Archive for the ‘Constitutionalism’ Category

Professor Robert Hayman’s Tribute to Bobby Lipkin

Written by webmaster on December 8th, 2010

5224617486_8be21a2736_m[Author: Robert Hayman] [see photos from event] This will be a short talk about one of Bobby’s “big ideas,” about pragmatism, which might be best described as revolutionary pragmatism.

Bobby’s interest in constitutional revolutions is well-documented, but the full corpus of his work documents a broader and deeper commitment to a revolutionary creed.  Each of his articles is in fact a mini-insurrection, a rebellion against one order or another.  As an author, Bobby is the James Dean of pragmatists; you got it, he rebels against it.  In his writings, no order is stable, no heuristic is safe, no paradigm is left unshifted.

Journey into one of his articles and see the world get re-made.   Old structures yield to new ones – of Bobby’s creation.  Old dichotomies yield to new ones – of Bobby’s creation.  Old terms yield to new ones – of Bobby’s creation.  So meet the new boss – he’s the not the same as the old boss, because the new boss is Bobby.   Bobby is, in his writing, the fabricator of new intellectual universes, the creator, and this is literally true, of new discourse.  The writing teems with, it overflows with, creativity.  But of course.  As Camus, the patron saint of pragmatists,  reminds us, what is creativity, after all, but rebellion.  James Dean got that too.

But Bobby’s rebellion is rebellion for a cause, and in that cause pragmatism is, fittingly, both means and ends.  Pragmatism is the vehicle for the perfection of American constitutional democracy; and pragmatism itself needs to be perfected, for its own sake – because it matters.

That’s another facet of Bobby’s work, the passion he shows for pragmatism. Read Bobby on pragmatism, and hear him revel in it, feel his joy in engaging it, it’s as if he cannot believe his impossibly good fortune in having discovered this remarkable philosophy that he can make his own.
And it suits him so well.  Inclusive enough, like Bobby, to embrace nearly every important jurisprudential movement of the past half century; rigorous enough, like Bobby, to be branded a philosophy, a brand it dismisses with studied disdain.  Committed, on the one hand, to critique and relentless skepticism; equally committed, on the other, to the power of prophecy, and to an enduring hope.   And it does matter; it is important.  The joy of Bobby’s work – and he is at times positively giddy – is matched by an earnestness; the stakes, he sees, are high.  Future generations will render their verdict but it should be no surprise if they determine that pragmatism’s influence on two generations of legal thinkers – in the academy, on the bench, in the White House – is rivaled in our history only by the New Deal era realists – the main difference being, of course, that we don’t have a New Deal.

At least, not yet.  Because the pragmatist’s story – Bobby’s story – is still unfolding. Who knows what tomorrow will bring, who knows which of Bobby’s fabricated universes will become our own.  We have witnessed, with Bobby, a President Obama; who is to say that we won’t witness a President Lipkin – Sara, as she’s known to her friends.

So here’s a bit of Bobby the revolutionary pragmatist, doing what pragmatists do – arguing with other pragmatists – because that’s they way they become better, it’s the way they learn how to build their new, better, universes.

The subject of Bobby’s work here is: an argument between two other pragmatists.  One of them, Richard Rorty, had counseled against the use of “foundationalist” language to make normative appeals; we cannot pretend, he insisted, to be possessors of first order moral insights.  The other, Lynn Baker, had taken Rorty to task; stripped of its moral dimensions, pragmatism, she insisted, lost its ability to persuade, and was of scant value to progressive movements, or to the cause of oppressed peoples.  It is true, Rorty conceded, that the language of progressive prophecy is sometimes littered with moral absolutes; but the prophets who use that language, he maintained, are the wrong kind of prophets.  Enter Bobby, stage left.  In a Tulane Law Review Article he titles “Pragmatism–The Unfinished Revolution,” Bobby writes this:
* * *
Rorty’s conception of the language of prophecy does not correspond to the language of actual prophets.  In short, the kinds of prophets we admire use very different descriptions than the ones that seem to follow from Rorty’s conception of antifoundationalist, prophetic language.  If doctrinaire pragmatism cannot accommodate the actual language of prophecy, then arguably it cannot be used for reflective social change even in the way Rorty endorses.  Rorty’s conception of good prophecy distorts moral language and moral psychology, the same language and psychology that have permitted Western intellectuals to seek to eradicate suffering and render society free and just.  Unlike doctrinaire pragmatism, reflective pragmatism can support and extend the language of prophecy as the only nonviolent means of reform and revolution.
Based on everything we know, reflective pragmatism permits universal moral truths.  Its antifoundationalism remains intact.  These truths are historically derived and do not pretend to represent any reality save our historical heritage.  The reflective pragmatist does not believe for a minute that these truths are anything more than deep, contingent generalizations.
For the reflective pragmatist, permitting universal judgments saves us from the straightjacket of doctrinaire pragmatism.  The language of universality permits us to say more of what we want to say about good and evil, our understanding of the moral past, and our utopian aspirations for the future.  So, despite the contingent imperfection associated with universal moral judgments, adopting a judicious use of such judgments is better than abandoning them entirely.  Reflective pragmatism, unlike its doctrinaire counterpart, contends that more pragmatic benefits accrue by permitting some universal judgments than by proscribing their use entirely.
Reflective pragmatism promises to continue the pragmatic revolution, a revolution that should always remain unfinished.  The unfinished pragmatic revolution indicates that pragmatism is a process that can exploit any other type of discourse when that discourse has pragmatic benefits.  As long as we recognize this, a pragmatist can adopt foundationalist, realist, objectivist, or universalist discourses shorn of their epistemological and metaphysical commitments when the pragmatic price is right.  Reflective pragmatism frees the pragmatist from both foundationalism and doctrinaire pragmatism.  Reflective pragmatism, in short, renders the pragmatist free from foundationalism as well as free to adopt foundationalist discourse, thereby expanding the pragmatic conversation.  Given reflective pragmatism’s superiority over doctrinaire pragmatism, nothing should prevent us from viewing the transition to reflective pragmatism as pragmatism’s next revolutionary moment.

* * *
See what he did there.   “Doctrinaire pragmatism,” “reflective pragmatism” – a new dichotomy; his dichotomy; his terms; his creation.  The paradox of the doctrinaire pragmatist – his discovery, if you will, or maybe his invention.  And for the pragmatist committed to progressive change – a new priority, and new discursive possibilities.  A new revolutionary moment.  All that in four paragraphs.  And we’ve barely scratched the surface.

