Author: Gerard Magliocca


The Liu Confirmation Hearing

Yesterday I watched the Senate Judiciary Committee’s hearing on Goodwin Liu’s nomination for a seat on the Ninth Circuit.  As I’ve indicated in prior posts, I went to law school with Goodwin and fully support his confirmation even though we have a different view of constitutional law.  Aside from the usual political posturing and harping on confirmation battles past (at least they didn’t go back to Learned Hand), there were two things that caught my attention.

First, some of the senators and commentators seem confused about (or don’t recognize) the difference between the academic and judicial roles.  When students ask how I think a certain case should be decided, my answer is “I don’t know.  I’m a professor.  Not a judge.”  It’s not my job to decide cases.  It is instead to subject them to careful scrutiny, offers theories to reconcile conflicting decisions, and present historical or empirical information that places them in context.  More specifically, precedents are far more plastic when you’re a professor.  The proof of that is that every scholar who has a theory and is confronted with cases that are inconsistent with that theory either shrugs them off or says that the contrary decisions are wrong in a way that a judge could never do.

Why am I pointing this out?  Because it means that Professor Liu was entirely right to say that his articles are not a template of what he will do as a judge,  The accusation that he was running away from his views or undergoing a confirmation conversion is ridiculous.  Academics write for themselves.  A judge must take the views of his or her colleagues into account.  Academics are not bound by authorities.  A judge is.  Most important, academics rarely face consequences for what they write.  Judges do.  (This, BTW, is why Justice Scalia calls himself a “faint-hearted” originalist and recently dismissed academic interest in the Privileges or Immunities Clause as a joke in the context of actually deciding a case.)  This does not mean, of course, that Professor Liu’s academic writings are irrelevant to his candidacy.  It just means that they need to be considered in the proper light.

Second, I want to reiterate what I’ve said before–a President should receive deference for his judicial picks unless the candidate is unqualified or out of the mainstream of the President’s party.  The argument that Goodwin is unqualified is absurd.  Many GOP members of the Judiciary Committee (especially Senator Cornyn–you can look it up on Google) backed Harriet Miers (a nominee to the Supreme Court, not a circuit court) who was clearly unqualified, so I don’t find their critical comments especially convincing now. The fact that Professor Liu has argued only one case before a circuit court does not make him unqualified. I don’t think that Justice Thomas ever argued a case before a federal appellate court (though I must concede that I could be wrong about that) and he’s incredibly qualified.  And with all due respect, conservatives are simply not competent to judge whether a Democratic nominee is outside the mainstream of that party.  If liberal commentators or Democratic senators made that claim, then I would take that seriously.  So far, though, nobody from that side of the aisle has said anything critical about Professor Liu.

In the end, I suppose that Republican senators may conclude that it’s payback time for Miguel Estrada and other conservative judicial nominees who were wrongfully blocked during the Bush years.  Vengeance is a basic human instinct.  But I do not think that reasoned judgment supports such a conclusion.


Thomas Hart Benton

Next week I’ll be giving a lecture at Emory and Henry College (in Virginia) on Senator Thomas Hart Benton, who served from 1820 t0 1850 and in his time was considered the equal of Senators Henry Clay, Daniel Webster, and John C. Calhoun.  Benton was Andrew Jackson’s chief supporter on issues ranging from the Bank War to the Cherokee Removal, and was the closer thing to a constitutional theorist that the Democrats had (His speeches on legal questions are quite interesting even now).  By the time he left the Senate, however, he was at war with his party over the issue of slavery and dismissed as a heretic.  (Think Joe Lieberman, except much more so.)

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US News Law School Rankings

I wanted to make an observation about the rankings that were released yesterday.  Duke Law School achieved something truly remarkable.  All of their 2008 graduates (100%) were employed in the six months following graduation.  No other school — not even Harvard or Yale — managed this.  And to have that result as the stock market was imploding is even more amazing.

Or Duke’s claim is just . . . er . . . false.  But I would never accuse a Top 11 school of misrepresenting the facts.


Deference at Oral Argument

I’m reading Jeff Shesol’s new book on FDR’s Court-packing plan, and I learned something that I didn’t know. Through at least the 1930s, there was a tradition at the Court that when the Attorney General argued a case he would not be interrupted with questions from the bench.  I wonder how this practice got started and when it ended.  It’s amusing to think about that now — Eric Holder would get, what, 30 seconds of silence at most.


