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With all this talk of the possibility of Hillary Clinton on the Supreme Court, I'm surprised no one has mentioned the most obvious precedent for it. Not so long ago, a former U.S. senator and a loyal Democrat was confirmed to the Supreme Court. Like Hillary, he was born in the Midwest and had studied law at Yale. Like Hillary, he had been considered a rising Senate star. Like Hillary, he was widely admired for his interpersonal skills.
That justice was, of course, Sherman Minton. (Crickets chirping...)
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There must be something in the water in the West Coast. A few hours ago, the 9th Circuit Court of Appeals (sitting in Seattle) handed down another pro-gay decision in Witt v. Department of the Air Force. Like the California Supreme Court decision issued six days ago, this opinion marks a significant advance for gay rights. In Witt, the court of appeals opened the door for an eventual challenge to the military's "don't ask, don't tell" policy in the U.S. Supreme Court. But the likelihood that the Supreme Court would ever invalidate the policy remains slim.
In Witt, the 9th Circuit considered constitutional challenges to the military's "don't ask, don't tell" policy, which generally separates gays from the military if they engage in homosexual conduct. The federal appellate court found that the district court, which had dismissed all of the plaintiff's claims, had erred with respect to one of them. Specifically, the 9th Circuit stated that the district court had failed adequately to grapple with the plaintiff's claim that the "don't ask, don't tell" policy infringed on her right to sexual intimacy. The 9th Circuit panel elaborated that the Supreme Court had increased protections for that right in the 2003 case of Lawrence v. Texas.
The 9th Circuit didn't strike down the policy, but sent the case back to the district court with instructions to apply the correct standard to the facts. It will be interesting to see what the district court does when it balances this newly elaborated heightened protection for homosexual conduct against the enormous thumb on the scale on the other side called "military deference." There is some chance that both the district court and the 9th Circuit would invalidate "don't ask, don't tell" under this analysis. But if this case made it to the current U.S. Supreme Court, I have little doubt that the court would uphold the constitutionality of "don't ask, don't tell."
The problem here is the precedential landscape relating to military deference. The deference arises because the Constitution gives power over military affairs to Congress (through, for instance, various provisions of Article I, section 8) and to the Executive (through, for instance, Article II's anointment of the president as the commander in chief of the military). This deference has led the Supreme Court to reject civil rights challenges to military policies with almost mechanical consistency. In 1986, the court rejected a rabbi's free exercise challenge to an Air Force regulation that prohibited him from wearing a yarmulke. Similarly, in 1981, the court rejected a sex discrimination challenge to the male-only draft. And of course, in 1944, the Court rejected a race-discrimination challenge to the military's internment of individuals of Japanese descent during World War II.
Don't get me wrong—there are strong structural and textual grounds for why the the judiciary should defer to other branches of government with respect to military affairs. However, here as in the detainee cases, deference should not be a blank check for the political branches. Last time I checked, there was no military exception to the Constitution. But one would not know that by reading most of the race, sex, religion, and (in the lower courts) sexual orientation decisions promulgated by the federal judiciary.
It's great that the 9th Circuit took this stand for at least two reasons. First, its novel pro-gay interpretation of Lawrence can now be used in the 9th Circuit outside of the military context and may persuade other jurisdictions to follow suit. Second, as a matter of principle, it forces the lower court to re-examine a nonsensical and unjust policy. But I'm not holding my breath for the Supreme Court to invalidate "don't ask, don't tell." If we ever get rid of this policy, it will likely be through Congressional repeal, with the court deferring all the way.
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There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.
So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.
That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.
William Howard Taft found the court far more attractive than the presidency itself. Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.
James Andrew Miller, who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post, suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.
Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing. All pretty exciting for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.
The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.
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In case you missed what in most news cycles would've been headline news, Defense Secretary Gates told a subcommittee of the Senate appropriations committee yesterday that efforts to close Guantanamo were "at a standstill." CNN quotes Gates testifying: "The brutally frank answer is that we're stuck."
Why? Gates says there are about 70 detainees who the DoD has cleared for release, but their home countries won't take them back, or would take back but then release them (presumably against the DoD's wishes). Other detainees are "ineligible for prosecution" for reasons Gates didn't detail (I have a few guesses). And there's a core (of fewer than a hundred, sounds like) who "can't" be prosecuted but whom Gates sounds very certain are bad guys. He'd like to continue detaining these folks somewhere other than Gitmo, but apparently the Pentagon is having a hard time persuading a state to let them bring these guys into the continental United States.
Could be that the DoD would have more success placing the detainees it is ready to release with home country hosts if we hadn't spent so much time calling these guys the worst of the worst (or otherwise generally making it clear we didn't much care what other countries think). Could also be there'd be more prosecutions if there'd been less abuse. And could especially be that there are federal facilities inside the United States that are under federal control, usable as prisons even if the states would rather not have these guys in their back yards. But recognizing that things are now far worse than they needed to have been doesn't exactly tell us what should happen next. Given the past mistakes (to put it kindly), none of the solutions ahead is going to be ideal.
