Jack M. Balkin 's Recent Articles from LexMonitor

War, Time, and Law

jackbalkin@yahoo.com (Jack M. Balkin ) — Wed, 07 Jan 2009 01:52:57 GMT

This post is part of a project that seeks to unpack the concept of "wartime," and to illuminate the impact of assumptions about war’s temporality on our thinking about law and war. I began this thread last summer. Here are some additional thoughts about war, time, and law.

"Wartime" is important to American law, but as with other ways of categorizing time, we don’t tend to inquire about it. Wartime is treated as if it were a natural feature of our world. The impact of this way of categorizing time on our thinking goes unexamined.

In scholarship on law and war, time is seen as linear and episodic. There are two different kinds of time: wartime and peacetime. Historical progression consists of moving from one kind of time to another (from wartime to peacetime to wartime, etc.). Law is thought to vary depending on what time it is. The relationship between citizen and state, the scope of rights, the extent of government power depend on whether it is wartime or peacetime.

The idea that time is linear is often thought to be a natural and inevitable feature of time. Anthrop ologist Carol Greenhouse suggests that scholars tend to think of non-linear time as embedded in other cultures. Forms of time that are thought to flow from particular cultural contexts are often referred to as "social time." Social time is thought to be culturally constructed, as compared with linear time that is thought to exist in nature.

But even the linear time we think of as "natural" time has a history, and is understood within a cultural context. Linear time is also social time, Greenhouse argues. "The idea of time that has dominated public life in the West since the thirteenth century...came to Europe with Christianity," she writes. It included two ideas that "had long roots in Jewish and...Christian tradition: first, the origin of time in creation and, second, the end of time in a day of judgment. The linearity of time derives from the geometric connection between these two end points." Modern, secular understandings of time are often hazy about the nature of origins and endpoint, but retain this linearity. Once time is thought of as a progression from one point to another, other assumptions follow. "To speak of ‘linear time’ is to refer to the image of time as an irreversible progression of moments, yielding ordinal conceptions of past, present, and future as well as duration."

Emile Durkheim noted the difficulty in seeing the cultural nature of time. "We cannot conceive of time," he wrote, "except on condition of distinguishing its different moments." If we "try to represent what the notion of time would be without the processes by which we divide it, measure it or express it with objective signs, a time which is not a succession of years, months, weeks, days and hours! This is something nearly unthinkable." Yet, for Durkheim, Greenhouse explains, these "categories of thought are born in social, or collective, experience."

If linear time, like cyclical time, is social time, it does not follow that particular constructions of time have an absolute hold in discreet cultures. Instead, Greenhouse argues, competing conceptions of time overlap and compete for ascendancy. Initially, in the West, a linear understanding of time competed with indigenous European ideas that time was a pendulum, moving between binary oppositions (day/night, summer/winter). "If linear time dominates public life in the West, then, it is because its primary efficacy is in the construction and management of dominant social institutions, not because it is the only ‘kind’ of time that is culturally available. The meanings of linear time are inseparable from its cultural history of use."

The expansion of "clock time" and the introduction of the telegraph have been thought to introduce simultaneity. Benedict Anderson argues that once time was viewed as uniform and governed by the clock, time helped knit together a common sense of national identity. As Thomas M. Allen describes Anderson’s intervention, clock time "created a shared ‘simultaneity’ of experience that linked individuals together in an ‘imagined community’ moving together through time." The clock’s rationality drove other conceptions of time.

A newer literature on the history of time, however, comports with Greenhouse’s argument that the experience of time is heterogeneous. In new scholarship, as Allen describes it, social historians "have demonstrated empirically that changes in time consciousness cannot be explained as a story of progress from a more primitive to a more rational organization of time." This literature shows that

the homogeneity of time that supposedly results from the centrality of such instruments as clocks, watches, and calendars to modern life is only possible if technologies produce time by themselves....Once we begin to ask what people did with technologies of time, and why they wanted such technologies, the homogeneity of modern national time begins to shatter into myriad fragments of heterogeneous, local, and transient temporal cultures.

Heterogeneous temporalities do not drive people apart, Allen argues, but instead "are themselves the threads out of which the fabric of national belonging has long been woven."

The heterogeneity of time helps us to see that, in Allen’s words, time is not "a transhistorical phenomenon, an aspect of nature or product of technology existing outside of human society," but is "an historical artifact produced by human beings acting within specific historical circumstances." Allen argues for new scholarship on the relationship between time and the nation that "attend[s] to the recursive and dynamic interactions between these two terms."

Similarly, the relationship between war and time is complex. A more satisfactory understanding of war, time, and law must bring a cultural history of time into the history of law and war. This is the aim of my new project.

Crossposted from the Legal History Blog.

Further lessons on why structures matter

jackbalkin@yahoo.com (Jack M. Balkin ) — Tue, 06 Jan 2009 17:22:45 GMT

The farce currently underway in Springfield and DC can be traced, among other things, to the fact that Illinois, like most states, has rejected the "unitary executive." That is, various executive officials are elected independently of the governor and are in no way subject to control by the governor. Whatever one thinks of the "unitary executive" at the national level, no reasonable person can argue that it reflects some "American" approach to government, since it is the US government that is in fact the outlier. If Illinois did have a unitary executive, then presumably the governor could simply fire an insubordinate secretary of state who refused to sign the letter of appointment. (Or is the argument that the secretary could refuse to leave on the grounds that the unimpeached governor is no longer the "real governor" who has the authority to hire and fire members of his administration?)

In any event, a story in tomorrow's times on the Senate's refusal to accept Burris's creditials sets out the issue very clearly:

After reviewing the appointment letter presented by a representative of Gov. Rod R. Blagojevich, Nancy Erickson, the secretary of the Senate, found that the paperwork did not comply with Rule II of the Senate’s standing rules, which requires signatures of both the governor and the secretary of state.

The Illinois secretary of state, Jesse White, has refused to sign, saying the appointment is invalid because of the federal corruption investigation surrounding the governor and what prosecutors describe as his efforts to sell the Senate seat....

Given my own "constitutional protestantism," I rather like the fact that every public official is suddenly asserting the ability to decide on his or her own what are in fact quite interesting and complicated constitutional issues. That being said, I still don't understand how one of the Senate's standing rules can in effect give someone other than the governor the de facto ability to veto a gubernatorial appointment that meets all relevant state law requirements, in a context where the state official who refuses to co-sign appears to be violating the face of the relevant Illinois statute that imposes a duty to sign. I must say that I wish Sen. Reid had stood up to George W. Bush with the same vigor that he is standing up to the feckless Gov. B.

I happily concede that the Senate could reject the appointment if it had reason to believe that it was in fact procured through bribery or some other criminal misconduct. But, as everyone seems to concede, there is no such evidence. How important is it, incidentally, that the Governor is accused of trying to sell the seat? What if he were accused, instead, of spousal abuse or drunken driving? That would also discredit him in the eyes of most people. Would it also allow the secretary of state to refuse to sign the letter of appointment and the Senate to refuse to seat the senator-designate? Or is the specific misconduct important, so that he retains all other powers (until impeached) except appointing a senator to fill the vacancy?

UPDATE: I should note that the "reader" who informed me about the relevant Illinois law was Jeff Norman, who has in fact published two illuminating blogposts on the Huffington site discussing the matter.

The Art of SATergy

jackbalkin@yahoo.com (Jack M. Balkin ) — Tue, 06 Jan 2009 14:26:41 GMT

Crosspost from Freakonomics:

My son took the SSAT exam this past Saturday. And while I was sitting in the Choate athletic facility waiting for him to finish, I remembered that Avinash Dixit and Barry Nalebuff’s new book, The Art of Strategy, has a great example concerning standardized testing. Game theory is so powerful it can help you figure out the correct answer without even knowing what the question is.

Consider the following question for the GMAT (the test given to MBA applicants). Unfortunately, issues of copyright clearance have prevented us from reproducing the question, but that shouldn’t stop us.

Which of the following is the correct answer?

a) 4? sq. inches

b) 8? sq. inches

c) 16 sq. inches

d) 16? sq. inches

e) 32? sq. inches

O.K., we recognize that you’re at a bit of a disadvantage not having the question. Still, we think that by putting on your game-theory hat you can still figure it out.

Before reading their analysis, take a shot at trying to reason your way to the correct answer.

