Judge Palin?

Just in case you thought daytime TV needed one more courtroom show:

Sarah Palin, whose last reality-TV showAmazing America With Sarah Palin, was not exactly a smash hit, is getting a second chance at daytime-TV stardom.People reports that the former Alaska governor has signed a production deal with Warm Springs, a production company based in Montana, for a courtroom reality show in the vein of Judge Judy. “Palin’s telegenic personality, wide appeal, and common-sense wisdom make her a natural for this kind of format,” an unnamed source told the magazine.

I guess that if I were attaching terms such as “wide appeal” and “common-sense wisdom” to Sarah Palin, I’d want to stay unnamed too.

Just the same, a Judge Judy-type show might be right up the former vice-presidential candidate’s alley. Her lack of a J.D. won’t be an obstacle in addressing the kinds of disputes featured on daytime TV courtroom reality shows; it’s not as though she’ll be expected to parse complex statutory language. She’s polarizing, but the people turned off by her aren’t likely to be sitting at home on weekday afternoons eagerly awaiting her latest pronouncements. These shows are about delivering a semblance of rough justice and allowing viewers to feel superior to one or both of the hapless participants. “Judge” Palin should have no trouble delivering on both fronts. And without this kind of crucial hands-on experience, how else is she going to make Donald Trump’s Supreme Court short list?

?-D Chess and GOP Strategy on the Supreme Court

So much of the discussion about filling Antonin Scalia’s spot on the Supreme Court has centered around the electoral consequences of different strategic choices, especially on the Republican side. Should Republicans obstruct at all costs in order to satisfy a base that can’t get enough Obama hatred, or should they use their available leverage to pressure the president (who will be president until January 19, 2017, just to be clear) to appoint a centrist who, for conservative purposes, would be preferable to potential Clinton or Sanders nominees? What are the political and legal ramifications of accepting 4-4 decisions, which would leave a number of significant Court of Appeals rulings standing at a time when a majority of circuits has majorities appointed by Democratic presidents? And how would long-term obstruction affect the electoral chances of blue-state Republican senators up for re-election?

But I confess to harboring doubts about Senate Republicans’ strategic acumen when a sober calculation of the party’s best interests so often collides with the white-hot rage of its base. Consider these two examples:

  • The Republican National Committee’s Growth and Opportunity Project, in its 2013 autopsy of the recently concluded presidential election, argued that unless the party took up the cause of comprehensive immigration reform, and more generally adopted a more welcoming tone toward Latinos, the “Party’s appeal will continue to shrink to its core constituencies only.” “If Hispanic Americans perceive that a GOP nominee or candidate does not want them in the United States (i.e. self-deportation), they will not pay attention to our next sentence.” Yet the leading Republican candidates have rejected Mitt Romney’s “self-deportation” policy as too lenient.
  • When Attorney General Eric Holder announced his resignation last September, he stated that his departure would take effect as soon as his successor was confirmed. You might think that conservatives, who led the successful effort to make Holder the first sitting Cabinet member to be held in contempt by Congress, would have fallen over themselves to replace Holder with just about anybody. Instead, Republicans dragged out Loretta Lynch’s confirmation process for five months, thereby extending Holder’s tenure.

For now, it’s unclear whether the American public will be treated to Potemkin confirmation proceedings or none at all. But let’s not assume that Obama’s opponents are engaged in grand strategic calculations, when it’s more likely that their actions are simply about trying to avoid attracting the ire of the conservative id.

The obvious choice to replace Scalia

In a different world, when a leading figure in American jurisprudence dies, our initial response would be to take stock of his legacy, both positive and negative, and to remember that he had many friends and family members who will miss him dearly. It would not entail parsing the political ramifications of that person’s passing. But that world does not exist today, and it’s unclear whether that world ever existed outside of David Broder’s imagination. Politics cannot be put on hold, given the Supreme Court’s centrality to American politics, highlighted further by the upcoming presidential election that might decide the balance of power on the Court for decades to come. So let us dispense with the jiggery-pokery and consider possible scenarios for Justice Antonin Scalia’s replacement.

In the most likely scenario, President Obama will nominate a moderately left-of-center person (this guy is getting all kinds of buzz, and deservedly so) and dare the Senate to block the nominee for almost a year. The initial reaction of Senate Republicans indicates their willingness–their glee, really–to accept that dare. A party that breaks with decades of tradition by refusing even to hold courtesy hearings on Obama’s budget will not be deterred by the argument that a year’s worth of dilatory tactics is somehow outside the pale. And the ghosts of Abe Fortas and Lyndon Johnson can testify that when it comes to being the subject of filibustering, the Supreme Court is not out of bounds.

