LOS ANGELES DAILY JOURNAL ! WEDNESDAY, JUNE 24, 2009 ! PAGE 6
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Progressive Jurists’ Time Has Come
By Bruce J. Einhorn
ne of this nation’s great common law judges and Supreme Court justices, Benjamin Cardozo, wrote with eloquent insight that, “Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.” The nomination and likely confirmation of Sonia Sotomayor to the U.S. Supreme Court represents a sound step forward in reversing the rightward movement of appellate jurisprudence that has characterized the rulings of the nation’s highest tribunal in the time of Republican ascendancy in the nation’s political devolution that began with the presidency of Ronald Reagan and ended (hopefully) with the administration of George W. Bush. Sotomayor is an experienced judge with a record of decisions that combine a respect for precedent with a philosophy of moderate liberalism. That she is also the first Latina ever appointed to the Supreme Court is an added bonus for those of us who believe that, as our national motto proclaims, we are “out of many, one” — a rich tapestry of diverse human experience, from which a stronger, nobler United States has continued to emerge. The key question now is whether President Obama, himself a former lecturer in constitutional law, will seize the moment of his presidency and, as vacancies allow, appoint to the Supreme Court and the lower federal courts of appeals persons of proven scholarship and superior analytic and writing skills who possess a vision of the law predicated on the principle enunciated by the late, great Justice Louis D. Brandeis, that, “The logic of words should yield to the logic of realities.” Those realities include the persistence of poverty, environmental degradation, the arbitrary, often violent use
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of executive power in the name of national security, and the inequities of race and class that attend the treatment of criminal defendants and the foreign born.
Compassion in the courts will only be accomplished by jurists unafraid to defend the Bill of Rights, the Reconstruction amendments, and the Commerce Clause.
In calling for Supreme Court appointees with a demonstrated “compassion” in their efforts before the bar or on the bench, the president should also be mindful of Brandeis’s statement that, “If we desire respect for the law, we must first make the law respectable.” At long last, after years of reactionary Republican attempts to replace the progress in civil rights and regulatory control of corrupt corporate conduct and the predatory practices of credit institutions with the racist and economic injustices of pre-New Deal America, a window of opportunity has emerged for the nomination of justices and judges committed to a progressive approach to constitutional and statutory interpretation. Compassion in the courts will only be accomplished by jurists unafraid to defend the Bill of Rights, the Reconstruction amendments, and the Commerce Clause of the federal Constitution against the arrogance of power displayed by the political branches of government. Bush’s socalled “signing statements” must be
defeated by the signed opinions of judges and justices ready, willing, and able to advance liberty and justice for all, to defend the defenseless, and to recognize that our Constitution is not a dead instrument of the past but a living thing capable of meeting the realities of 21st century America. Admittedly, much of any judge’s work consists of applying the plain meaning of clearly established rules already well-defined by legal precedents. There are cases, however, often ones of constitutional or otherwise profound significance, where relevant rules and precedent possess gaping holes of definition as large and deep as the craters of the moon. In such cases, the view of Chief Justice John Roberts, voiced at his Senate confirmation hearings, that judging on the Supreme Court is like calling balls and strikes, is disingenuous. Anyone who has ever attended a baseball game knows that the catcalls that attend the calls made of pitches by umpires belie the notion that telling balls from strikes is a strictly objective affair devoid of interpretation. Judges and justices are not radar guns, whose determinations are more mechanistic than mental. Rather, judges and justices are, or should be, thoughtful beings wise enough to understand what Cardozo knew, that where the “obscurity of statute or of precedent or of customs or of morals, or collision between some or all of them, may leave the law unsettled, and cast a duty upon the courts to declare it retroactively in the exercise of a power frankly legislative in function.” A nominee to the Supreme Court or any other federal court should avoid coyness in the matter of judicial lawmaking. No matter how wise were the drafters of various provisions of the Constitution, and no matter how skilled the Congress in creating legislation, there will arise cases whose facts could not have been contemplated when the applicable law was enacted. Unanticipated situations will arise
where the language of the law is ambiguous and the precedents unclear. In such situations, wrote U.S. Circuit Court Judge Le Baron Colt as early as 1903, judges “have carried on judicial legislation from the infancy of the law in order that it might advance with society.” President Obama should depart from the ignorance or insincerity of his recent predecessors who sanctimoniously declared that they would never appoint justices to the Supreme Court likely to engage in the “judicial activism” of making law. The late Chief Justice William Rehnquist, a favorite of his fellow Reagan Republican conservatives, was no less a judicial legislator than his liberal contemporaries William Brennan and Thurgood Marshall. In his majority opinion in the 1995 case of Seminole Tribe of Florida v. Florida, Rehnquist quoted with approval the statement that, “Although the text of the [11th] Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, ‘we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition … which it confirms.’” The notion that Rehnquist and his fellow conservatives on the court have been “strict constructionists” of constitutional language is at best wrong-headed, and at worst, deceptive. Rather, the so-called strict constructionists have employed their own brand of judicial activism to reverse social advances such as the use of the Commerce Clause to limit the availability of guns near public schools and to expand environmental protection. As the clear victor in a presidential election where his Republican opponent promised to appoint only conservatives to the Supreme Court, Obama has every right to nominate progressive justices who will seek to apply the Constitution and laws of the land as levelers against the disproportionate influence of those who count water boarding, the voiding of much of the Voting Rights
Act, and the denying of available DNA testing to prisoners as legally acceptable. Presidents remain in office for four to eight years. Supreme Court justices and federal judges are appointed for life, and their influence may be felt for generations. Obama has the opportunity to use his power of judicial appointments to promote justice not just for him and for us but for his children and ours. He should exercise that opportunity and in doing so stimulate the legal system just as he has worked to stimulate the economy.