“What If” Symposium

I’m pleased to announce that the Indiana Law Review will hold its 2011 Symposium on counterfactuals in constitutional history.  I described this idea in the following post, but basically it involves asking people to pick their favorite plausible “What If” and talk about why it didn’t happen and how the law would have changed if it had happened.  I’ll post more details about this in the coming months, but if you might be interested in participating let me know.


Dormant Commerce Clause

As I reflect on my constitutional law course this semester, I think that my favorite topic is the Dormant Commerce Clause.  (“The one will all of the cases about garbage and milk?  Yes.”)  Why do I say this?

One reason is that this subject is an ideal way to introduce anti-discrimination law.  Dormant Commerce Clause doctrine, after all, is examining whether state discrimination against out-of-state residents (or in favor of in-state residents).  You could have facial discrimination or protectionism, but that can only be justified in rare circumstances (strict scrutiny).  You could have a law that is neutral on its face but is intended to discriminate, which also requires a strong justification (intermediate scrutiny).  Or you could have a law that is not intended to discriminate but imposes an unreasonable burden on interstate commerce (disparate impact analysis).  You can cover this framework on issues that are non-controversial before reintroducing (and contrasting) those ideas on the more heated ones involving race or gender.

Moreover, the Dormant Commerce Clause is a good way of introducing the fact that much of constitutional law is not in the text.  I find this more effective than starting with unenumerated rights (less controversial vs. more controversial).  The decision in Granholm about the interaction of the Twenty-First Amendment and the Dormant Commerce Clause is especially interesting, as the non-textual principle ends up trumping the textual one and raises all sorts of neat interpretive questions.


Research Mystery — I Need Your Help!

A key part of my examination of John Bingham’s life involves his relationship with Titus Basfield, an African-American college classmate who later became a minister.  In a study of Bingham written twenty years ago, Erving Beauregard claimed that Bingham and Basfield were lifelong friends and corresponded about political and legal issues.  Beauregard also quoted from some of those letters, which contained some interesting insights into Bingham’s thinking about the Fourteenth Amendment.

Here’s the problem–nobody knows where these letters are.  Beauregard (who is deceased) did not make copies of those documents and no other scholar has seen them.  They are cited as belonging to “Lloyd Martin, Portsmouth, Ohio,” but there is no other information.  Some suspect that these sources were fabricated, but I’m going to treat that as a last-resort explanation.  My working assumption is that this collection is privately held and that the trick is to track down what has happened to them and then make sure that they are made available to researchers.

If anyone has any insights about this, I’d be much obliged to hear them.


General Average and Takings

One of the maritime doctrines that I enjoy teaching is the general average.  This principle applies when cargo is voluntarily sacrificed by the crew in a successful effort to save a ship in distress (or when a ship makes a similar sacrifice to save the cargo).  Let’s say the master decides that he needs to throw cargo overboard to lighten the vessel and prevent it from sinking.  If this works, then the cargo owner who suffers a loss must be compensated by the vessel and the other cargo owners.  The compensation is calculated on a proportional basis depending on the respective values of the cargo and the vessel, with each party paying something and with the cargo owner who was affected also paying a share.  (In other words, the party who suffers a loss is not fully compensated.)

There is a fruitful analogy here to takings law.  The general average, like a taking, involves payment when property is used for the common good.  (Of course, the general average involves private owners rather than an acquisition by the state.)  There is an interesting paper that could be written comparing how these sea and land doctrines are applied.  Here’s an example.  In cases where property is taken in an emergency and successfully halts the danger, the property owner typically gets zero.  Why?  Because the thought is that the property would have been destroyed anyway (say by a giant fire or a disease).  In the maritime context, we say that the property owner who sacrificed should just not be compensated fully, but should get something.


The Confederate Constitution

Since the Governor of Virginia just declared April as Confederate History Month (because that’s the month they lost the war?), I thought I’d do a post about the Confederate Constitution.  It’s interesting to look at because it mostly apes the 1787 Constitution, thus the distinctions are pretty easy to spot. Here are some notable differences: Read More