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The Kavanaugh Hearings Were a Missed Opportunity—For Both Sides

In Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, Politics, The Supreme Court on September 12, 2018 at 6:45 am

This article originally appeared here in The Intercollegiate Review.

By now you’ve heard about the combative spectacle that was last week’s Senate Judiciary Committee hearing for President Trump’s nominee to the U.S. Supreme Court, Judge Brett Kavanaugh. This momentous event was characterized not by political acumen, wit, cunning, or prudence, but by partisan obstruction, lawlessness, tantrums, hysteria, ignorance, frenzy, and anger.

Protestors screamed vulgarities and trite slogans, proving they were not interested in Kavanaugh’s responses or in substantive intellectual debate. Seventy of them were arrested on Tuesday alone. If anything, their recurring interruptions and crude histrionics gave Kavanaugh time to pause and think about his responses rather than tire out and let down his guard.

Online left-wing rabble-rousers peddled an absurd conspiracy theory about Zina Bash, a former clerk for Kavanaugh—only shortly before right-wing conspiracy theorist Alex Jones was banned from Twitter. Senator Cory Booker, a Democrat from New Jersey, publicly released documents that were allegedly confidential, claiming full knowledge of the possible repercussions of his act—namely, expulsion from the Senate. “Bring it,” Booker taunted Senator John Cornyn, who warned about the consequences of the supposed confidentiality breach. With unintended levity, Booker announced his “I am Spartacus” moment. Only the documents weren’t confidential after all; they’d already been approved for public release. Thus, Booker’s Spartacus Moment was merely a political stunt of faux bravery.

Why this hostility? Why these shenanigans?

A Deep Philosophical Clash

For starters, the midterm election cycle is upon us and the Mueller investigation appears to be nearing an end. Politicians like Booker are grandstanding for political gain as they consider running for president. Kavanaugh has been tapped to replace Justice Anthony Kennedy, moreover, who was the court’s so-called swing vote, whereas Justice Gorsuch filled Justice Scalia’s seat. Gorsuch’s appointment did not tip the balance of the court the way Kavanaugh’s might. Democrats also remain angry that Republicans did not act on President Obama’s nomination of Merrick Garland.

But something more is going on. We’re witnessing a philosophical clash regarding the proper role of the judiciary.

Kavanaugh identifies as an originalist and a textualist. Originalism comes in different permutations, having evolved since the days when it sought principally to recover the original intent of an author or authors. Its most prominent adherents today see it as an interpretive approach to the original public meaning of a text. It maintains that the words of the law should be construed according to their ordinary meaning as understood by a reasonable person at the time they were enacted.

Textualism, similarly, interprets words without resort to extratextual factors such as authorial intent or legislative history, focusing instead on the ordinary meaning of words as written. For the purposes of this piece, I use the term originalism without drawing distinctions between it and its close cousin textualism.

Getting Kavanaugh’s Originalism Wrong

Originalism so described seems uncontroversial on its face, but you wouldn’t get that impression from activists who have opposed Kavanaugh’s nomination. “Originalism conflicts sharply with American reality and American ideals,” writes Alan Brownstein, a retired law professor. He labels originalism “unamerican,” saying it accounts for the views of “only the people who were here in the 1780’s and 90’s or when specific constitutional amendments were adopted,” not for the views of the “vast new diversity of the American people today.”

This, I think, is wrong. Originalism properly understood is depolarizing, isolating judges from the political process rather than injecting them into it. The Constitution contemplates internal modifications, chiefly through the amendment process, which is, by design, difficult to facilitate. If originalism limits changes in law to those processes contemplated in the Constitution, as Brownstein alleges, then Brownstein has inadvertently labeled the Constitution “unamerican.” How can this founding document, which sets forth the basic framework of government for the United States, be “unamerican”?

Brownstein seems to imply that the amendment process, being slow and onerous, should not be the sole avenue for reform—that the courts ought to be a driver of progress when legislative solutions stall. The implication here is that the Constitution ought to be a “living” document that can be updated or improved through judicial correction and adaptation in cases. Judges should, accordingly, exercise quasi-legislative powers, promulgating binding rules and opinions to achieve justice or equality or to align with evolving standards of decency.

5 Reasons Everyone Wins with Originalism

Here’s why Brownstein is mistaken and why now more than ever a commitment to originalism would benefit both the left and the right.

