An Evening With Justice Thomas

Earlier this evening, I attended a two-hour dinner event at the Heritage Foundation with Justice Clarence Thomas, his wife Virginia, and a small number of other bloggers and New Media members. It confirmed for me that the media has never gotten a grasp of the man under the robes, possibly because they have not spent even the small amount of time with him that we did tonight and that Steve Kroft did with his 60 Minutes interview — and they have missed a real story from that failure. And while the nominal reason for the evening was his book launch — and we each received autographed copies — it turned into a wide-ranging conversation that had little to do with the book.
The evening started with Justice Thomas greeting us, taking pictures and chatting us up a bit. He asked me what I wrote about at Captain’s Quarters, and I replied, “Just about anything — politics, culture, foreign policy, and Notre Dame football,” at which he let loose his unique gust of laughter. “Notre Dame football?” he asked incredulously. “You’d better stick with foreign policy this year!” (Obviously, his wisdom came through immediately.) The twenty or so people who attended the dinner all had a similar experience; Justice Thomas made a great effort to put us at ease, which he did all night long.
He told us that he had deliberately wanted to spend the first day of his book launch with New Media journalists, noting specifically that he felt good about avoiding the Supreme Court press on the occasion. Thomas explained that he wished we’d been around in 1991, that we could have made sure that the facts of the case came to light. We could have worked around the mainstream media narrative, he told us, and stated several times that he was very impressed with the work we did.
The book represents his effort to reach people through his life story, Thomas explained. He has now reached a point in his life where he wants to let go of some tasks, such as travel and outreach efforts which have taken up most of his spare time from the Court. He has tired of the grind and wants to spend more time with his family. He loves his work on the Court, however, and sees himself remaining on the court for the rest of his life. In fact, Bill Kristol teased him about running for President, and I believe his exact words were, “Oh, hell no.”
Thomas had that kind of blunt speaking style, but without any rancor or bitterness. He came across as a man who had nothing left to prove and no criticisms to answer. In fact, Thomas mentioned that he has never had any unpleasantness in his personal appearances. A couple of times at universities, faculty members have walked out on him — “it’s always the faculty and never the students,” he emphasized — and said, “Whoop-de-doo! Cowards run. It’s what they do.”
He got perhaps his biggest laugh when answering one of my questions. I had asked him if he agreed that some justices have “grown” on the bench, without being specific, although Kristol encouraged him to get very specific. Thomas demurred on the specificity, but took some time to give a thoughtful answer. He agreed that the phenomenon exists, and that he sees it as a pressure of incentives and disincentives. Some justices worried about how law schools and other elites will perceive them, and begin to develop opinions with an eye to prestigious invitations and awards — and the punishing lack of same if they do not evolve towards the accepted wisdom of academics. “I wouldn’t get an invitation from Columbia University unless I was a Middle East dictator with nuclear weapons,” he gave as an example, again with his trademark booming laugh.
My lasting impression of Clarence Thomas is this: he is his own man, and he is beholden to no one. With that, he has the confidence and self-satisfaction that allows him to be engaging, gracious, honest, and open. That the media and a good part of the nation could have missed this amazing and impressive man should anger and sadden the American populace. I will not ever forget the dichotomy between the public image of Clarence Thomas and the real human being I met tonight.
UPDATE: Other bloggers have started posting about the meeting. Kate O’Beirne has a post up at The Corner, and my friend Paul Mirengoff has his remarks at Power Line. Be sure to read these — we have all keyed on different aspects of the evening.

The Jurors Of La-La Land

Let’s take a scenario that could come from a badly-written murder mystery. A man with a history of threatening women with handguns walks out of his house, blood on his clothes, holding a gun, and tells his driver, “I think I may have killed someone.” Inside the house, the body of a woman the man just met at a nightclub lies slumped in a chair, dead from a gunshot wound to the mouth. When police arrive, the gun somehow has ended up under the dead woman’s ankle, and the man tells the investigators that the woman grew despondent and killed herself — with his gun, despite never having been in the house before.
Think it takes Sherlock Holmes to solve that mystery? It does if the killing takes place in Los Angeles and involves a celebrity:

The murder trial of Phil Spector ended today with the jury unable to decide if the legendary music producer killed an actress he had known for only a few hours before her body was discovered in the foyer of his Alhambra mansion.
On its 12th day of deliberations, the jury of nine men and three women told Superior Court Judge Larry Paul Fidler that it could not reach a verdict and was split 10 to 2 after six ballots. The majority position was not given in open court, but jurors afterward said 10 favored conviction.
The final count was a shift from the earlier deadlock of 7 to 5.
The jurors were asked by the judge if there was any hope of reaching a verdict. Each “no,” dropped like an anchor into the hushed downtown Los Angeles courtroom where the often trembling Spector, 67, has been on trial since the end of April.