Here’s what they said:

The odd answer in the series is c. Since it is so different from the other answers, it is probably not right. The fact that the units are in square inches suggests an answer that has a perfect square in it, such as 4? or 16?.

This is a fine start and demonstrates good test-taking skills, but we haven’t really started to use game theory. Think of the game being played by the person writing the question. What is that person’s objective?

He or she wants people who understand the problem to get the answer right and those who don’t to get it wrong. Thus wrong answers have to be chosen carefully so as to be appealing to folks who don’t quite know the answer. For example, in response to the question: “How many feet are in a mile?” an answer of “Giraffe,” or even 16?, is unlikely to attract any takers.

Turning this around, imagine that 16 square inches really is the right answer. What kind of question might have 16 square inches as the answer but would lead someone to think 32? is right? Not many. People don’t often go around adding ? to answers for the fun of it. “Did you see my new car — it gets 10? miles to the gallon.” We think not. Hence we can truly rule out 16 as being the correct solution.

Let’s now turn to the two perfect squares, 4? and 16?. Assume for a moment that 16? square inches is the correct solution. The problem might have been: “What is the area of a circle with a radius of 4?” The correct formula for the area of a circle is ?r2. However, the person who didn’t quite remember the formula might have mixed it up with the formula for the circumference of a circle, 2?r. (Yes, we know that the circumference is in inches, not square inches, but the person making this mistake would be unlikely to recognize this issue.)

Note that if r = 4, then 2?r is 8?, and that would lead the person to the wrong answer of b. The person could also mix and match and use the formula 2?r2, and hence believe that 32? or e was the right answer. The person could leave off the ? and come up with 16 or c, or the person could forget to square the radius and simply use ?r as the area, leading to 4? or a. In summary, if 16? is the correct answer, then we can tell a plausible story about how each of the other answers might be chosen. They are all good wrong answers for the test maker.

What if 4? is the correct solution (so that r = 2)? Think now about the most common mistake: mixing up circumference with area. If the student used the wrong formula, 2?r, he or she would still get 4?, albeit with incorrect units. There is nothing worse, from a test maker’s perspective, than allowing the person to get the right answer for the wrong reason. Hence 4? would be a terrible right answer, as it would allow too many people who didn’t know what they were doing to get full credit.

At this point, we are done. We are confident that the right answer is 16?. And we are right. By thinking about the objective of the person writing the test, we can suss out the right answer, often without even seeing the question.

Now, we don’t recommend that you go about taking the GMAT and other tests without bothering to even look at the questions. We appreciate that if you are smart enough to go through this logic, you most likely know the formula for the area of a circle. But you never know. There will be cases where you don’t know the meaning of one of the answers or the material for the question wasn’t covered in your course. In those cases, thinking about the testing game may lead you to the right answer.

If you want a fun way to learn a ton of useful game theory, this is the book for you. How good is it? Steve Levitt has a blurb on the book saying it’s so good, he read it twice.

A constitutional morass?

jackbalkin@yahoo.com (Jack M. Balkin ) — Tue, 06 Jan 2009 03:46:18 GMT

I gather that the current argument being made by Harry Reid and others is that the Senate can reject Burris because of a Senate rule that requires that a state's secretary of state sign the certificate of appointment. The Illinois secretary of state has refused to do so, presumably as an act of personal civil disobedience inasmuch as no legal grounds have been offered. See, e.g., the following dispatch:

A spokesman for Illinois Secretary of State Jesse White (D) confirmed to Election Central that White knows he does not truly have the authority to stop the appointment of Roland Burris to the Senate, but he withheld his signature from it earlier today in order to make a statement. But the door does appear to be open to some legal ramifications.
"His feeling is we studied the constitution of Illinois, we looked at the statutes, and there was nothing there that said he had to sign the paperwork," said David Druker, White's press secretary.
"We don't believe he has the authority to hold up the appointment or veto it, to put it that way," Druker added. "How the U.S. Senate views the action, that would be for the U.S. Senate to determine."

Assuming that the Senate does have a rule requiring the secretary of state's signature, why wouldn't that violate the 17th Amendment by adding a "qualification" nowhere mentioned in the amendment? The relevant part of the Amendment reads as follows: "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." It appears that the Illinois legislature has long since passed a statute authorizing the governor to make an appointment, without mentioning anything about a veto right to be given the secretary of state. Or is the failure of Illinois to include a clause saying that "the secretary must sign a certificate" the equivalent of giving him/her a veto right, e.g., the equivalent of saying "the secretary is entitled to decide whether he/she approves of the governor's appointment and, if not, to refuse to sign the certificate?" [SEE UPDATE BELOW, WHICH SEEMS CONCLUSIVELY TO INVALIDATE ANY SUCH READING OF ILLINOIS LAW.] In any event, I do not see where the Senate believes it has the authority to define "the executive" of a state differently from the definition adopted by a state itself.

If one supports the refusal of the Illinois Secretary of State to sign a commission that is lawful on its face, then does this also suggest support for the proposition that the Attorney General could announce a refusal to enforce any laws signed post-arrest by the now-discredited Governor or that the head of the Illinois national guard should refuse to accept any orders by the person who I presume is the "commander-in-chief" of the guard unless it is federalized? If this were really an important issue, and not simply a bit of political entertainment about the relatively meaningless filling of a Senate seat, I think we could start speaking the language of "constitutional crisis" similar to that, say, of the Dorr Rebellion in Rhode Island in the 1840s. But, as Marx noted, first time tragedy, second time farce, so, for better or worse, it's only a "constitutional morass" and what Vermeule and Posner have labeled a "showdown."

UPDATE: A reader has sent me the following passage from Illinois law (15 ILCS 305/5) (from Ch. 124, par. 5):

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)

"Democracy" and "dictatorship"

jackbalkin@yahoo.com (Jack M. Balkin ) — Mon, 05 Jan 2009 12:56:39 GMT

There can be little doubt that Israel counts as a "democracy," certainly with regard to the majority Jewish population and even with regard to Israel's Arab citizens, who participate in elections and are able to elect some ethnic Arab represenatives. Certainly no other country in "the region" comes so close to meeting the standards of democratic rule. (I don't argue that free elections constitute a full description of "democracy," but they are certainly a necessary condition.) And, of course, Israel will be holding elections in February to select a new Knesset and, therefore, Prime Minister. I have expressed some preference for parliamentary systems over our own presidential system precisely because the former, on balance, offer more accountabilty.

That being said, it is also necessary to note that the debatable scope of the present war in Gaza, even if one accepts the view, as I do, that it was precipitated by the failure of Hamas to continue the truce and their decision to lob rockets into Israeli territory, has been decided upon by an Israeli government that is just as lame-duck as our own. Moreover, it is hard to escape the view that the most relevant decisionmakers are motivated by their deep (and altogether justifiable) desire to forestall the return to power of Benjamin Netenyahu and, therefore, determined to prove to his potential supporters that they are as willing to use military force, regardless of consequences to the Palestinians, as he presumably would be. It is hard for me otherwise to understand the decisions that Israeli leaders have made, given the foreseeable failure to eliminate Hamas as a political force in Gaza.

This may simply underscore the point that all political systems, including those we justifiably label as "democratic," contain within them aspects of "dictatorship" as well, in which decisions of life and death are made without prior approval by the demos. At least the Israeli leaders will indeed be submitting themselves to the judgment of their electorate, which is more than can be said for George W. Bush or Dick Cheney, who for 15 more days will be able to exercise whatever legal powers they possess secure in the knowledge that they will be not be accountable either to the electorate or, it appears, even the application of relevant federal statutes.

Far from continuing my standard critique of our Constitution, I confess that I see no magic solution to the problem of de-facto "dictatorial" aspects of modern government. Post-facto accountability is better than no accountability, etc., but we should always be aware of the awesome power we put in the hands of our political leaders based on little more than trust and confidence that they will use it wisely. The "rule of law" really is reduced, in important ways, to "the rule of a relatively small group of men and women" when situations are perceived as crises.