When he was told of this event, Jack Balkin, editor of the balkanization blog and a Con Law teacher at Yale, passed along an email that closed with this thought: “Bobby was a lovely man, and will be deeply missed.”  Of course there’s no disputing any of that; we know it.  And for all the times that we imagine otherwise, for all the times I’ve still seen Bobby in my office doorway, smiling, greeting me with a “hey kiddo,” for all that, still the sense of loss is truly palpable, and still it hurts.

But maybe today points a way toward lessening the hurt, toward a way maybe that we miss Bobby less deeply.  Because Bobby left us more than memories, he left us his words.  And so from time to time we can pull this book from the shelf, and learn again from Bobby, and share with him his passions, witness–maybe even join in –his revolution, travel with him in his marvelous new worlds.  We’ll be better for it – not least because, we’re always better, when we’re with a friend.

Professor Erin Daly’s Presentation in Honor of Robert J. Lipkin

Written by admin on December 3rd, 2010

ErinDalyAuthor: Erin Daly [see photos from event]

I want to thank everyone for coming here today.
I think that when we first heard that Bob had died, we were completely bereft. We were completely stunned. Bob had been around here for so long that none of us could imagine this law school without him. We had a memorial service of sorts for him shortly after he died largely to help us get through what we were going through. It was I guess in some ways a good event, but it was really a terribly sad event. It was one of the few times that so many students had seen so many faculty cry. Not just a bit teary-eyed, but really, really cry.

One of the things that Bob’s friends did at that time was create a book in which people wrote some thoughts and feelings about Bob and what he had meant to them. Andy Strauss helped to organize this, and Connie Sweeney helped put it together. I’d like to present it now to Carolyn and Bob’s family.

I think when something that’s so tragic, and so sad like this happens, you try to say “is there any way we can try to make this better?” – “is there any way we can try to get something good out of this tragedy?” Jim May, rather quickly, rather intuitively understood that one of the greatest things that Bob had given us was his scholarship. And one of the great things about working with Bob was not only that we could read his scholarship, like everyone else, but that through knowing him, through talking to him, through just being in the same room with him, we could gain some appreciation for how he thought about his scholarship.

So Jim had the idea to use the next issue of the Law Review to commemorate Bob’s contribution to legal scholarship by bringing together in one volume some of Bob’s most important work.

As Jim and Bob Hayman and I sat down earlier this year to try to determine which of Bob’s many many articles and writings should be included and to try to write a foreword that would some how capture what Bob was trying to do in his writing – I’ll first say that we all had a very very hard time doing this – what I found, what I was struck by as I sat down to read his writing in the context of trying to understand who he was and what he was trying to do, I was so struck by the interconnectedness between who Bob was as a person – as a professional, which is the only capacity in which I knew him – and what he was trying to do in his scholarship.

Bob wrote scores of articles. He was just constantly, constantly writing, constantly had ideas that he wanted to set down on paper. But he was also – I think if any of us close our eyes for a moment and think about him – we think of him talking. We think of him engaging in debate. And that was the phrase that came to me when I sat down to think of him as a scholar. That he was always engaging in debate – in every sense of the phrase: he was always debating, and always engaged – really focused on the issue of the moment. And – when he was debating, he was always incredibly engaging. Both in his speech and his writing.

For him, I think, writing was a very active endeavor. Just as talking to people was very active.

Bobby’s debating style was unique. It was intensely personal – his ideas were not just abstract or academic arguments; they were convictions that he was testing out to see if he could believe in them, if he could adopt them as his own. But his was also a thoroughly inter-personal endeavor. Bobby was never enthralled with the ideas per se, he didn’t throw out his ideas simply to hear his own voice, but to prod others to react, to think, to respond, and to enhance his own understanding. It is for that reason that he was such a great mentor to me and to many others.

He didn’t necessarily want you to agree with him, but he wanted you to appreciate the value of his ideas – the value of the debate. “If I have persuaded you of [the importance of my idea],” he says in one article in this issue, “I have achieved my goal.”

Because the point was never to get you to agree, to win over adherents to his side. The point was to get you to think about it, more seriously, more rigorously – about their values and in particular, about his own particular academic passion, to think more rigorously about American constitutionalism and what it means, and what it could mean if it were taken more seriously.

To Bob, who loved debate, conversation, that inter-personal connection that you get through conversation, to Bob, even the constitution itself was a conversation – an ongoing, inter-personal or inter-subjective conversation. And debate about the constitution is what would make it better; continuing to think and talk about the constitution is what would make this a more perfect union.
So he wasn’t timid about making proposals not because he was sure he was right but because he was sure that the questions were worth asking.
I was struck as I looked through his body of work at how often he used question marks. I think that those of us who sat in faculty meetings might be surprised at that. If we were to associate him with any particular punctuation mark – and I admit that it’s perhaps an odd thing to do – but in faculty meetings, Bob was all exclamation point! He was always very emphatic, wasn’t he, in faculty meetings? In his writing, however, he rarely used exclamation points; rather, his writing was replete with question marks.

Legal scholars are known for being very emphatic: this is the way it ought to be! The court is wrong for all these reasons! But Bob’s writing is very different. It’s all questions: what do you think? Do you think it should be this way?

I remember many years ago when he was organizing the symposium on progressive constitutionalism. I remember talking to him about the title. He chose as his title: “is progressive constitutionalism dead?”  And I remember saying to him, in my polyanna way, why don’t you be more positive about it? Why don’t you call it: “progressive constitutionalism is alive!” and he said no, I want it to be in the form of a question. So finally I got it, and I said, so you ask the question and then over the course of the two days, you’ll get to an answer? And he said, no, I just want to ask the question. That’s what was important to him. Not to come up with the answer, not even to get the incredibly august group he had assembled should to come up with an answer, but to encourage everyone to think about the question.  I guess in that sense, he was a true Socratic.
And this is why I’m so admiring of the courage, the boldness of Bob’s scholarship. He was not afraid to ask questions. He was not afraid to attempt to answer them wherever the answers might lead him. He was not afraid to recognize that he might not have all the answers and in fact, perhaps one of Bob’s major contributions to legal scholarship is the notion that there is a difference between a community that is dedicated – that thinks it has all the answers to begin with and a community that is deliberative, one that seeks to find answers, one that has not pre-commited to a certain way of life or a certain set of values. And that is a paradigm –  the idea that communities, or that individuals within communities might be dedicated or might be deliberative – that is a paradigm that I have found extraordinarily influential in so many different ways.

