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Clement and His Options

July 26, 2007 8:16 PM

Four Senate Democrats today demanded the appointment of a Special Prosecutor to investigate Attorney General Alberto Gonzales for perjury, putting the spotlight on Solicitor General Paul Clement. A highly regarded solicitor general who's widely respected by the Justices and his peers in the Supreme Court bar (a pretty tough group to impress) for his first-rate advocacy, Clement is the most high-ranking official in the Justice Department not involved in the controversy.

He's therefore the one who will make the call. And in the wake of today's demands, he is, at the very least, likely to open an internal DOJ investigation into whether Gonzales’ committed perjury when testifying on the Hill.

That internal investigation would help guide his decision on whether to name a Special Prosecutor. But federal regulations, which were codified in 2003, give him almost absolute discretion to make the decision. Here's a quick overview.

The regulations replace the Independent Counsel Act, which Congress let lapse after Ken Starr’s investigation of President Clinton. They provide no deadline, and they specifically outline other alternatives short of a special prosecutor, including tapping DOJ career attorneys to handle the investigation.

According to the regulations, the Attorney General (here, the next-ranking official, Clement) can authorize a special counsel when he

“determines that criminal investigation of a person or matter is warranted” and that

a) prosecuting it internally would present a “conflict of interest for the Department or other extraordinary circumstances;
b) it would be in the “public interest to appoint an outside Special Counsel” to assume responsibility.

The regulations also include “alternatives available” to the Clement, such as starting the investigation with career DOJ staff.

Here are Clement’s options, now that the matter has been brought to his attention. He may:
 

  (a) Appoint a Special Counsel;
  (b) Start an initial investigation “consisting of such factual inquiry or legal research as (he) deems appropriate” in order to help make the decision; or
  (c) Reject the request by concluding that “the public interest would not be served by removing the investigation from the normal processes of the Department,” and that DOJ should handle the matter. In that situation, Clement can take “appropriate steps” to “mitigate any conflicts of interest, such as recusal of particular officials.”

Sources who helped write the regulations say Clement does not have to respond to the Democrats’ request formally or publicly. But one said that Senate Democrats ultimately could call him to testify on why he’s not appointing one, if he goes that route.

Regardless, this much seems clear: it's likely to be some time before we hear what Clement decides, since he must first marshall the facts.

July 26, 2007 | Permalink | User Comments (9) | TrackBack (0)

The Sky's Still Up There

July 20, 2007 6:38 PM

Kathleen Sullivan, the former dean of Stanford Law School (who would be on any Democratic president’s shortlist for the Supreme Court), said the other day that conservatives should be “dancing in the streets” at the end of the first full term of the Roberts Court. That is, she added--to much laughter in the crowd at the Heritage Foundation--if conservatives would ever dance in the streets.

Sullivan then proceeded to tick off some of the Court’s high-profile conservative victories: abortion, race-based decisions in schools, taxpayer standing, student speech, campaign finance. She didn’t agree with the reasoning in those cases, and she explained why she thought the Court got it wrong—and why she disagrees with the Roberts Court’s view that courts generally should be less willing to step in and effect change.

But her criticisms were grounded in law, not rhetoric—a much-needed liberal voice of clarity and calm at the end of a contentious term. I say much-needed because some of the liberal commentary on the Court since the justices packed up and left town has been almost breathtaking in its over-the-top hysteria. That does no one any favors: not liberals or conservatives—and certainly not the Court itself.

Let’s be clear here: There’s no question that the Court ended its term pointed in a more conservative direction with the addition of Justice Alito for O’Connor. Putting aside the overheated talk on the Left for a minute, it’s been outright baffling to listen to some conservatives try to argue the Court didn’t do all that much. Justice Scalia didn’t leave town depressed (like in years past) by end-of-term rulings, so why are conservatives downplaying what were significant rulings for them?

Sure, the Court didn’t overturn Roe—but it upheld the first-ever ban on a specific abortion procedure and indicated a clear willingness to allow other regulations and restrictions down the line. Sure, it didn’t overturn McCain-Feingold, but it limited its scope with a decision that is certain to lead to more attacks down the road. And, no, the Court didn’t get five votes for a color-blind Constitution, but it so dramatically limited when schools can consider a student’s race for diversity purposes that most school officials—notoriously litigation adverse—are going to scrap those programs.

Just say it: The Court turned to the Right. Some of those changes were modest—and not equal to the landmark rulings they were narrowing—but a turn nonetheless. And it was a turn conservatives had hoped for when Roberts and Alito took their seats.

As strange as some of the conservative reaction may be, though, it’s the outrage on the Left that’s most striking. And that’s what makes Sullivan’s contribution particularly important.

The latest liberal “sky is falling” alert came in the Charlotte Observer, when law professor Joseph Thai—presumably a smart man who went to Harvard and Harvard Law, clerked on the Supreme Court for Justices Stevens and White and is beloved by students—penned an editorial that casts him in the role of Chicken Little.