UPDATE: I note that the NYTimes has just posted a story, which will presumably be published in Monday's paper, titled "For Israel, Chance to Strike before an Ally Departs." Thus, according to the story, "Many Middle East experts say Israel timed its move against Hamas, which began with airstrikes on Dec. 27, 24 days before Mr. Bush leaves office, with the expectation of such backing in Washington. Israeli officials could not be certain that President-elect Barack Obama, despite past statements of sympathy for Israel’s right of self-defense, would match the Bush administration’s unconditional endorsement." If this is correct, and there is certainly no good reason to doubt it, then the responsiblity for the devastation in Gaza can be placed on our Constitution and the stupid hiatus between election and inauguration. Mr. Bush is neither gone nor forgotten, and lives are being lost as a result.

An Overlooked Aspect of the Judicial Pay Raise Debate

jackbalkin@yahoo.com (Jack M. Balkin ) — Sun, 04 Jan 2009 06:24:32 GMT

Chief Justice Roberts made the following (familiar) plea in his year-end report on the Federal Judiciary:

I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again—Congress must provide judicial compensation that keeps pace with inflation. Judges knew what the pay was when they answered the call of public service. But they did not know that Congress would steadily erode that pay in real terms by repeatedly failing over the years to provide even cost-of-living increases. Last year, Congress fell just short of enacting legislation, reported out of both House and Senate Committees on the Judiciary, that would have restored cost-of-living salary adjustments that judges have been denied in past years.

Let me begin this post by stating at the outset that it is my opinion that Chief Justice Roberts is on solid ground in requesting cost-of-living adjustments (COLAs) that would keep judicial salaries on pace with inflation. (As a side note, all pay raises are a one-way ratchet because Article III does not permit Congress to diminish judicial salaries, even if the country were to go through an extended period of deflation as some economists now predict.)

But lost in these annual pleas for a pay raise is the fact that federal judges are statutorily entitled to an enormously generous pension package--one that entitles them to at least their salary at the time of retirement for the rest of their lives. Today, all federal judges are permitted to earn pension benefits with full pay if they satisfy the rule of eighty, which permits them to take senior status or retire on a sliding scale of age or service, beginning at age sixty-five and fifteen years of service, and ending at age seventy with ten years of service. Pursuant to 28 U.S.C. s 371, a judge that completely retires from active service is entitled "to receive the salary that he or she was receiving when he or she was last in active service." Meanwhile, if a judge satisfies the certification requirements required for senior status, then "during the remainder of his or her lifetime, [he or she] continue[s] to receive the salary of the office," which includes any pay raises passed by Congress. The income earned by both senior and retired federal judges is not subject to FICA taxes or the income taxes of many states, which means that the real income of federal judges actually rises upon their departure from regular, active service.

For federal judges, retirement benefits comprise a significant portion of the income that they expect to earn during the remainder of their lifetimes. Constructing a very simple model, I estimated the present value of both salary and retirement benefits for a judge appointed at the age of 50 and electing full retirement at the age of 65 (when she is first eligible). In constructing the model, I presume no cost of living adjustments or pay raises and no taxes of any kind on income even during regular, active service. I also apply a generous 5% discount rate, use the life expectancy data of the Social Security Administration for a person who has reached the age of 50, and assume that my hypothetical circuit judge (with a current annual salary of $179,500) earns all of her income at the end of each calendar year (which is unrealistic but has the advantage of simplicity). The present value (at the time of appointment) of the salary for my hypothetical judge during regular, active service is $1,863,148.62, or about 68% of her total income after age 50. Meanwhile, the pension benefits, discounted to present value at the time of appointment, are worth $896,206.34, or about 32% of her total expected income after age 50. (My guess, incidentally, is that my model substantially underestimates the value of the retirement benefits because it assumes no COLAs or pay increases during the entirety of my hypothetical judge's career, no taxes on the income earned during regular, active service, and uses a discount rate that is much higher than the average rate of inflation.)

Moreover, federal judges are also permitted to take part in the government's thrift savings plan, which is comparable to a 401(k) plan in the private sector, and they enjoy employee benefits that are very similar to those available to other government employees. Charts released by the Administrative Office of the United States Courts, available here, compare the nominal pay of federal district judges to senior law school professors and law school deans. These charts, among others, have formed the basis for persistent pleas to raise judicial salaries. The charts, however, are potentially misleading because they fail to include the generous retirement benefits that are statutorily available to federal judges. Using my very rough model above and spreading the nearly $900,000 present value of pension benefits across a judge's fifteen years of active service, a federal circuit judge effectively earns at least $60,000 more per year (using the future value of these payments) than the charts released by the Administrative Office would suggest. Meanwhile, law school professors earn anywhere from a 5% to 13% matching grant toward retirement benefits from their employers, far less than the more than 33% earned by federal judges.

Even if I made some small arithmetic errors in my model above, my guess is that the present value of pension benefits for federal judges at the time of their appointment is closer to 40% of the total income that they expect to earn after age 50 if I were to use more realistic assumptions. And even if my model is too rough to be absolutely accurate, I think it adequately makes the point that the current comparative numbers released by the Administrative Office are insufficient. As a result, I personally cannot decide whether I support a pay raise for judges beyond simple cost-of-living adjustments, in part because I am highly skeptical of the comparative data released by the Administrative Office. Thus, I would encourage the Administrative Office to release more sophisticated data that take into account all bases for judicial compensation, not just the nominal salary numbers now emphasized. Then I might be persuaded that federal judges are underpaid and deserve the raise that has been persistently requested by the last two Chief Justices.

Note: Cross-posted on Empirical Legal Studies

Tribe on Burris and the Temporal Factor

jackbalkin@yahoo.com (Jack M. Balkin ) — Sat, 03 Jan 2009 19:51:28 GMT

Over at Forbes, Larry Tribe argues that Powell v. McCormack is distinguishable and that the Senate may refuse to seat Roland Burris. His argument is similar to that offered by Akhil Amar and Josh Chafetz, Mark Tushnet, and me. He concludes with the following:

But that the Senate's early December decision to exclude any Blagojevich appointee reflected nothing about the particular person he appointed cuts for, not against, leaving the matter to the judicially unreviewable judgment of the Senate itself.

For the danger of invoking doubts about the process of election or appointment, as a pretext for excluding someone that a Senate majority finds objectionable, is minimized when the decision to exclude is made in advance of any individual's appointment, and thus under the classical philosopher's veil of ignorance about whose ox might be gored.

Needless to say, whether the Senate has the authority to refuse to seat Burris is only the beginning of the matter, not the end of it. It merely sets up the background political entitlement in what is likely to be a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.

The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it's worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn't let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).

While that investigation is ongoing, Illinois may impeach Blagojevich and a new governor may make another appointment, which the Senate will probably readily accept. Or Blagojevich may strike a deal that procures his speedy exit. Conversely, if the Senate delays too long, or allows the controversy to fester, it may look bad and/or impede the Democrats' legislative agenda. That is especially the case if the Democrats decide at some point that they want to seat Al Franken.

We do not know the ultimate course of events. The point here, rather, is that the constitutional question-- whether the Senate must seat Burris-- must be understood against these temporal and political factors.

Dubai, Shanghai, Mumbai, or the Highway

jackbalkin@yahoo.com (Jack M. Balkin ) — Fri, 02 Jan 2009 20:38:32 GMT

Crosspost from Freakonomics:

In early December, I spoke at a Yale Law School breakfast on the current financial crisis — focusing on Robert Shiller’s book, The Subprime Solution. (Several of my earlier posts — here and here — were actually preparation for my presentation.) The first question to Shiller from the audience began: “Lots of my investment-banker friends are saying: Dubai, Shanghai, Mumbai, or the Highway …”

Shiller interjected: “What does that mean?” And the questioner explained that her friends were thinking that going forward, these foreign locales were likely to be much more economically successful than the West. She ultimately rephrased her question: “So I guess what I’m asking … Is America over?”

Shiller was no nattering nabob of negativism, saying that in 15 years the United States would be back “stronger than ever.”

The mention of Dubai in connection with the subprime crisis reminded me that just after the election, I was in Dubai for the World Economic Forum’s Summit on the Global Agenda, which focused on the world economic crisis. Sheikh Mohammed bin Rashid al-Maktoum, the Ruler of Dubai, addressed the conference. (You can read Peter Ubel’s description of the address here. The ruler’s most jarring assertion: “In Dubai, we are building our future with our own hands.”)

Until hearing this speech, I had failed to realize how upset the rest of the world might be with the U.S. for its subprime crisis.

