WaPo: Obama Criticized as Too Cautious, Slow on Judicial Posts. I think it’s Just Right!

From the Washington Post, Obama Criticized as Too Cautious, Slow on Judicial Posts

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration’s reluctance to fight, arguing that Obama’s emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names and to the Senate in the same period that Obama has forwarded 23. Currently, about 90 judicial seats — about 10 percent of the total — remain vacant in appeals and district courts.

President Obama, take your time. Relish in your Nobel Peace Prize. Go make some YouTube videos. Maybe take the First Lady to some more Broadway shows in New York. Play some basketball. Help the kids in the White House Garden. Play with your new puppy. Whatever takes your mind off making judicial appointments, go ahead.  Like that special bowl of porridge from Goldilocks and the Three Bears, I think your pace is just right!

Note to future bar takers: DON’T OVER STUDY! I didn’t, and I still passed.

As someone who just passed the Virginia Bar, I will take a moment to stand on a soap box and rant.

If you are taking the Bar next year, DO NOT OVER STUDY!

This past summer I worked 30 hours a week at DoD General Counsel.  I took Bar/Bri every morning for 4 hours or so. That’s it. I just paid attention in class, and skimmed the conviser at night. I did not do any of the practice questions, practice essays, or any of the other garbage Bar/Bri told me to do. If you do everything Bar/Bri tells you to do, you will be stuck doing 12-14 hours of work a day. Totally uncessary.

The last 10 days I crammed 18 hours a day and did all 20 topics, starting with the topics most frequently tested. Every day I did 20 mulitple choice, and 1-2 essays per topic.  Here was my schedule.

My Study Plan

[/caption]My Goal? No Fail! Mission Accomplished. I keep this schedule taped to my bookshelf as a reminder of the purgatory I went through.

Bar/Bri’s job is to scare you to death so you study so much you can’t possibly fail. The more people pass, the better Bar/Bri looks, and the more they can charge. Those essays they grade? They are graded much tougher than the actual Bar. They do it to scare you. Just do the absolute minimum and you’ll be fine.

Now I know you will all ignore my advice and work yourself to deaths. And I’m sure some commenters will say you have to study. But if you did marginally well in law school, and can follow and memorize a few basic concepts, you’re fine.

Update: On the advice of a friend who recently pass the Virginia Bar, I issue the follow disclaimer. WARNING! Do not try this at home. If you take my advice, and do not study, and fail the bar, that’s your problem. Don’t sue me.  There I said it. If you are worried about passing, study hard.

I PASSED THE VIRGINIA BAR!

I am now a member of the largest cartel in Virginia. As a friend said, rent seek away!

Congrats to my fellow confreres (h/t to professor k for that cool word).

http://www.vbbe.state.va.us/results.html

Interracial Couple Denied Marriage License By Louisiana Judge.

I never read the Huffington Post, but I saw this tweet from @NanAron and was shocked.

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I don’t do interracial marriages because I don’t want to put children in a situation they didn’t bring on themselves,” Bardwell said. “In my heart, I feel the children will later suffer.”

“I do ceremonies for black couples right here in my house,” Bardwell said. “My main concern is for the children.”

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

At least he cares about the children.

If he does an interracial marriage for one couple, he must do the same for all, he said.

“I try to treat everyone equally,” he said.

At least he tries to treat everyone equally.

Wow. Loving v. Virginia from 1967 is still the Supreme Law of the land last time I checked. This Judge may want to read up on some of these cases.

Race and Admissions to College: Asians Face Discrimination in Application Process?

From the Daily Princetonian (h/t instapundit):

According to the data, not all races are considered equal in the college admissions game. Of students applying to private colleges in 1997, African-American applicants with SAT scores of 1150 had the same chances of being accepted as white applicants with 1460s and Asian applicants with perfect 1600s. The results of the study come three years after Jian Li, a rejected Princeton applicant, filed a complaint with the U.S. Department of Education’s Office for Civil Rights. He alleged in the complaint that he had been discriminated against based on his race when he was denied admission to the University.

Espenshade also found in his study that low-income minorities, but not necessarily low-income white students, had an edge in admissions.

Justice O’Connors Grutter countdown is still ticking, but since racial discrimination still exists, schools are allowed to consider diversity as a compelling interest, along with other factors. So looking at SAT scores alone isn’t enough. What about the “plus” factors?

The research discusses these factors, and more after the jump.