When I was in the Los Angeles area last week, I warned friends and family that a Los Angeles jury would not convict a celebrity, not even a second-rate star like Phil Spector. It didn’t give me much pleasure to say it, and even less to be proven correct. However, when it comes to celebrities, juries in LA throw common sense out the window and bend over backwards to find reasons to acquit.
At least this jury just hung. It didn’t acquit Spector, like LA juries have done with OJ Simpson, Michael Jackson, and Robert Blake. The district attorney has the option to retry the case, and the DA’s spokesperson has confirmed they will refile charges immediately. There remains some small chance that Lana Clarkson’s family can see a measure of justice.
The evidence and the circumstances both point to Spector’s obvious guilt. Five women testified that Spector had held guns to their heads, threatening to kill them if they left. Nine others were blocked from testifying by the judge, who felt the jury had gotten the point. The gun belonged to Spector. His driver testified to his statement, and also that Spector had the gun in his hand before the police arrived, which strongly indicated that Spector had manipulated the crime scene. He had blood on his clothes, a spatter pattern that showed he was close to the shooting when it occurred.
So what kept two Los Angeles jurors from convicting Spector? One complained that the prosecution never provided a psychological profile of the victim to rebut the defense’s claim that she committed suicide. Clarkson, who had to be cajoled into going to Spector’s home in the first place, supposedly was so despondent that she opted to commit suicide in someone else’s home, a place she had never before been, and supposedly figured out where to find Spector’s gun. They discounted the driver’s testimony because he’s Brazilian, and the fountain was too loud outside, even though the driver’s story has remained consistent all along.
This should demonstrate the difference between reasonable doubt and irrational doubt. It also shows that celebrities get a different brand of justice than everyone else in LA. It’s gone beyond coincidence to a pattern.

The Trinity Of Originalism

Conservatives often argue that they support originalism in judicial temperament. That term has fallen a little out of use in favor of judicial modesty, as expressed by Chief Justice John Roberts during his confirmation hearing. Others use “strict construction” instead, which, strictly speaking, is not synonymous, but prefers a strict textual reading rather than flexible application.
However, David Schraub at The Debate Link has delved further into originalism to discover three distinct lines of thought within that philosophy — and some aspects in each contradict the others:

Nonetheless, some folk do at least purport to assign originalism some special interpretative value. Unfortunately, many of them seem to have but a weak grasp of what originalism actually entails. For one, they often blend “originalism” and “textualism”, when the two are actually very different things and often radically opposed to each other. But in this post specifically, I’m going to try and deal with the fact that the unitary category “originalism” actually is splintered into at least three different interpretative approaches, ones that have some commonalities but have important differences as well. The three are “original intent”, “original meaning”, and “original understanding”, and at the very least someone who claims to be an “originalist” needs to clarify which of the three schools they are an adherent to.

Schraub does a good job in explaining each of the three categories in lay language, and it’s well worth a read. I found myself generally rejecting a complete agreement with any of the three tracks he describes, although I probably had more sympathy with original understanding than the other two. After all, when we look at the language used in the Constitution, we would hope to follow what the founders understood they had created, rather than an interpretation from an entirely different context.
However, the entire worthy exercise that Schraub creates gave me even more appreciation for a strict textual reading of the Constitution, as well as laws in general. Trying to determine the intent of a law leads automatically to interpretation. As Schraub points out, once one acknowledges a need to interpret law rather than rely on the obvious textual meaning, no matter how limiting that might be, then there is no longer any nonpartisan reality to law or legal philosophy. One drifts from one philosophy to another depending on the issue and the allies one has on each.
Strict construction rejects interpretation. If the Constitution doesn’t directly address an issue, then the legislatures at the state and federal levels have to address the issue instead. If Congress (as an example) writes a law poorly, it’s not up to the courts to rewrite it. The FISA court rejection of the warrantless access of the NSA to international calls passing through American switches is a good, if uncomfortable, case in point; the court did the right thing by forcing Congress to take responsibility for the dated obstacle their law created. If courts did that on a regular basis, it would force politicians to set policy through consensus rather than having it imposed by fiat by unelected and unaccountable judges and justices.
I’d like to hear from David whether he supports any of the originalist philosophies, and why or why not, in a follow-up post.