Think about it. U.S. banks make ill-advised loans to poor U.S. citizens. And what happens to the rest of the world? They lose half the value of their stocks. The annoyance over our high-leverage loans is particularly high in Muslim countries, where mortgages are inconsistent with Shariah.

An All-Pay Auction

jackbalkin@yahoo.com (Jack M. Balkin ) — Fri, 02 Jan 2009 20:36:38 GMT

Crosspost from Freakonomics:

Martin Shubik invented a famous game-theory exercise, sometimes called “the dollar auction,” where a teacher auctions off a $20 bill to the highest bidder. Bids have to be in round dollar amounts, but the twist is that both the highest and the second-highest bidder have to pay. When uninitiated students start to play this game, someone rushes to bid $3 or $4 dollars for the prospect of winning $20, and then other students respond by bidding up the price.

But then something amazing happens as the auction price starts approaching $20. The remaining bidders realize that they could end up having to pay a lot of money and not win the auction. Imagine that you had bid $19, and another bidder upped the ante by bidding $20. What would you do? Is it better to bid $21 for a $20 prize or to remain silent and pay $19 for nothing?

What starts off as a feel-good exercise to take advantage of a generous professorial offer suddenly becomes a sickening war of attrition, where the last two bidders pay more than what the prize is worth. These games routinely end with the winning bid being 50 percent higher than the value of the prize. Since both the highest and second-highest bidders pay, this means that the professor rakes in about three times the amount being auctioned.

This is an example of what auction theorists call an “all-pay” auction, and it’s a game you want to avoid playing if you possibly can.

But Barry Nalebuff pointed me toward a scary website — called swoopo.com — that seems to be exploiting the low-price allure of all-pay auctions. And it seems to be working.

Swoopo auctions off desirable (gotta have) electronic items (Wii’s, smartphones) for really low prices and with really short fuses — often less than a minute before the auction expires. It’s kind of seductive to watch these fast-paced auctions — because if someone ups the high bid, 15 seconds of extra time is added to the auction length. I found myself waiting to see if a TomTom GPS device would really end up selling for $18.

But there is an important hitch: you have to pay Swoopo $1 every time you bid. This creates an analogous all-pay effect. Swoopo may only sell a Wii for $30, but it might collect an extra $1,000 from bids. This website is a great experiment to see whether sunk costs matter. I’m thinking that someone who has already invested $5 in bidding costs is more likely to keep bidding to “protect” his or her sunk investments.

Of course, there is also the concern that you might end up competing against a Swoopo-bot that outbids you just before the time is about to expire. This is a game that I don’t want to start playing.

Another magazine breaks my heart

jackbalkin@yahoo.com (Jack M. Balkin ) — Fri, 02 Jan 2009 20:15:45 GMT

Today's mail brought me the current issue of The Nation, a journal I have long admired, subscribed to, and, indeed, written for. So imagine my disappointment when its issue, devoted to "Ideas for a new progressive era," contained nary a mention of the need for any reflection at all on the adequacy of our "hard-wired" Constitution to the 21st century. To be sure, there is an interesting article by Aliz Huq, "Dismantling the Imperial Presidency," that concludes with the necessity for "restoring America's tarnished Constitution." As one might expect, though, all this refers to is the Bush Administration's depredations and the hopes that Obama will be a less imperial president. It apparently doesn't occur to Huq that more fundamental controls on would-be imperial presidents might include, for example, the ability to vote no confidence instead of having to engage in frustrating and fruitless debates about whether certain actions meet the presumed standards for impeachment set out in the 1787 Constitution. (And, frankly, I'm not sure that I agree with the article's premise that president's should never view themselves as possessing what Locke called "prerogative power." Perhaps what we should be doing is having a far more serious discussion than we've had up to now about how to design a least-dangerous form of "emergency governance" or even what Clinton Rossiter, following Machiavelli, called "constitutional dictatorship." An unfortunate reality of the Bush Administration is that its mixture of almost-fascist authoritarianism and demonstrated incompetence has made next to impossible a serious discussion of what kinds of "exceptional" powers we want to place in the hands of executives, whether we're speaking of the President or the head of the Federal Reserve Board.

I know that many of you disagree with me on this, and I'm not really trying to stir up another long thread about what would be wise policies with regard to either votes of no confidence or "constitutional dictatorship." Rather, what so dismays me is that there is not even the semblance of an intelligent public debate on such issues in journals that are, at least in self-presentation, most attentive to problems of presidential overreach and the like from a "progressive" stance. The Nation and The American Prospect are probably at somewhat different places along the political spectrum, but both, alas, seem to share an absolutely stunning complacence with regard even to the possibility that 21st century "progressives" might emulate their 20th century predecessors and ask serious questions about what might need changing in the Constitution. The period 1913-1920 saw four amendments to the Constitution, all of them important (including prohibition for its demonstration of the difficulty of prohibiting on basically moralistic grounds behavior that substantial minorities (at least) wish to engage in).

We're not even capable of having a serious discussion about whether we should provide a mechanism for "continuity in government" should a catastraophic attack deprive us of sufficient representatives and senators to constitute a legitimate government, as exemplified by the current posting on the Nation's web site by John Nichols. He repeats his foolish argument that "no governor should have the power to appoint a senator. Senate vacancies should be filled by the voters, as are vacancies in the US House." (As I've earlier demonstrated, his argument isn't necessarily foolish if there are only a couple of vacancies; it's an unmitigated disaster, though, should an attack deprive us of the active service of, say, 25 senators.) He concludes his posting, incidentally, by stating that Harry "Reid should stick to the stance he took after the governor was arrested December 9 and refuse to allow a Blagojevich appointee -- even one as credible as Burris -- to sit beyond the point when Blagojevich is removed from the statehouse." I would gladly serve pro bono on the Burris legal team should the Senate, having made its (I believe correct) decision to seat him in the first place, then try to remove him because Illinois has made the (presumptively correct) decision to bounce Governor B. Only those who read Article I, Section 5 as granting truly "plenary" power, i.e., unconstrained by any limits at all, could defend such a move. And that argument is no more attractive, or constitutionally compelled, than is the John Yoo argument about unconstrained powers in the hands of the president.

The case against seating Burris: Too Clever By Half?

jackbalkin@yahoo.com (Jack M. Balkin ) — Thu, 01 Jan 2009 22:06:19 GMT

I truly regret to report that I am unpersuaded by the arguments made by my friends and usual compatriots Jack Balkin, Mark Tushnet, and Akhil Amar (I don't know Josh Chafetz, the co-author of the Slate article defending the Senate's prerogative to refuse to seat Burris). I suppose it's true that the Senate could/should consider the bona fides of a gubernatorial appointment if there is good evidence that it was procured by criminal means, including bribery. The problem is that there is not a scintilla of such evidence in this case. Governor B. might well be guilty of "attempted sale of the Senate seat," but it's clear that it didn't work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies. I don't see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of "good-government" scrutiny. Consider, for example, the shameful appointment of Lisa Murkowski to the Senate by her father, the former Senator who became Governor of Alaska. There is no plausible evidence that anything other than nepostism explains the appointment. Should the Senate have been empowered to decline to seat Ms. Murkowski (who was subsequently elected, though with a minority of the total vote, given the presence of minor parties in the race)? Should the motives of Gov. Patterson be subjected to relentless scrutiny if he bows to pressure to name Caroline Kennedy as a tribute to a dying senator and, in addition, to get access to the Bloomberg and Kennedy donor list that presumably comes with that appointment?

