he could fire you, and anyone else who refused to follow his orders. In today’s democracy, we require our leaders to articulate good reasons for their actions, and retaliating against our enemies is not a good enough reason.[3]

It used to be that in order to get a good position in the government, you had to make the King happy and tell him what he wanted to hear. Today, our Constitution requires our leaders not to discriminate on the basis of viewpoint.[4]

Back in the day, you didn’t have any right to criticize the King, and if you did, he would send out his soldiers to subdue you with force. Today, the First Amendment protects our right to dissent.[5]

Reading about King Henry VIII reminds me that the Constitution is not just a paper document that is interpreted by courts. It is the foundation of our government and our individual rights. We The People are protected by the Constitution, and it is our responsibility, not just the responsibility of the Courts, to insure that our leaders comply with it.

So, three cheers for Due Process and the Constitution. Thank goodness we live in a democracy, where our leaders are required to respect the Constitution. Let’s do what we can to make them fulfill this promise.

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[1] Unless you are in Guantanamo Bay Prison, of course .Counter Terror with Justice[2] Unless you are the vice president.Watchdog group sues Cheney over records

[3] Unless you are the governor of Alaska.
Another Controversy for Sarah Palin
Palin Focus of Probe In Police Chief’s Firing
Mayor Palin: A Rough Record

[4] Well, except when you want to be a US attorney. See

White House Backed U.S. Attorney Firings, Officials Say

[5] Unless you are protesting at the Republican National Convention.

Republican Convention protests turn violent as 250 arrested