Southwick Nomination Reported To Full Senate

The Senate Judiciary Committee finally voted to recommend confirmation of Judge Leslie Southwick to the appellate court this afternoon, on a 10-9 vote where Dianne Feinstein crossed the party line. Mitch McConnell’s office sent out the following statement:

“With today’s vote to send Judge Southwick’s nomination to the Fifth Circuit Court of Appeals to the full Senate, the Judiciary Committee took a step forward in ensuring we are able to confirm qualified judges to our nation’s courts. Judge Southwick is an outstanding jurist, and a bi-partisan majority judged him on his record of service.
“Judge Southwick, an Iraq war veteran, is superbly fit to continue serving his country, this time on the Fifth Circuit. His colleagues know this, as do his home-state senators. The American Bar Association knows this; it has twice given him its highest rating, ‘well-qualified.’ Even Democrats on the Judiciary Committee know this; just last fall all of them—again, all of them—looked at his record and approved him for a lifetime position on the federal bench. With today’s bi-partisan committee vote for Judge Southwick’s nomination, the full Senate should now move forward to his consideration on the Senate floor.”

Southwick can thank McConnell for this progress. Frustrated at the way Democrats reneged on their promise to move judicial nominations, McConnell took the unusual step of offering a sense-of-the-Senate resolution on Southwick’s nomination, in order to embarrass Pat Leahy and show that he has majority support in the full Senate. Leahy added Southwick to the agenda, not without a lot of grumbling about McConnell’s parliamentary tactics.
This is a rare bit of good news for the Bush administration. Southwick has defended his country and served well on the bench, and deserves confirmation. Thankfully, the Senate can get at least this much accomplished.
UPDATE: Be sure to read this post by the Generalissimo, Duane Patterson. Apparently, Chuck Schumer almost swallowed his face. He also points out that if Harry Reid tries to stuff the confirmation vote, he’ll find comity at a microscopic level.

McConnell To Force Consideration Of Southwick

A source on Capitol Hill tells me that Senate Minority Leader Mitch McConnell plans to force consideration of Judge Leslie Southwick’s nomination to the appellate court in the next few minutes. Stay tuned!
UPDATE: It looks like the debate on this has already started. Pat Leahy is arguing that the Republicans have not asked him to put Southwick’s nomination on the agenda, but that he has done so for tomorrow anyway. He says Republicans “pocket vetoed” 61 Clinton administration appointees, and used one of them — unnamed — to accuse them of racism.
UPDATE II: McConnell introduced an amendment asking for the sense of the Senate on Southwick’s nomination. McConnell apparently wants to show that Southwick would gain a majority for his confirmation on the Senate floor.

So What’s New?

Senator Chuck Schumer got quite a reaction from his announcement that he would fight any new Supreme Court nominee from George Bush. Waggling his finger into the camera, he accused Bush of duping him while somehow also accusing Bush of being a man of his word:

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”
“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” …
“There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee. …
“When a president says he wants to nominate justices in the mold of [Antonin] Scalia and [Clarence] Thomas,” Schumer said, “believe him.”