Given the capabilities of the analysts in question, I certainly don't question that the arguments made by Tushnet, Balkin, Amar, and Chafetz are within the realm of plausibility, and I certainly agree that senators have the raw political power torefuse to seat Burris (and, therefore, to deny the people of Illinois half their representation in the Senate for many months). But just as Jack has made his turn, wisely or not, to a form of "originalism," I find myself, given my own turn toward emphasizing the importance of "hard-wired" aspects of the Constitution, rather inclined to what some people might even denigrate as "mindless textualism." That is, I do believe that the text of the 17th Amendment, read in its most ordinary sense, allows a state to empower its governor to make a temporary appointment (even if I do concede that the Senate could refuse to seat the appointee if one thought that the governor had made the appointment as part of criminally corrupt bargain). Governor B. is the fully legal governor of Illinois unless and until he resigns or is impeached. To say that the untoward conduct of which he has been accused deprives him of the power that the Constitution authorizes Illinois to give him leads to all sorts of conundrums: If I am charged with violating an Illinois statute passed by the Illinois legislature and then signed by Governor B. in the last couple of months, can I claim that the statute isn't "really" legitimate because, after all, Gov. B. isn't really the governor anymore? That's obviously absurd on its face. But why, precisely? Is the answer that Balkin et al. are really defending the prerogative (and I use that word advisedly) of the Senate to offer what laypeople would find strained and hypertechnical readings of the Constitution in order to escape a political embarrassment? If so, I return to Murkowski? Why shouldn't the Senate have risen as one to say that such blatant nepotism violated our "Republican Form of Government." Akhil has a brilliant discussion in his book America's Constitution on the Founder's rejection of dynasticism.

I have been railing for the past several months against the almost criminal stupidity of the Inauguration Day Clause, but I've never suggested that there is a clever way of working around it in the absence of a willingness of President Bush and Vice President Cheney to resign first. If one feels "stuck" by that incredibly stupid clause, with consequences far, far worse than allowing a presumptively competent, if somewhat superannuated Illinois politician to serve a couple of years in the Senate, then I think we should recognize that the 17th Amendment, too, generates a relatively hard-wired rule that limits the possibilities of further Senate scrutiny and the political mischief it invites. (Imagine, for starters, that the Senate is closely divided and that accepting the appointment would change the political control of the Senate (as in 2001) or provide/prevent a "filibuster-proof" majority.)

[Type the rest of your post here.]

The Decline of the Political Question Doctrine

jackbalkin@yahoo.com (Jack M. Balkin ) — Thu, 01 Jan 2009 17:42:27 GMT

I am very pleased to be a guest on Balkinization. Many thanks to Jack for permitting me to share a few thoughts here.

Although much of my research focuses on the intersection of law and political science, my first post will take up a lingering doctrinal matter from the Court's decision in Boumediene this past June. For those of us who teach federal courts, one of the most elusive concepts is the political question doctrine, primarily because it is so difficult to reconcile with the other justiciability doctrines such as standing, mootness, or ripeness. Unlike those three other doctrines, the political question doctrine is unrelated to the question of whether a particular plaintiff has a sufficient personal stake in a controversy to bring a lawsuit. Instead, the political question doctrine focuses on whether the resolution of a particular issue is a matter for the judiciary or one of the political departments of government.

Not surprisingly, the Court has limited the application of the political question doctrine to thorny areas that are at the intersection of law and public policy, such as Congress's ability to regulate its own internal processes and matters of foreign affairs. With respect to the latter category, the Court has long declined to interfere with sensitive questions of foreign policy, holding at various points in history that such questions of when a war begins and ends and whether to recognize a foreign government and grant diplomatic immunity to its officials are all nonjusticiable political questions. In fact, some scholars have recognized that the area of foreign affairs was the last bastion where the political question doctrine had "real bite." The question I pose is what is left of the political question doctrine after Boumediene v. Bush?

The answer, I believe, is not very much. As an initial matter, a majority of the Court has only employed the political question doctrine twice since 1964 (the year Baker v. Carr was decided) to dismiss a case, though various Justices have endorsed its use in a variety of contexts (e.g., treaty interpretation, political gerrymandering cases, etc.). Second, in Boumediene, the Court quickly dismissed the Government's argument that questions of sovereignty are matters for the political branches to conclusively decide. As the Court stated, "our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory . . . . When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, but sovereignty in the narrow, legal sense of the term, meaning a claim of right." The Court went on to conclude essentially that questions of de jure sovereignty (or a claim of right) are matters for the political branches to decide, but that questions of de facto sovereignty (or practical control over a territory) can be examined by the judicial branch.

Given that de jure sovereignty is the clearer purely legal question and that one of the lynchpins of the political question doctrine is the presence or absence of judicially manageable standards, I find the Court's abbreviated discussion of the political question doctrine quite significant, even astonishing. Questions of de facto sovereignty tend to be difficult to determine because of competing indicia of control and, as a result, judicially manageable standards seem to be fairly elusive. (However, I would freely admit that the United States' near-total control of Guantanamo Bay made the question of de facto sovereignty by the United States in Boumediene pretty clear.)

I also find the Court's discussion of the political question doctrine to be in stark contrast to its prior case law, which is quite deferential to the political branches on foreign policy questions. For instance, in Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 383 U.S. 103 (1948), the Court held that it could not review decisions of the President to grant or deny certificates of necessity to air carriers wishing to establish air travel routes to foreign countries. As the Court stated:

[t]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the Government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of the kind for which the Judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

In the past, the Court has held that questions relating to sovereignty, such as whether to recognize a foreign government and grant diplomatic immunity to government officials, were among the "delicate" and "complex" matters that were better left to the "political departments." And as the Court freely concedes in Boumediene, it would have at least deferred to the Executive Branch if the outcome of the case depended on which country possessed de jure sovereignty over Guantanamo Bay. I am surprised, therefore, that not a single Justice on the Court would have dismissed this case on political question grounds, at least as the majority framed the case. (Perhaps the majority opinion could have taken sovereignty off the table by expanding its discussion of extraterritorial application of the Constitution and further distinguishing Eisentrager.)

This post is a long-winded way of saying that I wonder what is left of the political question doctrine after Boumediene, if anything? Is it, like the Rooker-Feldman doctrine after Saudi Basic, left for only the most exceptional of circumstances? More fundamentally, does the decline of the political question doctrine coincide with and portend of a federal judiciary that is more willing to involve itself with matters of cultural and particularly political significance that have traditionally been left to (and are arguably textually committed to) the political branches? I do not mean for this post to invite a free-for-all on whether the Court was wrong or right in granting habeas rights in Boumediene, a question that has been examined at length elsewhere, but to emphasize and begin a discussion on an aspect of the opinion that has been almost entirely ignored by the media and even constitutional law scholars.

UPDATE: I have been a bit surprised by some of the comments that seem to suggest that questions of sovereignty should not be a political question. I suspect that much of the skepticism on this issue is due to the fact that Guantanamo Bay presented such an easy case on de facto sovereignty. But suppose that the Supreme Court of the United States were to declare the United States as the de facto or de jure sovereign over Iraq on account of the occupation of US troops. I find it hard to believe that such a declaration would not impact foreign policy and thus affect the US's relationship with both Iraq and other middle East countries. In fact, I view such a scenario as almost the paradigmatic case for application of the political question doctrine, at least as the doctrine has been articulated by the Supreme Court.

Can The Senate Refuse to Seat Roland Burris? Quite Possibly

jackbalkin@yahoo.com (Jack M. Balkin ) — Thu, 01 Jan 2009 02:10:32 GMT

Governor Blagojevich has decided to appoint former Illinois Attorney General Roland Burris to President Elect Obama's vacant Senate seat. Several commentators have argued that because of Powell v. McCormack, the Senate cannot refuse to seat Burris for any reasons other than whether he meets the qualifications of age, residency, and U.S. citizenship specified in Article I, section 3. He meets those qualifications, therefore he cannot be refused a seat. Instead, the Senate by two thirds majority, must vote to expel him, a considerably more difficult task.

Sounds like an airtight argument, right?

Not so fast.

Article I, section 5 reads: "Each House shall be the judge of the elections, returns and qualifications of its own members."

Hence the Senate may refuse to seat Burris for three reasons: because he is not qualified under Article I, section 3, because the election returns do not support him, and because his election was not properly conducted. Nothing in Powell v. McCormack is to the contrary. In Powell, the Supreme Court repeatedly assumed (and repeatedly asserted) that Powell had been duly elected, and Congress did not attempt to refuse to seat him on that ground.

In this case, Burris was not elected; he was appointed. Since he was not elected, perhaps the Senate could refuse to seat him for that reason. No, you might reasonably reply: That would be crazy. It would mean that whenever a Senator was appointed rather than elected, the Senate could automatically refuse to seat the person for any reason, which would be an end run around Powell v. McCormack.

Similarly, it would make no sense to say that because Burris was appointed but not elected, the Senate has no authority to judge whether he was duly appointed, because that would be an end run around Article I, section 5 of the Constitution in the other direction: Under that argument, the Senate would have to seat anyone who was appointed by anyone who claimed to be the lawful governor of a State, even people who were appointed by a sitting governor as the result of a transparent bribe. That is, under this argument, the Senate could look into whether an election was rigged but not an equally corrupt appointment.