Maybe the calculus will change if the Democratic nominee for president conclusively pulls ahead  in the general election race and Democrats show signs of regaining control of the Senate. In that scenario, an Obama nominee might look preferable to whoever might be chosen under unified Democratic control. But if the Republican nominee is even or ahead after the conventions, the GOP will feel that much more secure in waiting until 2017. Since Obama, according to early reports, has already indicated that will be nominating someone, the shadow of the Supreme Court will loom over the general election, and increasingly over the primary election (contrary to what I wrote not even 48 hours ago).

But should Obama decide, in the face of continuing Republican intransigence, to change his strategy from seeking a mutually acceptable nominee to trolling Senate Republicans, there’s really one obvious choice: David Souter. Not only do you get the moderate liberal, but you can also tout him as a Republican who comes with the Bush family seal of approval! And at 76, Souter would be unlikely to hold the seat for a very long time, so a new president could still get a shot to fill the seat. Conservative activists whose nomination strategy can be characterized as “No More Souters” would become apoplectic, but inducing apoplexy is the very point of trolling. I’m not really expecting Obama to undertake this maneuver, but if he can’t break through the anticipated resistance with a more conventional nominee, I’d love to see him try it.

The Supreme Court’s absence from the 2016 campaign

The Supreme Court has memorably been labeled “the least dangerous branch” of the national government, yet if the 2016 elections result in more divided government, its relative power will increase in the face of continued gridlock. Moreover, with four justices over 75, the Supreme Court will see its direction shaped indelibly by the president who has the opportunity to fill the vacancies that from an actuarial standpoint are likely to occur. Yet the Court has received little attention from either party’s presidential candidates, and this relegation has flummoxed various astute political observers. After describing the multifarious and highly consequential issues the Court will face in coming years, and how new appointments will determine the direction the Court will take on these and many other issues, Ed Kilgore at New York‘s Daily Intelligencer raises the possibility that this year might be different if

either Sanders (who, again, views campaign-finance reform as a condition precedent for much of his agenda) or Ted Cruz (the self-proclaimed “constitutional conservative”) wins a nomination. It’s also possible a Hillary Clinton presidential candidacy would make defense of Roe v. Wade or reestablishment of voting rights a public priority. More likely, SCOTUS will continue to be an underground issue of immense importance to constituency and interest groups but only discussed by the candidates indirectly or via dog whistles to the initiated.

The mystery of the Supreme Court’s low visibility certainly has something to do with the plethora of competing high-profile issues (e.g., security, the economy), as well as the presence of high-wattage figures who prove attractive to a press inclined to explain political trends in personalized rather than institutionalized terms. It might also have something to do, as Edwin Chemerinsky puts it, with a public perception of the law that insufficiently recognizes how much discretion the justices possess, and thus fails to ascribe sufficient significance to the composition of the Court.

Kilgore’s reference to constituency and interest groups captures so much of why candidates have not spoken more directly of the Supreme Court. Primary electorates tend to be more ideologically extreme than the electorate at large, and they tend to be more engaged in politics. If general election voters are akin to casual supporters of a football team, primary voters are the fans who drive a hundred miles to watch their team in training camp, and show up on snowy December days when their team is 2-12. But if the diehards are the core audience for a primary campaign message, and they are more likely than the general electorate to recognize the Court’s significance and to link it to presidential election outcomes, why not talk more about the Court now, rather than downplay it?

The best answer, as I see it, is that there is little to be gained in a contested primary campaign from raising the issue. Hillary Clinton and Bernie Sanders are likely to nominate similar people to the federal bench; even if Sanders would prefer someone further left than would Clinton, he would find himself constrained by the Senate, irrespective of which party controls the chamber. Similarly, while the Republican candidates might disagree on the degree to which Chief Justice Roberts’s apostasy has made him this generation’s David Souter, they agree that Souter 2.0 is worth avoiding at all costs. And activists on each side know that the differences between their respective party’s candidates on nominees pale in comparison to the differences between parties. So once the candidates have signaled their bases about their general trustworthiness concerning the Court, there is not much upside to going into greater detail, and some potential risk of misspeaking or otherwise coming into conflict with judiciary-focused activists.

As someone who studies and teaches about judicial politics for a living, I would be delighted to see this campaign feature a more vigorous debate about the Supreme Court. But unless debate moderators or primary voters can successfully pressure the candidates to address the subject, that debate won’t be occurring before the general election campaign.

Update (2/13/16): It seems I’ve spoken too soon.