Do Rights Mean Different Things in Different Places? My Friend’s Harv.L.Rev. Note Says Yes, and Persuades Me

This morning I blogged, and asked whether the Constitution has a geography clause, and whether  it was correct that constitutional liberties should mean different things in different places. I argued that the Fourth Amendment means the same thing in Bismarck, North Dakota, as it does in Chicago. So why should First and Second Amendment rights mean different things in different places.

But am I right about the Fourth Amendment?

A good friend pointed me to a Harvard Law Review note he published.

Check out the unsigned note THE FOURTH AMENDMENT’S THIRD WAY. The author notes:

This Note confronts a “fundamental question about the fourth
amendment” that lies beneath all of its doctrinal puzzles, namely, “what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains.” 4 It does so, in particular, by examining the relationship between the Fourth Amendment and state law. This Note argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive
legal content into the vague constitutional text and reconciles the tension between the Amendment’s two clauses.5 It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.

Among the numerous potential sources of legal content for the
Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.

From a textual perspective, dynamic incorporation offers clarity and common sense. The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional. Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests. Rather, what is reasonable is that which is lawful under state law; inversely, what is unreasonable is that which is unlawful under state law. This interpretation is sensible, given that the “English common-law tradition to which the [American] revolutionaries appealed often tied legality to ‘reasonableness.’”40

How would this work in practice?

First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.42 If the answer is yes — for example, if the search would have been actionable trespass — then the search would violate the Fourth Amendment. If the answer is no — for example, if common law decisions of
the state’s judiciary had established an exception or defense to the trespass — then the actions would be constitutional.

Second, searches or seizures conducted pursuant to a warrant
would be constitutional provided that the warrant had been validly issued. Ancillary questions concerning the procedures for actions taken under a warrant, such as the applicability of the knock-and-announce requirement,43 obviously cannot be tested under state law because private actors do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.44 Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach. This constitutes a gap in the method, and answers would have to be sought elsewhere.45

I like the idea, but I do not think the dynamic incorporation approach would apply to the First and Second amendment, from a textualist perspective, in the way the note argues it applies to the Fourth Amendment.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As the note discusses, the magic word of reasonableness lends itself well to a reference to state law and dynamic incorporation. I agree thus far.

But I do not see the First and Second amendments, from a textualist perspective, being susceptible to a dynamic incorporation method referring to state law.

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Second Amendment (got this one memorized by now):

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

These rights do not seem to allow a referent to state law to understand the boundary of the right, whereas the Fourth Amendment speaks of reasonableness.

So I will modify my original thesis. A right can mean different things in different places if the text of the amendment lends itself to such an analysis.

On further reflection, the “contemporary community standards” makes no sense under the First Amendment as written. The text of the amendment would foreclose any referent to state or local law. Same for the Second Amendment. These tests seem largely untenable.

I definitely plan on writing about this in the future. Stay tuned.

Justice Ginsburg Hospitalized last night, released this morning.

SCOTUSBlog Reports:

Supreme Court Justice Ruth Bader Ginsburg spent a night in the hospital Wednesday after experiencing an “adverse reaction” to medication, the Supreme Court reported Thursday morning.  She had boarded a plane that was to take her to London where she and other members of the Court were to attend opening ceremonies this week for Britain’s new Supreme Court.

According to the Court’s statement: “Prior to the plane taking off, the Justice experienced extreme drowsiness causing her to fall from her seat.  Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution.”  After an examination, “she was found to be in stable health,” it added. Held overnight for observation, she was released Thursday morning, the statement said.

This marked the second time in recent days that the 76-year-old Justice was hospitalized after reacting to medication.  Late in September, she stayed overnight after feeling ill an hour after receiving an injection for an iron deficiency.  She returned to work the following day.

In Wednesday’s episode, the Court said Thursday, Justice Ginsburg experienced “an apparent adverse reaction to a sleeping aid combined with cold medication she took immediately after boarding” the overnight flight.  At the hospital later, “doctors attributed her symptoms to a reaction caused by the combination of a prescription sleeping aid and an over-the-counter cold medication,” the statement said.

Justice Stephen G. Breyer was also on the sane fight, but he rescheduled after Justice Ginsburg had fallen ill.  He took a later flight.  Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia are also attending the ceremonies in Britain.  Because of the time demands for flights and the schedule for the ceremonies, Justice Ginsburg’s hospital stay apparently will prevent her from attending.