Instead, you might argue, Section Two of the Seventeenth Amendment modifies Article I, section 5. It states:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct."

Thus, you might argue, the Senate must treat a person appropriately appointed by the executive authority of the state as duly elected for purposes of Article I, section 5.

But that is precisely is the basis of the Senate's refusal to seat Burris. In the Senate's view, Burris has not been properly appointed by the executive authority of the State of Illinois.

Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive authority? Well, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

And if the Senate decides that Burris has received his appointment in suspicious circumstances, the question is whether the Supreme Court could overturn their judgment or whether it must defer to it. The answer to that question comes from none other than Powell v. McCormack: In that case the Court said that the Constitution provided a textually demonstrable commitment to judging the qualifications listed, but no others. However, the same constitutional text gives the Senate the authority to judge the elections and returns of its members. If the Senate determines that Burris has not been duly elected (or, under the Seventeenth Amendment, duly appointed), Powell might seem to suggest that courts should defer to that judgment under the political question doctrine.

Is the argument I have presented foolproof? Probably not. I can think of a number of different issues to raise in objection. As new ideas come in, I will try to list them below.

However, what I have said is enough to suggest that the question of whether the Senate can seat Burris is not open and shut. It is very likely that the Senate would have a fairly plausible argument for refusing to seat him. And the Supreme Court would have a fairly plausible argument for deferring to the Senate's decision.

Let me conclude by saying that I have not yet made up my mind whether I think this is a good thing or a bad thing. Perhaps it would be better to just have the matter settled, so perhaps the Senate should just allow Burris to be seated so that we can get on with the country's business. What I do believe is that the Senate may have more options in this case than one might think.

UPDATE: Akhil Amar and Josh Chafetz over at Slate reach conclusions similar to mine by a different route: They point out (as does Mark Tushnet) that the Senate is also the judge of the "return" which, in this case, means the report of an appointment. They read Powell v. McCormack in much the same way I do.

The Burris appointment -- another view

jackbalkin@yahoo.com (Jack M. Balkin ) — Wed, 31 Dec 2008 14:45:15 GMT

Following up on Jack's post, here's the substance of something I sent to a listserv. It offers an analysis compatible with Jack's though a bit more textual in focus, and a bit more tentative in its conclusions than even Jack's tentative conclusions.

Without knowing *anything* whatever about the relevant history (whether of original meaning or subsequent practice), I began to think along these lines: There's no election (except in a metaphorical sense,and I think that term is displaced by the provision for "making" appointments to fill vacancies), and Burris clearly meets the qualifications as defined by Powell v. McCormack. But what about "returns"? The original Constitution contemplated temporary appointments by the state "executive" to "vacancies" (modified by the 17th Amendment, but not, as I read it, in any respect relevant to the argument I'm going to sketch). In the case of a vacancy, the "return" would be, I would think, the document indicating who the governor had appointed (pursuant to authority given him/her by the state legislature, per the 17th amendment). Is the Senate limited in any way when it "judges" the "returns"? Presumably it can't judge that a return is invalid on any ground whatever, because that would undermine Powell's holding. Presumably as well the Senate could say that the person who showed up is not the person named in the return. Presumably, too, were there two people claiming to be the state's executive, the Senate could judge which one "really" was the executive (an example that might arise were Burris to show up, Blago to be impeached before the Senate did anything about Burris, and the new "executive" -- I gather, the current Lieutenant Governor -- were to name someone else). Could the Senate say that the return is invalid because it did not conform to state law (were the Secretary of State to decline to sign the relevant document, even if experts in state law asserted that his signature was unnecessary to make the document effective as a matter of state law)? Could it judge a return invalid simply because it was suspicious of the process by which the named person was chosen (without coming to a conclusive judgment -- how? -- that those suspicions were well-founded)? Because it made an independent judgment that the state's executive should not be allowed to make the appointment because of questions about the executive unrelated to the appointment? Note that, with respect to the last question in particular, the fact that this is an appointment to fill a vacancy weakens -- although it does not eliminate -- the concern in Powell v. McCormack that the people and not the Senate should make the decision about who should represent them. As I indicated, these are genuine questions.

My inclination is to say that the Powell footnote about the nonjusticiability of decisions genuinely directed at determining whether a person met the qualifications rests on a judgment that we can expect the political process to operate responsibly when confined to those questions (even though we can imagine hypotheticals indicating irresponsible action). I would generalize that (I've done so, more or less, relying in part on a reading of Walter Nixon v. United States, in an article in the North Carolina Law Review) to say that the Senate has full power to judge returns as long as it confines itself by adopting some law-like standard that limits its discretion in ways that generate political accountability (and that, were it to adopt some law-like standard -- either formally, for example, in a report from the relevant committee recommending that the Senate not accept the return naming Burris, or informally [I'm inclined to think] -- the question of whether it acted in a manner consistent with the Constitution should be nonjusticiable).

Unilateral Disarmament in the Judicial Appointments Arm Race

jackbalkin@yahoo.com (Jack M. Balkin ) — Wed, 31 Dec 2008 03:44:41 GMT

With a new president entering office in less than a month, one difficult question for conservatives will be how to treat President-elect Obama's judicial nominees. My friend, Jonathan Adler, has stated in a post on the Volokh Conspiracy that "if we get a President Obama, and he nominates accomplished left-leaning lawyers and judges to the Supreme Court and federal appellate courts, I hope most conservatives and Republican Senators let them go through without much of a fight." Rick Hills, meanwhile, proposed in this post on PrawfsBlawg a "professors' nonaggression pact" against any academic nominees advanced by President-elect Obama because "literally any law prof -- is likely to be as good as, or even a better than, the typical nominee to a lower court, whose qualifications typically amount to being a Senator's friend or staffer." I am not sure that I agree with Rick, but I do think that Jonathan makes an extremely compelling point, one that I would be willing to endorse as a policy matter. In other words, in an ideal world, I would call for fellow Republicans to unilaterally disarm in the judicial appointments arms race.

One powerful argument is that it harms the legitimacy of the judiciary when we spend so much time arguing about who to appoint to the judiciary. A paper by James Gibson and Greg Caldeira, see here, basically makes that point in finding that exposing citizens to advertisements against judicial nominees (and particularly Justice Alito's confirmation) erodes support for the courts. Meanwhile, presenting the public with positive symbols of judicial power such as robes or the use of the words "your honor," teaches Americans that the courts are different than other political institutions and thus should be held in high esteem. The bottom line, as Gibson and Caldeira put it, is that "[p]oliticized confirmation processes therefore seem to have considerable
capacity to undermine the legitimacy of the Supreme Court itself." One possible consequence of our highly-politicized confirmation process is that, if the public believes that judges are nothing more than political actors in robes (as many political scientists believe), then perhaps it will be more difficult for the country to accept politically-controversial decisions like Bush v. Gore.

Moreover, several circuits are now so understaffed that a number of cases are now being decided summarily without oral argument or by panels that have one or more judges sitting by designation from another court (such as district court judges). For instance, the Fourth Circuit now has four vacancies (out of 15 authorized judgeships), three of which have been labeled as "judicial emergencies." There are now 44 judicial vacancies, about 5% of the total capacity of the federal judiciary, with about 22 additional vacancies nearly certain to occur within the next six months. When the confirmation process becomes so politicized (to use Gibson and Caldeira's words) that it becomes difficult to get the work of the judiciary done in an efficient and timely manner, then it is time to step back and reexamine the process.

I am sure there are other arguments as well for a depoliticized process, but it bears mentioning that the average circuit court nominee has taken more than one year to confirm during the presidency of George W. Bush. For those nominations that have been renewed from one Congress to another, that figure jumps to more than two years. To my knowledge, it has taken longer to confirm President George W. Bush's circuit court nominees than for any other president in United States history. In my view, if Senators were holding up nominees in order to closely examine their credentials or ideology, then I would have no objection to a lengthy, probing process. But that is simply not the case in most instances. Senators are now refusing to give judicial nominees a vote in order to please interest groups and to extract concessions from the opposing party. Judicial nominees have become a bargaining chip in a process that has increasingly involved vote-trading among Senators (according to Orrin Hatch).