Gates has been widely credited with being the non-Rumsfeld, and seems genuine in his desire (public and private) to close Gitmo down. But given this bleak testimony, it's hard to imagine any of this getting fixed anytime before 2009.
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I like James Andrew Miller's op-ed arguing that Obama should promise Hillary Clinton a position on the Supreme Court, if only because it lays bare so innocently the popular wisdom about the role of the court in American politics. On this view, the court's legal function is minimal, perhaps zero; it is really a council of elders who evaluate legislation on policy grounds, or a third house of Congress that retains a right to veto legislation enacted by the other two. It is more important for justices to be able to horse-trade than to engage in legal reasoning (one's experience as a judge is "inconsequential"). The Warren Court's greatness is due to the political skills of its leader, an ex-governor rather than a person distinguished by his legal talents.
Can we justify a third house? In some ways, it is just a throwback to the original vision of the Senate, which was supposed to consist of notables, quasi-aristocrats, who were not directly elected but appointed by other politicians (state legislatures) who were able to recognize their status and talents. The Senate would restrain the excesses of the House, whose members were directly elected by the rabble and thus likely to indulge its crazy populist impulses. Democracy is kept in check in order to ensure that democracy prevails, with the elites acting through their agents (talented and successful members of the ruling class) determining when democracy gets out of hand. (Modern constitutional theorists call this activity ensuring that law complies with the "principles" underlying the Constitution.) When senators became subject to popular vote in 1913, the elites lost an important device for protecting their interests; the Supreme Court has filled this vacuum.
It's not a terribly appealing picture, but it may be the system we have. If so, it makes sense to evaluate potential appointees on purely political grounds—what are their policy preferences, how strong are their political skills, do they reflect the interests of an important constituency? If the choice for Obama is obvious, then so is the choice for McCain. Although President Bush does not have high approval ratings at the moment, and his decision to invade Iraq was questionable, he undeniably has significant political skills, and his policy preferences are well-known and appealing to the Republican base. True, Bush has no legal experience, but, if Miller is right, this is at best a minor consideration, and there is no rule that Supreme Court justices must be lawyers, anyway. Justice Clinton or Justice Bush? That's a choice worth pondering.
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A few months ago, my colleague Heather Gerken and I had the pleasure of attending a symposium at the University of Tulsa Law School to honor the work of Laurence Tribe. We both spoke on Tribe's theories of liberty and equality, focusing on the case of gay rights. Following Tribe, we think these two concepts are sufficiently intertwined that it is simplistic to argue for liberty instead of equality, or vice versa. But as we hammered out final versions of our pieces-titled "Larry and Lawrence" (Gerken) and "Tribe" (Yoshino)-we realized we had a productive disagreement about whether the courts should lead with the liberty or the equality argument. Heather favors leading with equality; I favor leading with liberty. We thought it might be productive to have a couple of rounds of that conversation here, especially because the California Supreme Court's marriage case makes both liberty and equality arguments. In Round 1, I will focus on the descriptive claim that the courts will "lead with liberty" in the future, and Heather will respond. In Round 2, Heather will make the normative claim that the courts should "lead with equality," and I will respond. As both of us continue to develop our ideas, we welcome input.
Yoshino opening post (Round 1):
I believe that if the Roberts Court does constitutional civil rights at all, it will lead with liberty rather than equality claims. Because they must give principled reasons for their decisions, the courts are institutionally incompetent to pick and choose among groups, which is what traditional group-based equality analysis requires. As the number of groups in American society proliferates, the courts will therefore be pressed inexorably away from group-based equality claims and toward universal liberty claims.
To support this thesis, I make three moves. First, I make the descriptive claim that the Supreme Court in the past decades has closed three traditional equality doors because it is worried about the slippery slope created by the "too many groups" argument. Second, I argue that even as the Supreme Court has closed these equality doors, it has pushed the liberty door further open to compensate for the foreclosure of these equality claims. Third, I observe that the Supreme Court has often used liberty claims to vindicate equality claims in the past. The Supreme Court, in other words, has always used this strategy but now has greater incentives to deploy it.
Over the past 40 years, the Supreme Court has closed off three forms of relief under the equal protection guarantees of the Fifth and 14th Amendments and the free exercise guarantees of the First and 14th Amendments. It has (1) closed the canon of heightened scrutiny classifications under the equal protection guarantees (as intimated in the 1985 Cleburne case); (2) foreclosed disparate impact causes of action (in the 1976 case of Washington v. Davis and the 1990 case of Employment Division v. Smith); and (3) placed more limitations on what Congress can do using its Section 5 power to enforce the guarantees of the 14th Amendment (in the 1997 case City of Boerne v. Flores).