Affirmative inaction at the Supreme Court

I’ve been cogitating for over a week about the Supreme Court’s second go-round with Abigail Fisher’s challenge to the University of Texas’s undergraduate affirmative action program, and I’m still struck by how little we learned from the proceedings. We already knew that there were four justices (Roberts, Scalia, Thomas, and Alito) who would make little effort to disguise their hostility toward affirmative action. Even Scalia’s Foxified version of the mismatch theory, which claims that affirmative action harms beneficiaries by encouraging them to attend schools that are too academically challenging for them, startled people only because of its tone, as opposed to its content. (I did entertain the prospect that Scalia had a bet with one of his fellow justices about when Clarence Thomas would speak next during oral argument, and that Scalia’s remarks were intended to bait Thomas into responding.) We also knew that four justices (Breyer, Ginsburg, Sotomayor, and Kagan) supported the state’s efforts to produce a student body matching the diversity of a ethnically diverse state.

The major discovery, as I see it, is the recognition that Justice Kennedy really really really doesn’t want to be the fifth vote to deep-six affirmative action, whatever his reservations about the policy. Everything about Fisher‘s journey strongly suggests that the four most conservative justices took the case with the expectation that they would eventually garner Kennedy’s vote. Had Kennedy wanted to supply that fifth vote, he could have done so when Fisher’s case first appeared before the justices. Instead, the Court chose to remand the case to the Fifth Circuit Court of Appeals, with orders to apply strict scrutiny, the most stringent form of equal protection review, to the Texas plan. (More precisely, to the part of the plan that uses holistic assessments of applicants, rather than the part that guarantees admission to any student graduating in the top 10 percent of his or her high school class.) The conservative-leaning Fifth Circuit had already upheld the Texas policy, but perhaps the Supreme Court’s directive would induce a different result. When the Fifth Circuit applied strict scrutiny and still upheld the program for a second time, the Court could have chosen to call it a day, but instead it seized the opportunity for a second crack at the case.

Justice Kennedy’s behavior during Fisher II’s oral argument suggests continuing hesitancy to accept the conservative bloc’s invitation to curtail affirmative action. Aside from eschewing the hostile rhetoric that characterized the more conservative justices’ line of questioning, Kennedy toyed with the idea of remanding to the trial court for fuller fact-finding into the operation of the Texas admissions policy. It is possible that a deeper dive into how the Texas policy works, or into how the minority students admitted under the Ten Percent Plan compare to those admitted under the holistic analysis being challenged by Fisher, might prove enlightening. But the justices have already been supplied with ample information, courtesy of litigants’ filings and amicus curiae briefs, into the unique way that the University of Texas seeks to produce a diverse student body.

As one who battles tendencies to procrastinate (hence the tardiness of this post), I think Justice Kennedy’s actions should be viewed as consistent with the procrastinator’s mindset. Sometimes people procrastinate because their ingrained perfectionism leads them to fear failure. But sometimes, as I believe is happening here, people procrastinate to avoid having to commit to a particular course of action. If you decline to make a decision, after all, you can skirt responsibility for what happens subsequently.

In Fisher II, Kennedy currently has several decision options, none of which seem to appeal to him. He’s skeptical of race-consciousness in public policy, and that skepticism precludes siding wholeheartedly with the liberal justices and upholding the use of race as part of a holistic analysis, as Justice Powell set forth in his pivotal opinion in Regents of the University of California v. Bakke (1978). At the same time, he does not subscribe to the doctrinaire color-blindness that his fellow conservatives are insisting upon, but any opinion that strikes down Texas’s holistic approach must invalidate Bakke as well, and Kennedy, based on his actions in both Fisher cases, seems reluctant to do that either. Barring a change of mind or heart, his remaining option is to hold out for some additional information to serve as cover for whichever position he eventually takes. His conservative colleagues could lean on him to make a decision already, but given the procedural history we’ve seen so far, they might not find themselves pleased with the result of that decision. Perhaps, then, they will enable Kennedy’s procrastination. Stay tuned….

 

The Supreme Court takes on jury selection

There is much to be said for the adage that hard cases make bad law, but there may be less to be said for the claim that easy cases make good law, at least at the Supreme Court level. Exhibit A: Monday’s oral argument before the Court concerning race-based uses of peremptory challenges in voir dire, or jury selection. The case offers as clear-cut an example of racial discrimination in jury selection as one is likely to encounter, yet it is precisely that characteristic that threatens to diminish the case’s utility with respect to combating such discrimination.

First, a brief primer on peremptory challenges: Unlike challenges for cause, which require counsel to articulate a reason why a challenged juror cannot decide the case free of bias, peremptory challenges allow potential jurors to be struck for any reason or no reason. This device enables the removal of potential jurors who are believed to harbor prejudices against one’s side, even though they don’t say anything directly revealing their prejudices. The exercise of peremptory challenges reflects an attorney’s hunches, based on such considerations as body language and vocal tone. But it can also reflect stereotyping about particular groups of people and their beliefs. More specifically, peremptory challenges have a long and ignominious record of being used to single out African-American jurors for removal, based on the stereotype that they are unwilling to convict African-American defendants.