The student editors of the law review wrote a very nice note at the beginning of this issue and it begins with an epigraph from Henry Brooks Adams. “A teacher affects eternity – he can never tell where his influence stops.”

And I think that is so true of Bob. Bob, I think, had no idea how much he influenced us and how much he touched us, not only through his warmth and his grace and his great sense of humor – and not even just through the force of his ideas, but through his manner of engaging with other people. He encouraged us to reconsider the ideas and values to which we were dedicated, to question the basis of that dedication so that we could continue to ask questions and be open to answers, and engage with an open mind in ongoing debate.
He understood that we had not just an opportunity or possibility of debating, but indeed, an obligation to engage in discussion with one another. Because it is the process of discussion and debate that brings us into closer community with one another. And this is perhaps an even more important idea that permeates his writing. The idea that through interpersonal discussion, we give meaning not only to our constitutional democracy, but to our own immediate community.

And what I want to leave you with today is an invitation to read the words on these posters, taken from Bob’s last article, because to me, these are the real essence of Bob’s work – his tireless commitment to give meaning to the various communities of which he was a member and where he will always be sorely missed.

Professor Jim May’s Remarks; A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin

Written by webmaster on December 1st, 2010

JimMayAuthor: Professor Jim May [see photos from event] Bobby’s constitutional theories were cogent, unconventional and unsettling. Bobby was unafraid of toppling conventional wisdom and subverting dominant paradigms about constitutional evolution, interpretation, supremacy and review.  I’m here to discuss three ideas Bobby invoked in four articles collected in this special issue of the Widener Law Review.

  1. Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
  2. Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
  3. While Judicial Review Nourishes Democracies, Judicial Supremacy is Antithetical to them.

His legal scholarship displays a courageous Cervantesarian devotion to tilting at doctrinaire constitutional theory. To Bobby, there is no unified field theory of constitutional interpretation. There is no such thing as constitutional truth. Judicial Supremacy should be replaced by judicial review with congressional override. At bottom, Bobby imagined constitutionalism as a beautiful shape-shifting constitutional democratic consciousness, a communitarian way to nourish a democracy and empower its people, forming a more perfect Union along the way.

Constitutional Law Evolves Through a Process of Constitutional Revolutions
Bobby sought to explain how constitutional legal theory evolves, not which theory is best. This is best exemplified by the first piece in this collection, The Anatomy of Constitutional Revolutions, (Nebraska – his alma mater — 1989). He explained:

[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: the living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile.

To Bobby, none of these are correct and all are beside the point. To Bobby, constitutional legal theory evolves and adapts with what anthropologist and humanist Stephen Jay Gould might have called “punctuated equilibrium,” that is, long periods of stasis upset by abrupt, transformative change. Bobby called such changes in constitutional legal theory “constitutional revolutions” (as in “revolt,” not “revolve”), wherein legal change inconsonant with existing constitutional theory is impelled by compelling extrinsic factors, which explains results in “hard cases,” say Slaughterhouse, Plessy, Brown and Lawrence.

Bobby’s own theory about which constitutional theory is best is ultimately to reject the lot of them – which he said “obscures” real constitutional discussion, in favor of a nihilistic indeterminacy cabined by belief, bias, cognitive pragmatism and relativism, majoritarianism, chaos and cultural influences. Which brings me to his second theory about the role of truth in constitutional theory.
Results are Not Explained by Constitutional Truth, but instead by Constitutional Indeterminacy.
Bobby questioned the meaning of “truth” in constitutionalism. He was unwilling to accept the premise that there is or ought to be settled constitutional truths is well in view in the second piece of this collection, Indeterminacy, Justification and Truth in Constitutional Theory (Fordham, 1992). Bobby could be an epistemic fundamentalist, questioning the meaning of truth in and about constitutional interpretation: “Thus, the question of constitutional indeterminacy is ultimately a question of epistemic indeterminacy. Without knowing the univocal meaning of a constitutional proposition, even if such meaning exists, constitutional practitioners cannot be constrained or significantly guided by the law of the case.”

In Indeterminacy, Bobby argued that because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy, epistemic indeterminacy (sub nom. “indeterminacy”) is therefore more relevant to constitutional legal theory. He wrote:

Once we rid ourselves of the unfortunate dichotomy between metaphysical and epistemic indeterminacy, we realize that constitutional provisions have a univocal meaning if, and only if, qualified constitutional practitioners agree on what the provision means, and on the type of reasoning appropriate for resolving controversies pursuant to that meaning. This agreement explains why so-called “easy” cases are easy.

Bobbby rejected the notion that there exists “correct” constitutional theory, in favor of a sort of Zen temporal interpretivism that rejects the concept of constitutional “truth” altogether, concluding: “Constitutional theorists should jettison the notion of constitutional truth,” and

that constitutional theorists, judges, and practitioners should abandon truth in favor of justification. [T]ruth does not have the explanatory force it is typically thought to have. Consequently, whether constitutional statements are true is irrelevant to the process of constitutional litigation and adjudication.

Rather than “Truth,” indeterminacy is “an appropriate vehicle to transport constitutional theory into the twenty-first century,” and “ultimately captures the imagination of the age” and best equips society to address the greatest issues of the day, say slavery, abortion, gay marriage, consensual homosexual sex, executive authority, and national security.
To Bobby, the search for constitutional truth misses the point. The real adventure is in the journey of discovery not for the what, but for the who: who gets the final word on constitutional meaning? Congress? The President? The Supreme Court? States? To Bobby, the answer is “none of the above.”
Against Judicial Supremacy; In Favor of Judicial Review
Bobby concluded that while constitutional review is a healthy instrument in a republican democracy, constitutional supremacy escheats to The People. This is exemplified by the eighth and ninth articles in this collection, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, (Cardozo, 2006) and What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? (Widener, 2008)
To Bobby, a politically unaccountable Supreme Court should not have the last word – like Lewis Carroll’s Humpty Dumpty – on the meaning of the words and phrases contained in the U.S. Constitution. In a republican democracy – especially with constitutionally enshrined bicameral lawmaking topped by a democratically elected chief executive – constitutional interpretation should be wielded by those most accountable to the electorate. In Which Constitution, Bobby challenged the very notion of judicial supremacy in constitutional interpretation:

It is an indispensable feature of our constitutional system, according to conventional wisdom, that the federal judiciary is supreme in the exposition of the law of the Constitution. The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. [I reject] judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate’s incapacity to give their consent to justices and judicial decisions through input-accountability, process-accountability, and output accountability renders judicial supremacy anathema to self-government.