In an ideal world, I would very much support disarming over judicial nominees. Unfortunately, however, we do not live in an ideal world. In a later post, I will explain why it is unlikely that we will return a time when nominees to the lower courts were confirmed within weeks, not years.

Read me whine

jackbalkin@yahoo.com (Jack M. Balkin ) — Tue, 30 Dec 2008 18:04:03 GMT

Consider current issues of two leading ostensibly "progressive" journals, The Boston Review and the American Prospect. The former, which bills itself as "a political and literary forum" (though it doesn't appear to include a letter-to-the-editors page for its readers to participate in the forum) has, in the November/December issue, an interesting article by William Hoagland, "Constitutional Conventions." Hoagland is the author of The Whiskey Rebellion and the forthcoming Inventing American History. I have no doubt he is an interesting person. That being said, I hope that some of you will appreciate my disappointment when I actually read the piece, which is a review of the American Constitution Center in Philadelphia and an attack on same for allegedly promoting an anodyne "consensus" view of American history instead of the more Beardian class struggle that Hoagland prefers. He says that the promotion of this consensus view has helped to blind the contemporary American public to the extent to which the Constitution is anti-democratic. I 0bviously don't object to this general argument, even if I think he is at least a bit anachronistic in his view of truly "democratic" possibility in late 18th century America. What did dismay me, however egocentric it is to say so, is Hoagland's seemingly complete ignorance of the fact that there are some contemporary writers, including Dan Lazare, Robert Dahl, Larry Sabato, and myself, who are far more interested in stirring a debate about the contemporary inadequacies of the Constitution than going over, once more, whether the Constitutional Convention was a collection of demigods or of militant opponents of the kind of democracy represented by the Shays Rebellion and, later, the Whiskey Rebellion. Perhaps trashing the Framers is thought to be necessary condition for criticizing the Constitution today, though I don't think so. One can say they did the best they could for their time and provided us with the example, which we've chosen to ignore, of responding to new exigencies with truly radical thought. But, hey, if returning to Beard would generate more contemporary discussion of the Constitution, that's fine.

I'd be considerably happier, of course, if the Boston Review had taken any cognizance of either Sabato's or my book, both of which I continue to believe have something to say to people interested in achieving a truly "progressive politics."

But my disappointment with the Boston Review (which I will continue to subscribe to, if for no other reason than Alan Stone's always fascinating movie reviews) is as nothing compared with my reaction to the issue of The Ameican Prospect (which I also, of course, subscribe to) that arrived in today's mail. It includes a 15-page special section on "Revitalizing Democracy," financed by grants of the Rockefeller Brothers Fund, the Carnegie Corporation of New York, and The Joyce Foundation, with contributions by a number of first-rate authors, including Balkinization's sometime contributor (and friend) Heather Gerken.

There is, alas, not a word in the fifteen pages that suggests that anyone interested in "revitalizing democracy" might actually be looking at the Constitution and asking whether it works for or against achieving the goals that the American Prospect sets forth for America (and which I share). Again, I, and I assume Sabato, would be happier if critics grappled with our arguments and then disagreed with them rather than pretend that no such arguments exist.

What is dismayingly typical is the first piece, by Bob Edgar, idenified as "the president and CEO of Common Cause, who offers four suggestions. The first two involve good-government electoral reform, that I certainly endorse, but says nothing about the anti-democratic electoral college. The fourth suggestion is to "restore the Constituion":

The new Congress and administration must work to restore the rule of law, the separation of powers, and the respect for human rights and the Constitution. We need more than just a government that enacts sound policies. We need a democracy capable of building broad and resilient support for the changes, sacrifices, and disruptions that are inevitable. And we need to rebuild the structures of democracy that hold power accountable, especially for the poor, the powerless, and the voiceless.

With all due respect (a dead rhetorical giveaway), the foundations should sue for their money back if this is all he can come up with. I certainly agree that we should "respect" the parts of the Constitution that are worthy of our respect. But does it occur to Mr. Edgar that there may be some parts of the Constitution that are not worthy of respect precisely because they reinforce the lack of accountability and help to assure that the poor, the powerless, and the voiceless will continue to be systematically screwed by a system that, as Hoagland well points out, wasn't constructed with their interests in mind in the first place? Anyone interested in assuring better accountability, for example, should look at how "the opposition parties" are treated in other constitutional systems, including Germany. Rick Pildes and Daryl (no relation) Levinson wrote a brilliant article several years ago in the Harvard Law Review on "the separation of parties, no powers." It should be at the heart of contemporary public discussion.

Larry Marx, the executive director of the Donor Collaborative of Wisconsin, has a three page article calling for "a broader definintion of democracy," with the subhead "Small reforms won't bring the system-wide change we need." Amen, brother. But it turns out that Marx, too, doesn't seem to contemplate even the possibility that we might look at the Constitution if we want "system-wide change we need." Of course, the reason may be that Article V dooms us to failure with regard to any such efforts, so it's simply easier to continue with small- or medium-size reforms (many of them, I hasten to add, that are fine ideas) than even to discuss any more ambitious alternatives. This repression of any radical thought is one of the reasons I have come truly to despise Article V, since it's pernicious consequences go well beyond simply preventing some changes I might support (and, to be sure, sometimes stopping changes I oppose).

Forgive me for the self-indulgence of this posting. But it really does rankle to watch one's erstwhile political allies, committed to all sorts of good goals, whether it's further "democratization" of American politics or helping the poor and the currently voiceless, simply maintain a truly willful ignorance to the possibility that our Constitution is at least as much the problem as the solution to the ills they all identify. If they set out the limits of "change we can believe in," we really are doomed, as argued in an extremely interesting and troubling review elsewhere in that issue of The American Prospect, by Chris Mooney, of two books on global warming and the seeming incapacity of our political system (or, perhaps, all political systems around the world as well) to respond adequately and begin engaging in the changes that are necessary.

Our defective state constitutions? (Or, does this crisis portend the end of what remains of robust federalism?)

jackbalkin@yahoo.com (Jack M. Balkin ) — Mon, 29 Dec 2008 23:10:33 GMT

Paul Krugman's column in today's Times, tellingly titled "Fifty Herbert Hoovers," discusses the insanity of the fact that most states are cutting back on public expenditures right now. And why is that the case, beyond the implausible power of fanatical anti-tax libertarians in the hustings? As Krugman writes, "Partly that’s because these governments, unlike the feds, are subject to balanced-budget rules. But even if they weren’t, running temporary deficits would be difficult. Investors, driven by fear, are refusing to buy anything except federal debt, and those states that can borrow at all are being forced to pay punitive interest rates." Of course, what Krugman, Nobel Prize-economist that he is, refers to "balanced-budget rules" can also be described, perhaps more pointedly, as "state constitutional requirements." But, as he notes, even if more states were allowed to run deficits, that still wouldn't resolve the problems involved in states finding people to lend them money, especially since, thanks to the US Constitution, states are prevented from issuing their own currencies. (I DON'T count this as a defect of the US Constitution, incidentally.) In any event,

as more and more states emulate Arnold Schwarzenegger and Tim Strickland--and almost everyone literally and figuratively in between--in asking federal aid to allow them to meet basic expenditures of the modern welfare state, including, say, public education, law enforcement, and provision of emergency medical service (not to mention imprisoning people and inspecting restaurants, etc.), "federalism" will have to be recognized even by members of the Federalist Society as the dessicated notion that it has become in the course of the past century and a half. And this, of course, has nothing to do with the most common post-World War II attack on federalsm, which is the propensity of unregulated states to engage in such things as invidious racial discrimination and the like. No, we are going back to the critiques of the initial Progressive Period, when it was becoming obvious that state autonomy with regard to the economy just didn't make much sense. It really doesn't matter if one actually likes principles of "subsidiarity" that dictate that decisions should be made at the most local level possible. (I think that's a pretty good principle myself). The hooker is the word "possible." Hell, we're realizing that Buchananite fantasies of national "sovereignty" really don't make much sense anymore with regard to the general economy, that a whole bunch of countries are going to have to come together and agree, e.g., on what count as acceptable principles of accounting so that regulators (and investors) can have some idea of what vaunted financial institutions are actually worth and what they're doing with their money.