If we are to have a progressive jurisprudence marked by jurists who believe that law is not an end in itself, but rather a means to justice for everyone high and low, then we must have courts filled with men and women mindful of the caution expressed by Judge Learned Hand, that, “If we are to keep democracy, there must be a commandment: Thou shalt not ration justice.” Bruce J. Einhorn is a retired federal judge and a professor of law at Pepperdine University.
A Blueprint for Breathing Life Back Into a Dying Document
By Matt Valenti
I
s it dead or alive? The Constitution, that is. That’s bound to be one of the questions posed to Supreme Court nominee
Book Review
Sonia Sotomayor at her confirmation hearings this summer. Well, it might be one of the questions, assuming the Senate can avoid the current fi xation on sideshows like President Obama’s use of the word “empathy” or Sotomayor’s public comments about the wisdom of Latino women. But the truth is, there can be
no more important distinction between Supreme Court justices than whether they view the Constitution as a living document, responsive to the evolving needs and beliefs of the American people, or a dead document, its meaning forever set in stone by the framers. In 1988, President Reagan’s Justice Department produced a white paper known as “The Constitution in the Year 2000.” It began with the provocative statement: “There have been few times in the history of our country at which former Chief Justice Hughes’ famous statement that ‘the Constitution of the Unites States is what judges say it is’ has more accurately depicted the state of American jurisprudence.” It then went on to analyze a
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host of controversial social issues — abortion, illegal immigration, gay rights and freedom of speech, to name a few — and tried to answer the question of how the Supreme Court might rule on these hot-button political issues, with an eye toward reversing the gains progressives had made with the liberal Warren court. Of course, as we now know, conservatives mostly won the battle to reshape the judiciary. The appointments of Justices Antonin Scalia, Samuel Alito and John Roberts by the first and second Bush administrations — as well as the shift to appointing more conservative judges in the lower courts, even under President Clinton, have created a judiciary well-stocked with judges who believe in what they call “originalism” or “textualism.” In other words, the Constitution does not evolve, and can only be interpreted through a narrow framework based on the presumed intent of the framers. Scalia is the most vocal justice advocating this view — in and out of his written opinions. In an interview he gave last year, he made it clear where he stands: “My Constitution is not living. It is dead.” According to him, it can only be interpreted in light of the intent of the framers back in the late 18th century. “Whatever they understood then is, in my view, the meaning.” One of the most recent decisions by the court illustrates how this view is applied. In District Attorney’s Office v. Osborne, the court was asked to decide whether a convicted criminal had a right to access DNA evidence that could be used to exonerate himself. Writing for the majority, Roberts ruled that such convicts did not have a constitutional right, in part because “the asserted right to access DNA evidence is unrooted in history or tradition.” It goes without saying that the framers could not have expressly provided for a right to access DNA evidence, because DNA was unknown to science until almost 200 years later. But does that necessarily mean that the framers’ intent was to preclude the possibility that the right to some future form of scientific evidence is guaranteed by the Constitution?
Or, as progressive scholars would argue, do constitutional rights evolve alongside scientific advances? These days, like the ancient Jews returning from exile in Babylon, left-leaning constitutional scholars are seizing on the chance presented by the election of Barack Obama to bring the Constitution back from the dead, so to speak. A new book compiles the essays of some of these scholars. “The Constitution in 2020,” edited by Yale law professors Jack Balkin and Reva Siegel, bills itself as a “blueprint for implementing a more progressive vision of constitutional law in the years ahead.” The book is the product of a 2005 conference sponsored by the Open Society Institute and the American Constitution Society held at Yale Law School. There, progressive scholars took a page from conservatives by modeling their debate on the Reagan white paper. Essays from constitutional scholars — including some linked to the Obama administration — address many of the same hot-button issues, along with a few new ones like domestic wiretapping, gay marriage and Internet technology. The authors argue that it is time to reconsider “defensive modes of reasoning” applied to rebutting originalism. Such defensive arguments include identifying the ways in which conservative jurists have selectively applied originalism and hypocritically ignored it when convenient, pointing out the fundamental disagreements that the framers themselves had, or disputing what the framers actually believed based on often scant historical evidence. Instead, the authors of “The Constitution in 2020” focus on a more proactive effort to breathe life back into the Constitution. To that end, they put forward the progressive counter-argument to originalism, which they call “Democratic Constitutionalism.” Democratic Constitutionalism, they argue, is a way to look at the Constitution that starts with the premise that the framers not only did not expect their interpretation to be the one and only law, but in fact purposefully designed the Constitution to evolve along with the American citizenry.
In a sense, the Constitution is not a received book of wisdom to be consulted for precise guidance, but rather a sort of debating ground within which citizens can resolve their differences. “Paradoxically,” they write, “the possibility of disagreement about the Constitution’s meaning preserves constitutional authority, because it enables persons of very different convictions to view the Constitution as expressing their most fundamental commitments and to regard the Constitution as foundational law.” If this sounds remarkably similar to Obama’s call for “a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had,” perhaps that’s no coincidence. With the
appointment of Sotomayor looking like a more or less foregone conclusion, and the possibility that Obama will have the opportunity to appoint at least a few more justices to the court in the next four (or dare progressives hope, eight) years, the metaphors of Democratic Constitutionalism may one day overtake those of originalism. In the meantime, maybe progressives and conservatives can agree on a Constitution that is neither dead nor living. In horror stories, they call that “undead.” But who wants to think of the Constitution as a mindless zombie? Matt Valenti is an associate at the Lawton Law Firm in San Diego. He can be reached at mvalenti@lawtonlaw.com.