Bobby questioned judicial supremacy on constitutional textual and political accountability ground. He wrote:

it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society’s future.

Bobby also questioned judicial supremacy as applied in America as representative: “The Court, a mostly white, mostly male, and mostly middle-class body, seems conspicuously unrepresentative.”

Rather than courts, Bobby maintained that the electorate ought to be the ultimate arbiter of constitutional meaning. Bobby argued that Congress should have the role of “penultimate constitutional interpreter, one step short of the ultimate interpreter: the electorate.”

Bobby believed that “a congressional override of Supreme Court decisions as the solution to the problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it.”

Bobby held that congressional overrides are a constitutionally and historically entrenched American tradition that would serve as a democratic lever against the “the Court, thoroughly intoxicated with the power judicial supremacy grants them,” onerously running roughshod over a republican democracy.

Bobby made clear that his call against judicial supremacy was not a call to abandon judicial review. As he explained in What’s Wrong: “The value of judicial review lies in its utility in establishing a practice for reflection and deliberative conversation designed to translate the constitutional values of the past into the constitutional reality of the present.” In sum, Bobby believed that republican democracies thrive with judicial review, but not judicial supremacy. While judicial review is laudatory, he reasoned, dispositive constitutional disquisition should devolve not to those who cast judicial votes, but to those who cast elective ballots:

After deliberative debate, the final judgment concerning constitutional and political values should be the electorate’s. Any alternative system gives a government branch the power to check the other branches without an appropriate check on it. If there are to be unchecked checkers in American democracy, they should be—after extensive deliberative debate—the people themselves.

Now let’s hear from some other people, themselves.

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister’s Club.]

Bill Moyers’s Hosts Floyd Abrams and Trevor Potter on Corporate “Speech”

Written by Robert Justin Lipkin on September 8th, 2009

The question of the role of corporate funds (“speech”) in the marketplace of ideas is one that is vital to democracy. Again Bill Moyers provides a forum for an essential debate soon to be heard before the Court.

September 4, 2009

BILL MOYERS: Joining us now is Trevor Potter who had a hand in creating the McCain-Feingold campaign finance reform legislation. On its behalf, he has filed one of the more than 50 friend-of-the-court briefs submitted in this current Supreme Court case.

Trevor Potter heads the political activity law practice of the firm Caplin & Drysdale in Washington and served as general counsel to John McCain during the Senator’s 2000 and 2008 Presidential Campaigns. He’s former chairman of the federal election commission. And he’s the founding president of the campaign legal center. A nonpartisan group committed to quote: “Representing the public interest in the enforcement of campaign and media law.” Good to have you.

TREVOR POTTER: Thank you very much.

BILL MOYERS: What’s the public interest in this case?

TREVOR POTTER: The public interest in this case is enormous. It has grown significantly as the Supreme Court has changed the case. It started with a question of whether a particular film funded with for-profit corporate money could be advertised on television. It has morphed, or the Supreme Court has turned it, into a case about whether 100 years of American tradition of regulating the speech of for-profit corporations in election should be changed. Whether the Supreme Court should legislate that what the government has done for 100 years, starting with Theodore Roosevelt, what more than 22 states do, in terms of restricting corporate spending in elections should be overturned. That’s a big deal.

BILL MOYERS: I’ve read your brief. And you clearly think it’s dangerous– you didn’t use that word. But dangerous to allow corporations and unions to spend so much money in an election, and at certain times. I mean, but don’t they have important questions to address?

TREVOR POTTER: Well, let’s start with a couple things. First, everyone says corporations and unions and it sounds as if there’s some parody here. This is a case about corporate money. If this case is won by the corporation, we will be in the ironic situation where corporations will have no limits on what they can spend in elections and unions still will. So, it’s important to remember we’re talking about corporations.

BILL MOYERS: But aren’t those corporations, don’t they have important things to say, important issues?

TREVOR POTTER: They probably have a lot to say. The question is, first of all, who are they? Now, you and I have never seen a corporation walking down the street and we haven’t seen one in the voting booth. That’s because corporations are creatures of the state. That sounds like some piece of law school mumbo jumbo, but it’s not. Corporations exist, because government said, “We’re going to give you limited liability for commercial, for economic purposes. We’re going to take somebody who might have lost everything they invested and we’re going to say you can limit your liability by having a corporate form. You only lose what you invest.”

That was an economic revolution when it happened. But it was done for economic purposes. Corporations exist because somebody creates them, goes down, files the paper with the state. The state blesses them and gives them a special status. So, what I think is that corporations exist for economic purposes, commercial purposes. And that the notion that they have full First Amendment free speech rights, as well, doesn’t make any sense for this artificial creation that exists for economic, not political purposes.

BILL MOYERS: In the briefs she filed for the government, our Solicitor General, Elena Kagan, makes that same case. She says they’re artificial persons. They don’t die. They don’t get sick. They amass great wealth. And because the state created them, the state has the right to try to limit their activities in non-economic or political–

TREVOR POTTER: I think that’s true, but it goes beyond that. Corporations exist solely to make money. Amassing economic power. They want, if they could get it out of government, monopolies. They want the ability to defeat their competitors. And if they can use government to do that, they will. Individuals have a whole range of interests. Individuals go to church, they care about religious and social issues, they care about the future of the country. They’re voters.

So, they have a range of issues at stake that corporations don’t have. Corporations just want to make money. So, if you let the corporation with a privileged economic legal position loose in the political sphere, when we’re deciding who to elect, I think you are giving them an enormous advantage over individuals and not a healthy one for our democracy.

BILL MOYERS: What do you think will be the result if Floyd Abrams and his side prevail next week with the Supreme Court?

TREVOR POTTER: I think we would see an enormous change in the way our democracy is conducted. And that’s really dangerous to think that that would happen in a case that, you know, as I say, the Supreme Court has largely created, because there are very narrow ways to deal with this issue, and one that would be contrary to what the Congress has done again and again in 1907, ’25, Taft-Hartley in ’47, federal campaign law in ’74, McCain-Feingold. All of these are part of that tradition of saying that individuals speak and vote and are citizens and corporations have a different status. And they ought to be focused on the economic marketplace and not the political marketplace.