Jim Lingdren at Volokh Reports:

MSNBC is reporting that Justice Ruth Bader Ginsburg was hospitalized after she fell out of her seat in an airplane before takeoff. “Extreme drowsiness” from a combination of prescription sleeping pills and OTC cold medicine was blamed.

Our prayers are with Justice Ginsburg.

New Article- Does Original Exclusion in Antebellum South Weaken Originalist Jurisprudence?

Professor Mark Stein of Harvard Law posts an interesting article on SSRN. H/T Legal Theory Blog.

In this article, I consider how the interpretation of today’s Constitution should be affected by the antebellum Constitution’s accommodation with slavery and by the limitation of the franchise, at the time of the antebellum Constitution, to a small minority of the adult population. I refer to these defects in the antebellum Constitution and the political system that produced it as “original exclusions.”

In view of these original exclusions, the mere ratification of provisions of the antebellum Constitution cannot imbue them with sufficient moral legitimacy to override contemporary statutes. Thus, a justification for originalism based on notions of popular sovereignty must fail. The original exclusions also straightforwardly defeat the argument that originalism achieves desirable results because the Constitution was produced under supermajoritarian voting rules. In fact, as the Constitution is so hard to amend, and as there has been moral progress since the time of the antebellum Constitution, it makes sense to assume that the original meaning of some remaining antebellum provisions is morally retrograde and undesirable.

The progressive elimination of the original exclusions was accomplished, in part, through nonoriginalist means and has increased the moral legitimacy of the Constitution. As the moral legitimacy of the Constitution derives, in part, from past nonoriginalism, future nonoriginalism should require less justification.

There are some cases in which the text or original meaning of a constitutional provision was plausibly affected by an original exclusion. There are also cases in which application of a constitutional provision specially affects a previously-excluded class. If one or both of these conditions apply, the originalist position becomes even weaker.

Most fundamentally, originalism is objectionable because it seeks to fix the meaning of antebellum provisions in the legal and political culture that produced the original exclusions.

In a nutshell, Stein argues that the Constitution in antebellum America yielded immoral results (Jim Crow, limited franchise, etc.). He labels these flaws “original exclusions.” Because this time period was marked with original exclusions, relying on originalism to understand the meaning of these constitutional provisions is flawed because it “seeks to fix the meaning of antebellum provisions in the legal and political culture that produced the original exclusions.”

This approach is just as applicable to antebellum America as to any period of American history. At every stage, the Constitution was ignored to yield immoral results. Think of the alien and sedition acts, segregation, exclusion of Japanese during WWII. If we ignore originalism whenever the contemporary politicians created immoral laws, originalism as a doctrine will cease to exist. Though this may be part of Stein’s intent.

Professor Solum’s reaction, after the jump. Definitely worth reading.

Does the Constitution have a Geography Clause? How can rights mean different things in different places?

If the Constitution is in fact the Supreme Law of the land, why should it mean different things in different places.

This concept is most prevalent in First Amendment jurisprudence where obscenity law considers “contemporary community standards.”  Something may be obscene in Bismarck, North Dakota, but not obscence in San Francisco, California based on some nebulous concept of local standards.

This is clearly correct under modern First Amendment Supreme Court jurisprudence, but is it correct constitutionally? Does the Constitution permit the rights of a citizen of North Dakota to free speech to differ from the rights of a Californian? Does this seem right.

The Government takes full advantage of these different standards, and frequently prosecute obscenity trials in more socially conservative areas. See this Volokh post on the Obama Administration shifting away from this tactic.

Another common application of this doctrine pervades gun control laws. Pundits frequently argue that Chicago needs different gun laws than Cheyenne. Candidate Obama frequently made this point on the campaign trail. Heller seems to adopt this notion. But why? Where in the Second Amendment is there a carve-out for local concerns.

Does the Fourth, Fifth, or Sixth Amendment mean something different in New York or Los Angeles? All other rights seem to be universal, except the First and Second Amendments. These are two of my favorite liberties, so this is troubling.

As an aside, it strikes me that one could make a plausible argument that the “contemporary community standards” test for obscenity violates the Equal Protection Clause to the extent that it necessarily results in different determinations of what is obscene, depending upon locale. Yes, I know that geographic location is not a suspect class, but I see no reason why it couldn’t be, especially when it results in rather arbitrary distinctions as to what is or is not criminal under Federal Law.

This is a topic I would like to develop further. Stay tuned.