The Supreme Court, in Batson v. Kentucky (1986), attempted to curtail the use of race as a primary factor in striking jurors, though it did not rule the use of peremptory challenges unconstitutional in and of itself. Once a defendant has claimed that the prosecution’s use of peremptory strikes was driven by racial considerations, the prosecution must then demonstrate that the strikes had a race-neutral basis, such as age, income level, or occupation. The judge then determines whether these proffered justifications are legitimate or mere pretexts for discrimination. This last stage is where Batson has failed to live up to its promise, as judges typically accept even the flimsiest justifications as valid. One can understand why judges might hesitate to single out prosecutors, with whom they work on a day-to-day basis, as being both bigots and liars about said bigotry. But the result is the frustration of Batson‘s purpose; if any dubious post-facto justification can pass muster, then blatant discrimination will go unpunished.

The prosecution behavior in the Georgia case just heard by the Court seems, based on its cartoonishness, as it were designed to test the Court’s willingness to label any behavior a Batson violation:

In notes that did not surface until decades after the trial, the result of a public records request, prosecutors had marked the names of black prospective jurors with a B and highlighted those names in green.

They circled the word “black” where potential jurors had noted their race on questionnaires. They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time.

Had the defendant’s attorney not attained access to the prosecution’s notes by invoking the state’s open records law, none of this behavior would have come to light. What was hidden in plain sight, in contrast, was the prosecutor’s request to the all-white jury to sentence Timothy Foster, an African-American accused of murder, to death to “deter other people out there in the projects.” But without the notes that had previously been unavailable to Foster’s counsel, this case would never have found its way to the Supreme Court, the prosecutor’s racially charged appeal notwithstanding.

Based on the tenor of oral argument, it’s difficult to imagine that the Court will rule against Foster. The unanswered question, however, is what victory might look like. Because most Batson claims aren’t backed by prosecutors’ notes providing explicit evidence of discrimination, any ruling that relies on the availability of such notes to make the case for a Batson violation will leave the status quo untouched, thereby allowing barely camouflaged discrimination to continue. At the same time, there has been no signal that the justices are inclined to rethink the constitutionality of peremptory challenges themselves, as Justice Thurgood Marshall argued in his concurring opinion in Batson.

If peremptory challenges are going to continue to be part of jury selection, then reform must address the willingness of trial judges to accept the purportedly race-neutral rationales provided by prosecutors. If trial judges find it too awkward to enforce Batson assertively because of their regular interactions with prosecutors, then one solution might be to impose meaningful oversight of trial judges’ Batson rulings. Under current precedent, Batson rulings receive great deference on appeal because the trial judge is able to witness the selection process firsthand, and thus is best-positioned to determine the plausibility of the prosecutor’s proffered race-neutral justifications. But videotaping voir dire could equip appellate judges to review Batson decisions more meaningfully. And appellate judges wouldn’t share trial judges’ concerns about alienating prosecutors. But it’s more likely that the Roberts Court will decide the easy case while declining to strengthen Batson to prevent discriminatory behavior that can’t be uncovered without what Foster’s attorney called an “arsenal of smoking guns.”

What opinion assignment reveals about Justice Thomas

Anyone who follows the Supreme Court even casually knows that Justice Clarence Thomas is reliably conservative. (I really need the “Match Game” studio audience to shout in unison, “How conservative is he?”) Numerous estimators lend quantitative empirical support to this claim. But for those who develop migraines from too much exposure to math, perhaps the most telling indicator of Thomas’s ideological position appeared briefly in Adam Liptak’s article in Friday’s New York Times that received more attention for its claim that Thomas’s majority opinions “contain language from briefs submitted to the court at unusually high rates.” Liptak writes:

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.

If this explanation is accurate, the takeaway is that on the most conservative post-New Deal Supreme Court, and perhaps the most conservative Court of the past 100 years, Thomas can’t be assigned any majority opinion of ideological consequence because his views are too extreme. This account does not mean that Thomas has lacked any influence on the Court; his concurring opinions on subjects like the Second Amendment have sometimes persuaded fellow conservatives to move toward his position. But individual justices make their own decisions about whether to write concurring or dissenting opinions. Majority opinions, in contrast, are usually not self-assigned, and patterns of opinion assignment can reveal much about how justices are perceived by their peers. The inferences drawn from Thomas’s assignments offer a compelling qualitative complement to the statistical estimates of his ideology; indeed, they suggest that Thomas is more of an ideological outlier than the quantitative estimates would indicate.

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