TREVOR POTTER: I think there’s some risk here that the court will forget. That it is dealing with laws passed over a century by Congress, by the other branches of government, that, in my view, have worked well. And so, in some ways, what you have here is a solution in search of a problem. And that’s worrisome.

BILL MOYERS: What did you think as you heard Floyd talk about the fact that yes, maybe in a corporation there should be some limitations, but when it comes to free speech, no limitation.

TREVOR POTTER: I respectfully — and I have enormous respect for Floyd and his career as a First Amendment lawyer — I thought it was backwards, because it seemed to me that corporations ought to have great latitude as economic competitors, restricted by the laws that Congress has put in place on competition. But basically, corporations exist for economic reasons. That’s where you want them competing. These courts have never said corporations have full First Amendment rights.

And I think that’s the right balance. Floyd talked, “Well, if corporations are too powerful, then we should make them smaller.” But I don’t think that makes sense in society, when we’re trying to have corporations competing in a global marketplace. So, to me it’s backwards to say we’re going to give them political rights and then we’re going to turn them into different size corporations to deal with that.

Seems to me you want them to be good competitors in the world and you don’t want them to be overpowering the political marketplace at home. And that raises another issue here which no one has really been talking about. And that is corporations are global. We have international corporations. We have had a long tradition in this country of saying that foreign nationals may not participate in U.S. elections and that includes a ban on political speech. What about foreign corporations? What about multi-national corporations? I think you’re opening a can of worms on that.

BILL MOYERS: Are you opening a can of worms?

FLOYD ABRAMS: You’re opening the faucet, so to speak, so that more speech can occur. I don’t think it’s a can of worms to say that corporations, and it is unions as well, ought to be able to participate in the give and take of the democratic processes in the country. From my perspective, at least, the notion of saying that corporations and unions should be out of the picture either because they’re too powerful, or because of the way their money has been created, is so inconsistent with the sort of First Amendment approach that we take in everything else, where we say over and over again, we don’t care who the speaker is, we don’t care where the speaker’s coming from. And speech, we think, is, as a generality, a good thing.

TREVOR POTTER: We do think speech is a good thing. The question though is should it be citizens, individuals, voters, who are speaking? Or should it be this artificial corporate entity, which we have, through law, given enormous economic power to. And what the court has said all along is there is a difference between the two. The court has never said that corporations have the right to unlimited independent political speech.

BILL MOYERS: This movie’s not the issue.

TREVOR POTTER: The movie started as the issue. And as Floyd has noted, it’s becoming a much bigger case with a fundamental issue in it. And I look at it and say, “Why? What is wrong with the law as it stands?” And I don’t see the answer.

FLOYD ABRAMS: I think one of the reasons it’s become a much bigger case is the candor of the representative of the Solicitor General’s office. Who, answering a hypothetical question asked, during the argument in March, said, yes — as a constitutional matter, Congress has the power not just to deal with television and cable and the like, but books. Yes, if — he said — yes, if a book is partially funded by a corporation, Congress has the power to say that within certain time zones, et cetera, during an election campaign, that the publication of the book can be a crime. And there was some audible intakes of breath on the Supreme Court when that was said. Now I happen to agree, that’s been the law for awhile.

FLOYD ABRAMS: But I don’t think we can live with that.

TREVOR POTTER: I’m laughing, because I think that is the epitome of a red herring here. The Solicitor General was answering what Floyd correctly says was a hypothetical. That’s where you are in law school, and they say, “Well, just supposed the facts weren’t as they are, but they were something else entirely.” The reality is there has never been a case in all the years we have had these laws prohibiting corporate spending prosecuting anyone for publishing a book.

The law itself has an exemption for commercial speech. So, if somebody is engaged in selling a book, it’s completely exempt anyway. There’s an exemption for press activity. So, this goes to my point, what we’re doing here — and I think this is why it’s dangerous — is we’re essentially having a high level law school seminar on the Supreme Court about hypothetical, constitutional questions. But the potential result of that, because it is the Supreme Court, is they could end up changing the real world, when the real world actually functions without any book banning at all.

FLOYD ABRAMS: See, but what I think is going on is that the court acting properly, acting it should, is sort of exclaiming if you can do it to a movie, you can do it to a book. Tell us the difference. The answer is, “There’s no difference.”

TREVOR POTTER: No, the answer is the law doesn’t do it to books. And the law–

FLOYD ABRAMS: But–

TREVOR POTTER: –only restricts corporate money for movies, if you construct this sort of a case to make sure that the activity is not covered by any of the exceptions that are in existing law.

BILL MOYERS: But both of you have conceded that this is about more than a movie or a book. This is go fundamentally to the role of corporations in our political elections. And this concerns you, because you say in your brief that this is dangerous.

TREVOR POTTER: Well, if you just look at the numbers here you are dealing with a world we just have never seen in elections. Exxon Mobil has a political action committee, which means voluntary contributions given by shareholders and executives, about 900 thousand dollars in the last cycle. It made last year 85 billion dollars.

Now, there’s just a world of difference in the resources available if you say to a corporation, “You can spend money to defeat global– candidates who are in favor of global warming legislation.” If coal companies can go out and say, “If you don’t sign our pledge to support coal we’re going to defeat you. We’re going to spend money against you.” You take those enormous economic resources and you use them for something that we’ve never seen before. That I think is the radical nature.

FLOYD ABRAMS: I think that’s a real exaggeration about the likely impact if the side I’m on happens to win this case. We have 28 states now that allow unrestricted contributions, as well as independent expenditures. We haven’t seen anything in the way of corporate control. And it’s easier to control a state than it is the country. Coming about or distortion of the processes coming about as a result of the fact that corporations can give and can spend in all these states.

So, I don’t think there’s a real reason to think that the large corporate entities in this country are going to run the risk of public wrath, stockholder suits, new attempt at legislation, coming out against, a popular president or an unpopular Congress? I mean, I think as a practical matter we really shouldn’t fear so much the impact of having a greater amount of corporate money in play in allowing them to speak out.

BILL MOYERS: Would you disagree with the claim that big business dominates the political discussion today? Whether it’s the drug industry or the health insurance industry? Big business is the dominant force in Washington. I mean, I see that as a journalist.