The court has been admirably clear about why it has done so-it is worried about the "too many groups" problem. The court knows that the moment it grants protections to one group, myriad others will be on its doorstep the next day clamoring for the same protection. Of course, the court has always had the problem. But as American society has become more and more visibly diverse, the court has become more aware of its predicament. So in Cleburne, the Court denied the mentally retarded heightened scrutiny in part because it believed it could not distinguish the claims of other groups, such as "the aging, the disabled, the mentally ill, and the infirm" in a "a principled way." In Smith, the Court refused to grant religious exemptions from rules of general applicability in part because "in a nation as cosmopolitan as ours" the religions would swallow the rule. And in Boerne, the court stated that Congress could not enact the anti-discrimination legislation protecting the disabled under its Section 5 power, because of the "quite prescient" slippery-slope rationale adduced in Cleburne.
If that were the end of the story, the prospects for constitutional civil rights would be dreary. But as the Court has closed these three equality doors, it has pushed a liberty door further open. The dynamic here has been like that of squeezing a balloon, where pinching off equality jurisprudence has caused the civil rights commitments of the court to be pressed over to a collateral area of doctrine. That area of doctrine is the "substantive due process" jurisprudence.
For instance, in the 2003 case of Lawrence v. Texas, the court considered the constitutionality of a Texas statute that prohibited sodomy between people of the same sex. In striking it down, the court could have used an equality claim. Because sexual orientation has never received heightened scrutiny, this would have been a tough sell for the court, notwithstanding the 1996 Romer case. So instead, the court struck down the statute on liberty grounds, stating that it violated the right of every individual to have adult consensual sex in the privacy of his or her home.
In the next term, the court made an analogous move with respect to Congress' Section 5 powers. In Tennessee v. Lane, the court considered whether Congress could force the states to make their courthouses wheelchair accessible. In stating that Congress had this power, the court did not rely on the Congress' power to protect the rights of individuals with disabilities. That move was effectively foreclosed by the University of Alabama v. Garrett case in 2000. So instead, the court stated that Congress had the power to assure that all individuals retained the "right to access the courts."
Two swallows do not a summer make. But if we look back in time, we see that many of the canonical cases decided by the court on liberty grounds had equality undertones. The court decided both Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) on the basis of the right of parents to control the education of their children. But scratch the surface of these liberty cases and it becomes clear that they concerned the rights of national origin and religious minorities. Meyer struck down a statute that prohibited schoolchildren from learning foreign languages like German in the wake of World War I, while Pierce struck down a statute that barred children from attending parochial schools. Buchanan v. Warley, while decided as a case about the right to contract, clearly was focused on the special debilities placed on African-Americans in this area. The contraception cases (Griswold and its progeny), as well as the abortion cases (Roe and its progeny), focus so much on the rights of women that Chief Justice Rehnquist complained in his Roe dissent that it sounded too much like an equal protection decision. Liberty and equality are indeed intertwined, such that cases that seem to be decided on liberty grounds have often had undertones of equality. What has changed is not the strategy but the incentive to use it.
Gerken responds:
I have no quarrels with Kenji's lucid analysis of the doctrine. Nor am I unhappy that the Supreme Court in Lawrence relied on the liberty paradigm; it obviously worked. But I am puzzled by his claim that a liberty framework is the most promising path for litigation going forward because it solves the "too many groups" problem that worries the court. For the full response, click here.
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Jack and Phil: I find the notion of an easy confirmation for the future Justice Hillary Clinton improbable if not impossible for the reasons Jack suggests: The conservative base cares about the judiciary above all. They’d fight even the next moderate, nerdy, and dull nominee to the death. But a lifelong liberal political activist? An effective dealmaker and horse-trader in the model of Bill Brennan or Sandra Day O’Connor? A Clinton?
And given that modern confirmation hearings have everything to do with overturning ancient trash cans, how long would Sen. Clinton’s hearing stretch on? A month? Three? It would certainly be great fun for the folks who believed the Starr Report was a little too thin on the lurid details ...
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Jack, thanks for flagging James Andrew Miller's op-ed recommending Hillary Clinton for SCOTUS. I admit it's an intriguing idea, but I think Miller misses the most important argument for Hillary when he writes, "The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government." In fact, Hillary's political experience would be incredibly valuable on the high court. In many ways, she could be an heir to the legacy of Earl Warren and Sandra Day O'Connor, who came to the court after decades of experience in elected and public office. As you note, this used to be quite commonplace, with many justices coming to the court after a career in elected politics. Their experience in the political branches of the government added to their work on the bench and a valuable understanding of how politics actually works.
Will Hillary be next?
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continue reading at Balkinization ...