Let’s break this down carefully. Schumer understood that George Bush got elected and re-elected partly on the basis of the kind of judges he would nominate for the federal bench. During both elections, Schumer acknowledges that Bush promised to nominate judges in the tradition of Scalia and Thomas. Bush appointed two justices to Supreme Court, and when they turned out to be in the tradition of Scalia and Thomas, Schumer pronounces himself “duped”.
Apparently Chuck isn’t the brightest bulb on the Christmas tree.
This isn’t even a new declaration from the senior Senator from New York. He voted against both Alito and Roberts in the confirmation hearings in the Judiciary Committee, and he railed against both during the questioning. He’s been talking obstruction since Bush started nominating judges to the federal bench. The only change is that the Democrats now have a thin majority in the Senate.
Elections have consequences — in both branches. The Supreme Court (and the federal bench in general) reflects the voter choice for President, but in modern times, it’s affected by the voter choice for the Senate. Gone are the days when Bush could count on clear sailing for his nominees, and he has to now work with the Democrats to get judicial nominees acceptable enough to all sides to get confirmed. That may not be how the system should work, but that’s how it’s going to be, and both branches will be better off by realizing it sooner than later.
In the meantime, I say give Schumer all of the airtime he wants. I can’t imagine that Democrats will win many converts by declaring the kind of stupidity to which Schumer admits in this statement.

Promises, Promises

The Democrats made a lot of promises in the last electoral cycle, most of which they have yet to fulfill: serious earmark reform, action on a long list of legislative priorities, ending the power of lobbyists, and so on. Not only have voters learn to live with bitter disappointment from the worst Do-Nothing Congress in decades, but even Arlen Specter has been surprised by the level of mendacity by the opposition. The ranking member of the Judiciary Committee, who has served as a moderate enabler on some of the Democratic attacks on the administration, expressed his frustration about broken promises on judicial confirmations, which have ground to a halt:

Specter has accused Senate Majority Leader Harry Reid (D-Nev.) and Senate Judiciary Chairman Patrick Leahy (D-Vt.) of breaking promises they made regarding Leslie Southwick, President Bush’s pick for the 5th Circuit Court of Appeals.
Specter aired his grievance with Reid and Leahy during a private meeting with leading conservative activists late Tuesday afternoon. Specter told those assembled that he was prepared to battle Democrats and asked if they also had an appetite for a fight, according to several people who attended the meeting. The activists assured Specter that they were eager to confront the Democrats on Southwick. …
Republican discontent over the progress of Southwick’s nomination reached a boiling point Tuesday because early in the day Reid told Sen. Thad Cochran (R-Miss.), Southwick’s chief advocate in the Senate, that the nomination had no hope of confirmation, according to GOP sources.

Reid stabbed Specter in the back by giving Leahy the green light to torpedo Southwick. Russ Feingold objected to a voice vote in the Judiciary Committee, and the nomination stalled there without a vote. Specter insists that the Democrats agreed to allow Southwick to have a vote on confirmation by the full Senate, and now they have used a parliamentary trick on him to derail a confirmation vote Specter thought he could deliver.
Now Specter wants conservative activists to start generating heat and outrage over this betrayal. That makes sense, but Specter’s the last man to stand in front of conservatives and demand satisfaction for a betrayal. Many think Specter betrayed them more than once over judges, and Specter never had any fondness for conservative activists inserting themselves into the confirmation debate before now. In fact, he has been rather dismissive of grassroots support for specific nominees.
Apparently, it’s different when it’s his ox being gored. What a shock!
The case against Southwick seems rather poor in any case. The Democrats have tried to scotch the nomination because he joined a majority ruling upholding custody of an eight-year-old boy to his father, rather than his lesbian mother, which used the word “homosexual” in his opinion rather than the word “gay”. He also ruled with the majority in reinstating a fired state employee who used a racial epithet at work. He didn’t write either opinion, and no one argues that these decisions didn’t comply with the law. The ABA unanimously gave Southwick its highest rating.
Democrats want to play politics with judicial confirmations — again. They have more power to do so now that they have the majority. A failure to recommend confirmation from the committee does not equate to a filibuster, however, and the Republicans did the same thing to some of Bill Clinton’s nominees. The difference here is that Specter got his feelings hurt, and now wants conservatives to fight his battles for him when two years ago he had no use for us whatsoever.
We should champion Southwick, and we should tell Specter to pound sand.