TREVOR POTTER: Well, if that’s true. Just wait till you have unlimited spending by corporations, because you’re saying they dominate in a world in which they have very limited PAC contributions. And they can’t go out and advocate the election defeat of candidates. I would disagree with Floyd, I think, on what we know about the states. First of all, there’s no record in this case, because this issue was not litigated on this basis at the lower courts. So, we don’t– there’s no opportunity to brief for the Supreme Court–

FLOYD ABRAMS: Well, I think we’ve had a lot of–

TREVOR POTTER: What we have learned–

FLOYD ABRAMS: –supplemental briefs.

TREVOR POTTER: Well, I mean, they’re 15 pages long. We haven’t had a trial court look at the information from the states. There was just a recent study out of California, which is one of the states that allows full corporate spending, in which that state’s campaign finance board said there’s an enormous amount of corporate spending. It is directly influencing candidates and elections. And it’s hidden, because it’s going through all these groups that are front groups and sound like the, you know, Committee for a Better California. And it’s really corporate spending, which, of course, avoids those angry shareholders, ’cause they don’t know about it.

In judicial elections, there is an increasing record of spending by the chamber of commerce and other business groups to elect judges who will rule in their favor, because that’s in their economic interest. If you open this up at the federal level, just imagine the incentive for a corporation that only needs a little piece of this bill, a little piece over there to make their competitive position better than their commercial opponents.

FLOYD ABRAMS: And that’s why we’ve banned contributions. But in terms of having speech from the corporations, speech from the unions, the notion that allowing that will therefore result in vast changes in the political system is not only untested but unlikely. And I’d add another note. And that is I don’t know and none of us know the consequences of allowing more speech in this area. We don’t usually judge in the First Amendment area on the basis of what we suspect consequences might be.

If speech is allowed, it’s allowed. If speech is of the sort that we permit, which is just about everything, from just about everybody and just about everything, we don’t say, “You know, come to think of it, if we have too much Glenn Beck the country is going to really suffer from it.” We don’t live like that. We start–

BILL MOYERS: But we’re not talking about free press issues here. We’re talking about the power of an organized economic interest to spend vast sums of money that individuals can’t spend.

FLOYD ABRAMS: I don’t hear you using the word speech. I mean, it’s all very well just to characterize this and diminish the problem by calling it just spending a lot of money. It’s more than that. It is participating in the political process. It is speaking out. It is being heard. I’m in favor of more disclosure to deal with the secret sort of problems that Trevor has correctly identified. But in terms of saying that it is as a policy matter, let alone a legal matter, but even as a policy matter something we should avoid and fear if we have more active, loud, public participation in the political process, my reaction is that is the core indeed of what the First Amendment has always been thought to be about.

BILL MOYERS: Do you really believe that the founders, the men who wrote the Constitution included corporations in the idea of free speech

FLOYD ABRAMS: I don’t know.

BILL MOYERS: Jefferson in 1816 wrote a famous letter about the aristocratic, moneyed corporations, and how they were a danger to us. And the evidence seems to me to the contrary, that they were worried about the power of these economic entities to dominate the political process.

TREVOR POTTER: Well, they thought we were a representative– they wanted us to be a representative democracy, representing the electors. And the electors are not corporations, which are not individuals and don’t vote.

BILL MOYERS: What about that? That seems to me, the real basis of this. Is a corporation the same as an individual for the purposes of free speech?

FLOYD ABRAMS: Well, media corporations certainly are, are they not?

BILL MOYERS: Well, that’s First Amendment free press.

FLOYD ABRAMS: Thanks a lot. But that’s free press, you say. Why is it that large corporate entities, which own newspapers and broadcasters are treated, indeed as I think they should be, but treated as if Congress can’t touch them in this area. The notion of saying, General Electric ought to get more power and more rights than General Motors? I don’t find that in the Constitution.

TREVOR POTTER: Absolutely not. But what–

FLOYD ABRAMS: And the fact that General Electric owns NBC doesn’t change that dynamic. And the fact that Viacom had ownership interest of CBS doesn’t change that or shouldn’t change that. I mean, the First Amendment is not just the property of the press. The press deserves, and gets, but deserves the broadest protection. But so do all other speakers. And once we get an institutional press-only First Amendment we’re going to have a lot more problems than we’re bargaining for.

TREVOR POTTER: My point is I think we’ve had a press First Amendment for almost 100 years and we have not had problems. The example that Floyd gives I think proves it. Which is NBC has freedom of the press, because that’s its function. Its owner, GE, has a more limited speech freedom, which is, under current law, to speak to its shareholders speak to its executives, internally endorse candidates, but not go out and spend the billions of dollars it has in the general political marketplace. The press is in a position where it is able to speak with full constitutional protection. That is not true of the seller of shoes or automobiles, where you and I go out and buy them irrespective of their political views and may not know their political views. We just want their product where their shareholders are in it for economic gain, not to advance political views.

BILL MOYERS: But this is not an issue of free press. It really isn’t. This is an issue of free–

FLOYD ABRAMS: This is an issue of free speech.

BILL MOYERS: And you’re– I come back–

FLOYD ABRAMS: And why are we limiting free speech? If the movie had been funded in a different way, if the funds had come from different sources, then respectfully, but thanks very much– then it would be protected. But because the funding came from a corporation. Because of that, we can make it a crime to put the movie out. That I think is an unacceptable articulation of not only what the First Amendment has meant. But what it ought to mean, as well. We should not make technical distinctions about the degree of First Amendment free speech rights, depending on the nature of the entity that engages in the speech.

If a company wants to speak out beyond an issue. If they want to condemn a Senator who is opposing legislation that has an impact on the company’s interest, economic or otherwise to me it’s just anathema to the notion of free speech to say, “Well, you have to understand it’s a company. Their funding is different.” That’s not the way we ought to go about deciding the limits of free speech.

TREVOR POTTER: I think you, though, understate the enormous amount of speech that exists in the current system, which is essentially full free speech for individuals; the ability of a corporation or a union to have a political action committee gather individual funds and spend that, the exemption that exists for the press; the commercial exemption that exists; the exemption that the Supreme Court created for nonprofit corporations, as long as they’re not a conduit for corporate funds.

Everybody has the ability to participate in the political process, meaning here the election or defeat of candidates, except the for-profit corporations using the shareholders’ treasury funds. That, it seems to me, is a appropriately narrow exemption given whose money that is, the shareholders and the circumstances under which it was created. They can still go out and attack a Senator. They do all the time.