Now lots of people read the Charlotte Observer, and many think that law professors have some kind of special insight into what the Court does. They might actually take Thai at his word—even though his words mischaracterize what the Court did and distort the debate over where it is headed.

Thai flatly declares that “in one questionable decision after another,” the Court this term “made it dramatically more difficult, if not impossible, for ordinary Americans to have their day in court.”

Difficult, if not impossible, for ordinary Americans to have their day in court? With apologies to Justice Scalia, this assertion cannot be taken seriously.

And maybe I wouldn’t if Thai were the only one talking in a tabloid-style, Jerry Springer-esque tone. But other law professors also are shouting into the microphones, including the former dean of my great law school, Geoffrey Stone. I listened incredulously during a panel discussion I had recently with Stone—an obviously smart and engaging man who has made some important contributions in his day—as he repeatedly slammed the new Roberts Court for caring only about rich people, white people and corporations.

It’s like legitimate debate about law in the academy has been replaced with a wrestling smack-down. Next thing you know, law professors will be breaking fake chairs over each other’s heads.

But it’s the editorial pages that have really seen the action, where it’s like World Wrestling Entertainment (yep, the World Wrestling Federation changed its name—they’ve decided to be honest about it).

Take the New York Times’ Adam Cohen. Earlier this month he bemoaned the new “conservative activist” Supreme Court, which he said now has a majority willing to “use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.” All these decisions, he says, are “likely to make America a harsher place.”

Cohen and Thai are especially exercised about the case of Lilly Ledbetter, the Alabama woman who sued Goodyear for pay discrimination. The Court ruled 5-4 that she hadn’t filed her complaint within the 180-period the federal law required, prompting a sharp dissent from Justice Ginsburg, which she summarized from the bench.

Supreme Court practitioners on the Left and Right were taken aback by the dissent—and subsequent coverage of a case that, in practice, has limited impact. The Court did not make up this law—it interpreted it, and Congress is free to change it—as it is now in the process of doing (perhaps the point of Ginsburg’s bench statement). Moreover, Ledbetter was basically a reprise of a 30-year old decision written by Justice Stevens that had ruled against another woman on essentially the same grounds.

Cohen and Thai also talk about how the Court upended abortion precedent—even though it overturned no old cases and instead upheld a bipartisan act of Congress prohibiting partial-birth abortions—a law that prominent Democrats like Patrick Leahy and Harry Reid supported.

And then there are the race cases, when the court rejected student assignment plans in Seattle and Louisville that assigned students to schools based on their skin color. Cohen says the Court embraced the argument that the Constitution "protects society from integration." Thai criticizes those cases as “upending” Brown v. Board of Education. The cases were brought by white parents, to be sure—people whose kids couldn’t go do their neighborhood schools because of their skin color. But in Louisville, I was stunned to learn that even a veteran African-American Civil Rights leader like Mattie Jones thought the assignment plans were a terrible idea.

But here’s the money quote from Thai. Under the new Roberts Court, “if the spirit moved him, Bush may build an evangelical church tomorrow with taxpayer dollars, and no court could check him.”

There's one word for that: preposterous. Even a prominent liberal leader like Barry Lynn, of the Americans United for the Separation of Church and State, wasn’t outraged by the ruling rejecting taxpayer standing in a case challenging Bush’s faith-based initiatives. Plenty of other people—not just taxpayers—can challenge expenditures that violate the Establishment Clause—as building that evangelical church surely would.

Commentators have also talked of other decisions where the “little guy” fared badly against big business and the government. They imply that’s all the fault of Roberts and Alito. “The Bush administration got exactly what it wanted with Roberts and Alito,” Thai writes, “and the business lobby got exactly what it paid for.”

But that also misses the mark. Beyond the rhetoric, there’s this hard fact: many of those cases weren’t 5-4.

Thai, for example, accuses the Court of hurting consumers by tightening the requirements for pleading antitrust conspiracies—a significant ruling that already is being cited in all sorts of cases (including yesterday's dismissal of Valerie Plame's lawsuit against Cheney, Rove, et al). But it also is one that was decided by a 7-2 vote, with Justice Souter writing it.

Both Thai and Cohen write about how the court put limits on punitive damages in the Philip Morris case—and both conveniently fail to mention how the justices voted.

Here’s Cohen: “The justices invoked the due process clause in a novel way to overturn a jury’s award of $79.5 million in punitive damages against Philip Morris, which for decades misrepresented the harm of smoking. It is hard to imagine that Chief Justice Roberts and Justice Alito, who were in the majority, would have supported this sort of ‘judge-made law’ as readily if the beneficiary were not a corporation.”

Hmmm…well what about Justice Breyer, who wrote the decision? Or Justice Souter, who also joined it?

In the case over whether a police officer could be held liable for a high-speed chase and ramming maneuver that left a man paralyzed, Thai accuses the court of taking the “case from the jury” and “pronouncing the officer a winner.” He continues: “Little did the Senate realize that it was empanelling jurors as well as confirming justices.” But Thai fails to mention that case was 8-1 and garnered the support of Justices Souter, Ginsburg and Breyer.