The challenge facing President-to-be (in only 22 more days, glory be) is speaking candidly to the American people about how many of their accepted understandings of our system(s) are now up for grabs. (And, of course, I hope that sooner or later he'll get around to our dysfunctional Constitution, but I don't need to go down that road today.)

I unbeg your pardon-- I never promised you, said the man in the Rose Garden

jackbalkin@yahoo.com (Jack M. Balkin ) — Fri, 26 Dec 2008 21:16:15 GMT

For readers who want to know whether George W. Bush can in fact take back a pardon to Robert Toussie already given, there is a blog solely devoted to pardon issues, appropriately titled Pardon Power. The most recent post gives a historical run down of pardons given and taken back.

The argument made in that post is based on a series of precedents by the executive branch. Generally speaking, such precedents count for a lot in construing the Constitution. If the text is ambiguous or silent on the question whether the President can take back a pardon once offered, an unbroken line of practice on the question, if otherwise reasonable, is a powerful argument.

The question of taking back pardons, it should be noted, is really only the tip of the iceberg. The more general question is why the President's pardon power should be construed as broadly as it has been. There are many possibilities for abuse of the pardon power.

Even if the President has unreviewable power to grant pardons under the Constitution, it does not follow that the system cannot be rationalized and made subject to various procedures. The Executive branch already has structures for processing pardons. Moreover, Congress has the power, through its horizontal powers under the necessary and proper clause, to create and structure executive departments. Obviously, Congress cannot act so as to limit the President's prerogatives, but this does not mean that Congress may not set up agencies within the Executive Branch to assist the President in his determinations. The President, in turn, may have political reasons for employing these structures even if they channel the exercise of his discretion.

In this case, it appears that the pardon to Robert Toussie may not have gone through the Justice Department's regular procedural channels for granting pardons. This shows one of the reasons why these procedures are a good idea. It also reminds us of the fact that the Bush Administration has regularly tried to short-circuit a series existing procedures for decisionmaking-- ranging from intelligence analysis to the treatment of detainees to plans for dealing with post-war Iraq-- all with disastrous results. You would think that by now the White House would have learned that there are sometimes good reasons to vet decisions with people who don't already agree with your proposed course of action.

Will Al Franken or Norm Coleman be able to claim to be "the people's choice"?

jackbalkin@yahoo.com (Jack M. Balkin ) — Thu, 25 Dec 2008 04:22:57 GMT

First things first: I of course support Al Franken and hope that he prevails over Norm Coleman, who appears to be a particularly odious opportunist in terms of his first embracing the Bush Administration and then, this year, pretending to distance himself from the Administration that he had helped to enable. That being said, and giving Minnesota due credit for appeaing to run a first-rate recount system, the election is Exhibit A for the problem of first-past-the-post systems of election.

Franken and Coleman each received approximately 42% of the votes cast on November 4. You can do the math. This means that over 15% of the vote was received by a third-party candidate, Dean Barkley (and, I gather, the remainder went to a couple of truly minor candidates). The one thing we can be sure of is that approximately 58% of Minnesotans will have cast their vote against the winner, whether it's Franken or Coleman. Obviously the 16% who voted for "other" in November may have a preference as between Coleman and Franken, but we--or at least I--do not know what it is, and no one in the universe has any "official" numbers.

Far better would be a voting system that allowed the winner plausibly to claim majority approval. One could do what Georgia does, so that Saxbe Chambliss, who received less than 50% of the vote against Jim Martin, had to compete in a runoff election against Martin, which he handily won. My own preference is the Alternative Transferrable Vote, by which every Minnesota voter would have rank ordered the candidates. Once Barkley is eliminated, then the second choices of those who had given Barkley their first-choice vote would be allocated, and the winner would have received some version of majority endorsement.

There is nothing in the Constitution that prevents states from adopting voting systems that would do a better job of meeting democratic criteria. It's also the case, incidentally, that several of the Democratic wins in 2006 featured non-majority winners who might have been helped by the presence of third-party candidates who deprived Republicans of likely votes. This might have been the case in Montana, and Sen. Webb in Virginia, too, might have been helped by the third-party candidate. So there's nothing partisan in my critique of the voting system that Minnesota, like almost all other states, has adopted.

Given everything that's happening in the world right now, this is a minor issue (unless, of course, Franken's win, together the political realities facing Republicans seeking re-election in 2010 gives the Democrats a filibuster-proof majority in the Senate, or a Coleman win makes it genuinely possible for Senate Republicans to play their role as filibustering obstructionists with regard to Democratic programs designed to meet the various crises).

For those who celebrate Christmas shortly, I hope it is a suitably merry one.

Tushnet, Teles, and "What Consequences Do Ideas Have?"

jackbalkin@yahoo.com (Jack M. Balkin ) — Wed, 24 Dec 2008 15:05:09 GMT

Mark Tushnet, Harvard Law School, has posted What Consequences Do Ideas Have? which reviews Steven Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law. The review appears in the Texas Law Review (2008). Hat tip to the Legal Theory Blog. Legal historians may take a special interest in Tushnet's comparison of the Federalist Society with "Felix Frankfurter and the 'Happy Hot Dogs' of the New Deal." Here's the abstract (my thoughts on Teles follow):

Steven Teles's book, The Rise of the Conservative Legal Movement, is a case study of ideological challenge. Teles, a political scientist, emphasizes the institutional dimensions of such challenges. Relying on interviews and internal documents produced by conservative organizations, he examines the development of conservative litigating groups (i.e., conservative public interest law firms), the growth of the Federalist Society, and the embedding of law and economics within the legal academy. There have been similar studies of liberal public interest law firms and of the rise of liberal legalism in the academy, but Teles's is the first to look on the other side of the ideological divide. And, given the dominance of liberal legal ideology, his analysis brings out in sharp relief many new insights into the institutions that affect the outcomes of ideological contests. In addition, Teles connects his analysis to a broader theme in recent studies of American political development. The rise of the conservative legal movement was intimately connected to changes in the dominant political order that have occurred over the past thirty years: the decay of the New Deal-Great Society political order, and the Reagan Revolution and its limits. In these ways Teles provides a firm foundation for thinking (or perhaps merely speculating) about future developments in the institutional apparatuses associated with conservative and liberal legal thought.
This Review summarizes and critiques Teles's analysis of the three components of the conservative legal movement, beginning with the least important, law and economics in the legal academy, and then turning to conservative public interest law firms and the Federalist Society. It concludes with some speculations about the future of that movement, in light of the connection Teles rightly draws between that movement and the American political regime of the late twentieth century.

Teles is essential reading for anyone interested in late 20th century legal history or the role of institution-building in social change efforts. One point Tushnet doesn't raise in this extremely helpful review, in spite of his title, is the way Teles's fine but necessarily focused work underplays the role of certain ideas in "the conservative legal movement."

Left out of Teles' account is the role of the religious right, and I suspect that this is the reason that abortion rights play so little role in Teles's description of legal conservatism. Roe v. Wade was not just a case, but also a catalyst for organizing against the Court, enabling fund raising efforts and mass mobilization.

Others have criticized Teles for this absence, and Teles, a careful political scientist, has an appropriate response: First, another book covers religious conservatives, Steven Brown’s Trumping Religion: The New Christian Right, The Free Speech Clause, and the Courts (Alabama, 2004), and "One of the main reasons I did not go into the subject at any greater length than I did was that I did not feel I had much to offer that Brown had not already covered." Second, and perhaps more important, Teles explains: "while I believed I was already reasonably far up the learning curve on the subjects I covered in the book (despite not being a lawyer), I do not have any particular training or background in Christian conservatism....To write a book like mine that covered Christian conservatives would require that the author have an intuitive sense of that part of the movement, and in all honesty, that is not part of my intellectual capital." He develops this point here.

But this means that Teles's point that he could only do so much and has not written a comprehensive history of legal conservatism must be kept in mind when we draw lessons from this work about the content and impact of the conservative legal movement. (I also wonder whether conservative women, who rarely appear in this otherwise excellent book, would play more of a role in a broader account.)

Because of this, although the book is a must-read for anyone interested in legal thought in the late 20th century, the limitations of Teles's methodology mean that, at least when it comes to the movement's motivating ideas, it cannot be read as a history of the conservative legal movement, but instead of critically important parts of it.

Cross-posted from the Legal History Blog.