BILL MOYERS: Why should the executive of a board of a big corporation be able to take– you know, I have 401(k)s and retirements and I’m invested in those firms. Why should they be able to take money from the shareholders and back particular candidates or run particular-ads?

TREVOR POTTER: Well, that, of course, is a whole different issue, which we really haven’t talked about. Which is, wait a minute, whose money is this anyway? It is not the CEO’s, who’s making the decision. If you’re going to say corporations should have speech, then you open the whole question of, “Well, who decides what that speech should be? Don’t you consult the shareholders? Do you allow shareholders to opt out? The way you allow union members to opt out of having their money used?”

FLOYD ABRAMS: But–

TREVOR POTTER: But it seems to me you don’t need to get there, because you have the political action committee already.

BILL MOYERS: There’s no shortage of corporate speech in this country, right?

TREVOR POTTER: That would appear to be the case if you look at–

FLOYD ABRAMS: Well, I think you’re wrong, Bill.

TREVOR POTTER: –any daily television.

FLOYD ABRAMS: I think you’re wrong. To say, “Well, we can just carve out this area. We can carve out the speech of these entities, the entities, corporations, not their officers. Not their boards. The corporation, as determined by the folks that run it and the shareholders and whatever way state law determines to say that those entities may not be heard in their own voice, with respect to continue with the–”

BILL MOYERS: Their own voice? Whose voice?

FLOYD ABRAMS: The corporate voice. Who runs the corporation? Management runs a corporation. Shareholders can–

BILL MOYERS: So, this is the speech of the managers of the corporation?

FLOYD ABRAMS: No, it’s not just that. I mean, you’re not objecting to the notion of corporations, in general, Bill.

BILL MOYERS: I object to the notion–

FLOYD ABRAMS: I mean, corporations–

BILL MOYERS: –that a corporation is equal to an individual.

FLOYD ABRAMS: The fact that we’re suspicious of corporations sometimes and of unions, sometimes, not only because of what they say, but because of their power and what they might do, is just not a good reason to say that they have to be silenced.

TREVOR POTTER: I think the difference here is that Floyd presents that as a dangerous and novel idea. And says we shouldn’t go there. I respond by saying, we are there. We have been there for many, many years. The system has functioned, I think, well. So, to me, it is Floyd who has the dangerous and novel idea, which is we should change what has worked, has been held constitutional and go to a system when we have no idea what the effect will be, but based on what we can see, and have seen in the past, we could really have some bad affects on our democracy.

BILL MOYERS: Well, the–

FLOYD ABRAMS: My novel idea goes something like this. “Congress shall make no law abridging the freedom of speech or of the press.” I don’t think that those words are consistent with a regime, a system of law, which bars the amount of speech that we’re talking about today.

TREVOR POTTER: I think that my historical perspective is oddly longer than Floyd’s. And that we would be going back before 1907 and Theodore Roosevelt and the prohibitions on corporate activity in federal elections. We’d be going back to the senator from Standard Oil. That would be a very different world and one that no one alive has ever seen.

BILL MOYERS: We know all this started because it was revealed that Theodore Roosevelt had received secret contributions from New York insurance companies, when he was running, because they wanted legislation out of Congress that would benefit their position. And when the revelation was made, not before, but when the revelation was made, Roosevelt was so embarrassed, he raced right up to Congress and said, “We’ve got to do something about this.”

FLOYD ABRAMS: That’s why we have to be afraid of Congress and politicians making decisions in this area.

BILL MOYERS: But these are positions that you leave to legislatures. I thought conservatives–

FLOYD ABRAMS: You don’t leave free speech decisions to legislatures.

TREVOR POTTER: I would say that legislatures are uniquely knowledgeable here about how legislation has actually made. And your point is that legislators then knew that corporate money was influencing their decisions.

BILL MOYERS: Senator from Standard Oil.

TREVOR POTTER: And what came out of Congress to govern the rest of us. That was what was shown in the long record in the McCain-Feingold litigation. Members of Congress said corporate money is affecting directly amendments, what is voted on, the final language of legislation that has a disproportionate, corrupting influence on what is happening in Congress.

FLOYD ABRAMS: I asked Senator McCain–

TREVOR POTTER: That’s the worry.

FLOYD ABRAMS: –when I took his deposition, in that case, to give me an example of a vote that was changed because of contributions or independent expenditures. And he did not and could not do that.

TREVOR POTTER: Senator McCain is a very polite man, who respects his colleagues and if you go back and look at the record there were a number of affidavits from former members. Interestingly, it’s the former members in this who are the truth tellers. They’re always the ones who say, “Let me tell you what happened when I was there.” And why is that? Because they don’t have to deal with their colleagues, they’re not up before the voters and admitting something terrible. So, they can say, “This is what I really saw.”

And I think that’s the other piece of this whole case, is we’re not just talking about the ephemeral or the broad idea of what is a free speech right of a corporation. We’re talking about how does the legislative process actually work. And what sort of corruption or apparent corruption would you have if you had the ability to spend this money?

BILL MOYERS: As a journalist, I have seen over the years, done documentaries, have reported on this issue, money and politics. And I’ve seen the consequences of huge sums of money in our political process result in legislation biased for the corporation.

But on this point, we will close now. But I want to give both of you a chance to wrap up your case by giving me your response to what the Solicitor General of the United States, Elena Kagan, will say to the Supreme Court next Wednesday. In her brief, she argues that the use of corporate treasury funds is quote, “inherently likely to corrode the political system, both by actually corrupting public office holders and by creating the appearance of corruption.” Do you think that is a justifiable concern?

FLOYD ABRAMS: I don’t think it’s true. I also know the record from the McConnell case. God knows how long it is. And there wasn’t any proof of corruption. So, my reaction is, I think she’s exaggerating on the one hand. And I think she’s ignoring on the other because she doesn’t even acknowledge that this is a free speech issue.

We are confronted with competing values here. And the values of speech are at odds in this area with the desire of well-meaning and very serious people, to do what they think they should to make the system work better. And my view is that the speech interests here are very high, very important, very serious and that when you take them into account you can’t sustain the sort of statutes that we now have on the books and that the Supreme Court is, essentially, taking a second look at.

TREVOR POTTER: Well, I think the Solicitor General’s comments to the court are a warning bell in the night. That she is right that there are enormous implications to this case. I think, ironically, one of the reasons she’s right is because of the very natures of corporations. As we’ve discussed, they exist to make money. They are profit-maximizing. That’s their job.