Court Reverses Anna Diggs Taylor

CQ readers will recall the decision by Detroit federal judge Anna Diggs Taylor that ruled Bush’s warrantless surveillance of international communications illegal and demanded a cessation of the NSA’s activities in this program last fall. At the time, I argued that her reasoning was flawed, especially regarding the legal standing of the plaintiffs. Today the appellate court agreed, directing Taylor to dismiss the charges:

A federal appeals court Friday ordered the dismissal of a lawsuit challenging President Bush’s domestic spying program, saying the plaintiffs had no standing to sue.
The 2-1 ruling by the 6th U.S. Circuit Court of Appeals panel vacated a 2006 order by a lower court in Detroit, which had found the post-Sept. 11 warrantless surveillance aimed at uncovering terrorist activity to be unconstitutional, violating rights to privacy and free speech and the separation of powers.
U.S. Circuit Judge Julia Smith Gibbons, one of the two Republican appointees who ruled against the plaintiffs, said they failed to show they were subject to the surveillance and therefore do not have standing for their claims.
U.S. Circuit Judge Ronald Lee Gilman, a Democratic appointee, disagreed, saying he felt the plaintiffs were within their rights to sue and that it was clear to him that the surveillance program violated the Foreign Intelligence Surveillance Act of 1978.

The argument that allowed Taylor to approve the standing of the defendants was the novel supposition that the NSA program violated the First Amendment as well as the Fourth. The ACLU and other plaintiffs argued that the existence of the program had already chilled free speech, forcing the complainants to restrain their speech because of their knowledge of the surveillance. Otherwise, the plaintiffs would have to prove that they had been surveilled as a result of the program and had suffered an actual and provable violation of their Fourth Amendment rights.
Thankfully, the court threw out this novel and dangerous argument. Had it succeeded, anyone could file a lawsuit on the basis of imaginary intimidation to speech, especially as it relates to law enforcement and counter-terrorism efforts. Any program would have been vulnerable to harrassing lawsuits, regardless of their legality and efficacy.
Instead, the propensity for filing lawsuits has met an all-to-rare rebuke from the courts, and rightly so.

Court Ruling Offers Paradigm Shift, Not All Buying It

The Roberts court made its first stamp on the volatile area of race relations yesterday in ruling that most state education plans that considers race as a basis of assignment are unconstitutional. Critics have howled that the court has thrown back desegregation efforts by decades, while supporters wonder why it took so long for a court to apply the Fourteenth Amendment.
There are two issues here that compete with each other in an ironic manner. The American people want a color-blind society, but the abject failure of the federal government to enforce the 14th Amendment for 100 years created the problems we face now. At Heading Right, I take a look at the competing interests, and why government intervention of the kind ruled unconstitutional yesterday hasn’t delivered — and what direction we should try next. (via Memeorandum)

No Military Detention For Legal Residents Of US

The Fourth Circuit Court of Appeals ruled yesterday that the military cannot detain people who have legal residence in the US for crimes committed here, even if those crimes include acting as a foreign agent in service to an enemy at war. Instead, the divided ruling instructs, the government must transfer custody of Ali al-Marri to civilian authority and provide the normal due process of criminal prosecution for his alleged crimes (via Memeorandum):

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely. The ruling was a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.
The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation. …
The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

The case presented the courts with dire consequences on both sides. If executive power remained completely unchecked, any non-citizen could have been held without trial indefinitely simply by designating him an enemy combatant. However, if the ability to hold foreign sleeper agents gets removed, it would force the government to hold open trials in criminal courts to keep these agents from returning to their efforts to commit acts of terrorism and sabotage against us all.
In this case, the government created its own complicating factors. In four years of detention, the military never bothered to conduct a tribunal to determine al-Marri’s status. Even if the panel had any sympathy towards the government’s position, the lack of even this process would likely have convinced them of bad faith on behalf of the administration. And really, is there any excuse for a four-year delay in that determination?
However, the panel overreached in their decision yesterday, even if they had some rational reasons for doing so. Congress specifically took jurisdiction on these cases away from the federal court system and gave it to the military court system in its place. The Department of Justice has asked for an en banc review of this decision, and without doubt the Supreme Court will hear an appeal from whichever side loses at that stage. At issue will be whether the will of Congress violated the Constitution — and it did not.
As often remarked, the Constitution is not a suicide pact. It does not require us to allow foreign terrorists in wartime access to the criminal court system. That sense of habeas corpus has never been a feature of any wartime American security effort. Foreign agents and spies have been held without recourse to the federal courts throughout our history, and the Republic still stands.