There’s no question the Court made a conservative turn this year. There’s no question the addition of Roberts and Alito made a difference—as conservatives hoped and liberals feared. There’s no question that could have an enormous impact on American life. But let’s have an honest debate about what the Court actually did—and what that actually will mean.

The Court did move to the Right. If conservatives were prone to dance in the streets, this would be cause for at least a little jig, though not necessarily a full-scale chorus line. The moves were significant—no matter how conservatives try to downplay them. But they also were modest—despite what you may hear from the Chicken Littles with their hair on fire.

July 20, 2007 | Permalink | User Comments (37) | TrackBack (0)

When the Shoe Fits

July 17, 2007 5:02 PM

Talk about the shoe being on the other foot.

Senate Democrats are hauling out cots and preparing for an around-the-clock session tonight to bash Republicans for blocking a vote on a proposal to withdraw troops from Iraq. They’re solemnly intoning that the all-nighter is a critical way of calling attention to obstructionist Republicans who are blocking the will of the majority by refusing to end the debate and vote. And the Republicans are blasting right back that the all-nighter is nothing more than a stunt that will solidify their resolve.

Sound familiar? It is. We heard it all in 2003, when Republicans (then in control of the Senate) used a similar ploy—right down to the cots--against Democrats who were blocking President Bush’s judicial nominees. Ineffectual Republican leaders had sat by for months while energized Democrats picked off Bush’s judges—until the Big Night when they had the sleepover on the Hill. They hammered those irksome Democrats in the minority who were mounting the first-ever filibuster of appellate court judges.

And then everyone went home, and Democrats kept their resolve. The filibuster would prove enormously effective and keep some of Bush's nominees—Estrada, Kulh, Owen, Brown--from subsequently making it to the Supreme Court when the President had a chance to fill two vacancies.

But of course, in 2003, Republicans and Democrats had a different spin on the whole all-night session/filibuster thing. It’s almost like we’re looking at a big cartoon with talking points in those quote balloons above the senators’ heads. Someone sneaked in and switched the quotes all around.

Here’s what then-Senate Minority Whip Harry Reid had to say back in 2003, when Republican leaders announced their all-nighter to protest the Democrats’ refusal to allow a vote on Bush’s appellate court judges: “I have never seen such amateur leadership in all the time I’ve been in Congress.”

Here’s what Reid—now the Democratic leader—says today after announcing he is going to employ the very same strategy as those amateur Republicans four years ago: “This week, we’ll make Republicans answer for their refusal to allow an up or down vote on the most important issue facing our country today. We’re going to work today. We’re going to work tomorrow and work tomorrow night. We’re going to continue working on this until we get a vote.”

Sen. Chuck Schumer, a leader in the Democratic-led filibuster back in 2003 and had this to say during the Republican all-nighter back then: “What we’re having here is a rehash of arguments we’ve heard over and over and over again. It’s not going to change anything.”

And now, a decidedly more optimistic Schumer on the eve of the Democratic all-nighter: “We’re stepping up the pressure.”

Sen. Dick Durbin, who also helped lead the Democratic filibuster of Bush’s judges in 2003, had this to say back then: Republicans were failing to find compromises to “resolve issues the American people are really concerned about.” Instead, Durbin said, Republicans were holding an all-nighter and “grinding red meat for their conservative wing.”

And now Durbin, the Senate’s second-ranking Democrat in 2007, on Republicans who are threatening filibuster: “If this were a majority vote, the vote of the Senate would reflect the majority feeling of the American people.”

Republicans are playing the same game. Minority Leader Mitch McConnell complaining this week about the Democratic all-nighter: “I think it is theater and bad theater at that. We are happy to report to work, and they could have the debate in the daylight or the evening, whatever they prefer.”

But in 2003, McConnell supported the all-nighter on judges and blasted Reid for his “callow, petulant characterizations” of the Republican leaders who were organizing it.

And finally, here’s Sen. Orrin Hatch four years ago, when Republicans were in control. He was mighty critical of the Democrats for their filibuster: “The only reason they won’t allow an up or down vote…is that they know they would lose.”

Or wait, was that Dick Durbin this week?

July 17, 2007 | Permalink | User Comments (16) | TrackBack (0)

Term limits

July 05, 2007 6:33 PM

The second term of the Roberts Court was notable not only for the fewest decisions issued in recent Court history, but also its sharp turn to the right. You can read my analysis here. And for a slightly contrary view of the Court's mixed decision on the school assignment plan in Kentucky, read this profile of Louisville's veteran Civil Rights activist Mattie Jones and her surprising reaction to the victory of the plantiff in that landmark case, Crystal Meredith. You can watch our Nightline story on the two women by clicking here. By the way, if you find yourself in Louisville and are hungry for some real Southern home cooking, check out Big Momma's, where "everything is special." Warning: Though Big Momma cooks up five bushels of greens every Sunday, they usually sell out within two or three hours of her noontime opening!

July 5, 2007 | Permalink | User Comments (2) | TrackBack (0)