So, we’re not talking about political speech by people who care about their country, who are concerned about changes in society, who are dealing fairly with friends and neighbors and all the things that get involved in politics. We’re talking about a potential spender here that has a single-minded purpose, which is to make more money, to maximize their value. And I think what we’re looking at here is not a First Amendment speech right, because the individuals who head those corporations have that now, their PAC’s have it now, their shareholders have it now. We’re talking about using the funds that are amassed under the preferential corporate treatment, to go out and seek economic gain, what they call economic rents, through legislation, by electing people who will give the corporation what it wants, whether or not is in the greater good. And I don’t think that’s the essence of democracy. And I don’t think it has been or should be the way the First Amendment is read.

What’s Wrong with “Big” Government?

Written by Robert Justin Lipkin on August 10th, 2009

Americans have been wary of too much government from the Republic’s inception. We fought a revolutionary war against tyranny, twice within the first fifty years of our great nation’s existence, and several times thereafter. And government, our government, was a lot smaller then. But is anyone else getting tired with the inbred American aversion to progressive governmental efficiencies which can bring about the goods and services Americans want and need and which justice requires? After all, we, the people are, in the final analysis, the government. Accordingly, the government should be as capacious as we, the people want it to be. If we want government to be involved in health care, the economy, the financial system, the environment, education, well, then it should be.  That’s what a republican democracy is for, to wit: within the confines of constitutional constraints, here the people rule. Unfortunately, this inbred American aversion goes back as far as our first great President and perhaps made special sense then. ctmpphpgsEIRqConsider the following statement of the debate over whether we should have a bicameral legislature. “[A] bicameral legislature slowed down the legislative process. That was a good thing to many of the framers, who worried about excessive government power.  When Thomas Jefferson questioned the role of the Senate in the 1790s, George Washington allegedly asked:  ‘Why did you pour that coffee into your saucer?’ ‘to cool it,’ said Jefferson.  ‘Even so,’ replied Washington ‘we pour legislating into the senatorial saucer to cool it.'” Linda R. Monk, The Words We Live By: Your Annotated Guide to the Constitution (2003).  But in cooling it, we risk seeding the ground for killing it. Sure sometimes that’s good.  But it’s also good to have a lean self-governing process to which the majority–consistent with preserving minority rights–can have access.  Absent such a viable process, well-funded special interests control the destiny of the American Republic. In these circumstances, the corporations rule, not the people.  That can’t be good for the majority of Americans, can it? I know, I know, the founders created a Republic, not a Democracy. But is this distinction quite as useful as perhaps it once was, if it ever was?.  Most Americans want to live in a self-governing polity where the right to self-government–collective-self-direction–permits us to achieve the benefits of our labor–everyone’s labor–and also the benefits of civilization. Several times in American society the private sector has been given its chance and each time the results were problematic at best at least for most Americans.  I know, I know. American capitalism produced more economic growth than any other nation or system and is currently the envy of and the model for the world. But what has it done for us lately. And what do we call “economic growth without fair distribution”? Perhaps, pre-2007 capitalization has huffed and puffed it’s way out.  Moreover, privatization only occurs in the context of law and law means government. So the private sector is just one of several forms of government. Those ideologically committed to the government of privatization usually are indifferent to the needs and aspirations of the highly variegated forms of American life. Big government is not the problem. Oppressive government is.  And laws protecting the private sector and corporate power while preventing the little guys from effecting change can be as tyrannical as any despotic regime.  As Paul Krugman puts it: “[S]ometimes the private sector is the problem, and government is the solution.”

Can’t we try dropping the jejune dichotomy between government and the good guys and see if we can solve our problems fairly and with the common good in mind? Let’s switch to what should have been our ethos all along–democratic capitalism–where the reflective majority will prevails over those whose self-interest prevents them from seeing beyond the narrow corridors of their own insulated hermitages.

Justice Sonia Sotomayor

Written by Robert Justin Lipkin on August 8th, 2009

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It’s official: the 111th Associate Justice of the United States Supreme Court has now been sworn in. I am neither female nor Latino; yet I’m brimming with pride. Perhaps, since I am neither female nor latino, “delight” is more appropriate. NO! I might not be female or latino, but that doesn’t prevent me from being proud of  another human being whose ethnicity and gender has disadvantaged her in this great egalitarian society and has gone on to beat the odds.   The day is finally here. Finally, a Hispanic on the Court—another minority–and the third woman.  I look forward to teaching her judicial opinions.

One Step Closer for the First Latina Appointed to the Court

Written by Robert Justin Lipkin on July 28th, 2009

As reported in the NY Times: “The Senate Judiciary Committee voted, 13 to 6, on Tuesday to endorse the Supreme Court nomination of Judge Sonia Sotomayor, easing her path to likely confirmation as the first Hispanic member of the tribunal.”  The question now is just how many total votes Judge Sotomayor will receive. Senator Lindsay Graham was the only Republican on the committee to vote in favor of Judge Sotomayor. Why? Is it plausible to believe that she wouldn’t get a yes vote from other Republicans in a fair and impartial procedure.  Judges, of course, must be fair and impartial, but Senators Grassley and Hatch do not. What a system?

Will these “fair and impartial” senators and their kin suffer electorally in the next election?  Should they?

Do Judicial Confirmation Hearings Help Us Get to Know Future Supreme Court Justices?

Written by Robert Justin Lipkin on July 20th, 2009

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 howtmpphpnrkium1.jpg 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.

Senator Coburn’s Misreading of the Tenth Amendment

Written by Robert Justin Lipkin on July 17th, 2009

It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings:

You know, I — people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn’t spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.

But that’s not what the Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the ptmpphprcldyw1.jpgeople.” This doesn’t come close to saying that “everything that wasn’t spelled out specifically for Congress to do was explicitly reserved to the states and to the people.” This might be what Senator Coburn wants the Tenth amendment to say, but that’s just judicial activism, legislating from the bench, making, not interpreting law. Indeed, Senator Coburn’s interpretation of the Tenth Amendment is closer to a similar, but much stronger “states’ rights” provision in the Articles of Confederation, the first American charter replaced by the United States Constitution. Here’s the relevant provision “Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (Emphasis added) There’s no “expressly,” “spelled out specifically,” or “explicitly reserved to the states and to the people” in the Tenth amendment. If Senator Coburn is going to object to going beyond the plain words of the Constitution, shouldn’t he be required to know what those words are?

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.