First, originalism does not guarantee a particular political result. As Scalia, one of the original originalists, remarked, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” Scalia sometimes reasoned to conclusions that favored Democratic or liberal policies because the operative text so required.

Second, originalism fosters trust in democratic systems. Legislatures and the public need to know that newly enacted laws stand a chance to last as long as they comport with the Constitution. People lose confidence in their governing institutions if they believe the laws they passed can be easily tinkered with or discarded by unelected and hence unaccountable judges.

Third, although originalism may lead to harsh results in certain cases, it leaves it to the collective wisdom of the people, acting through their representatives, to alter the law to achieve fairness or justice. Concentrating revisionary lawmaking power in one judge or group of judges increases the probability that an uncommon or idiosyncratic conception of justice that does not represent the conception of the people will become binding over them.

Fourth, originalism makes the law clearer and more predictable, not subject to the unpredictable or arbitrary considerations of a judge or group of judges. When the law as written is applied, parties to a case and the general public can with reasonable sureness predict a range of possible outcomes. But if judges do not apply the law as written, the range of possible outcomes multiplies to the extent that the law itself becomes uncertain, and parties cannot rely on the law when they make everyday decisions. Vagueness in the law causes arbitrary exercises of governmental power. Clarity in the law restrains government actors from exercising powers in a manner that has not been formally approved by the legislature.

Finally, originalism ensures the independence of the judiciary. Kavanaugh has insisted that he is an independent judge. Democrats may dispute that claim, but they can’t dispute that originalism itself operates to secure judicial independence. Originalism is nonpartisan and does not consistently yield results that can be easily classified as conservative or liberal. Even jurists on the left have embraced originalism. Justice Kagan famously declared, “We are all originalists now.”

A week after politicos and activists celebrated the bipartisan spirit of Senator John McCain, the Kavanaugh hearings broke down into partisan pandemonium. Originalism should have been a unifying feature of the Kavanaugh hearings. It wasn’t. So here we are today, approaching the midterm elections in a country that’s as divided as ever. God help us.

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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

Judge Andrew Napolitano’s 2017 Commencement Address at Faulkner University Thomas Goode Jones School of Law

In Academia, Arts & Letters, Christianity, History, Humanities, Jurisprudence, Justice, Law, Law School, liberal arts, Libertarianism, Philosophy on December 5, 2017 at 6:45 am

Allen Mendenhall Interviews Anton Piatigorsky, Author of “Al-Tounsi”

In Arts & Letters, Books, Creative Writing, Criminal Law, Fiction, Humanities, Justice, Law, liberal arts, Literature, Novels, Oliver Wendell Holmes Jr., Philosophy, Writing on October 4, 2017 at 6:45 am

AM: Thanks for discussing your debut novel with me, Anton.  It’s titled Al-Tounsi and involves U.S. Supreme Court justices who are laboring over a case about an Egyptian detainee held on a military base in the Philippines. How did you come up with this premise for a novel? 

AP:  I was interested in the intersection between contemporary legal and political issues and the personal lives of the justices. I was particularly impressed by the ways in which the writ of habeas corpus has been used (and suspended) throughout U.S. history.

The Great Writ is a heroic call to responsibility—a demand made by the judiciary for the executive to live up to its obligations to imprisoned individuals. While it has obvious political and social ramifications, it also has philosophical ones. It encourages moral and psychological reckoning: what are our responsibilities to others?

I was excited about writing a novel where two strains—the political and the personal—overlap and blend. I realized that if I fictionalized the important 2008 Guantanamo Bay case Boumediene vs. Bush—by changing key events, decisions and characters—I could use it as the basis for a novel about the Court that explores all my interests.

Anton Piatigorsky

AM: How did you decide to change directions and write about the law?  Did this case just jump out at you?  Your previous writings address a wide variety of subjects but not, that I can tell, law. 

AP:  I came to the law, strangely enough, through religion. I’ve long been interested in how religion functions, and especially in the ways that secular systems mimic religious ones. When I started reading about American law and the U.S. Supreme Court, I saw those institutions as a part of an Enlightenment era secular religion. From this perspective, law is a system of rituals, codes and writings that helps establish an identity for a community, a set of shared values and beliefs, and a way for people to function within the world. I found that fascinating. It inspired all sorts of questions.

What are the general beliefs about people and the world that lie beneath the American legal system? How are those beliefs enacted in cases, courts, and legal writings? How do they play out in the rituals of the Court?  How do the justices of the Supreme Court —who are, in some ways, high priests of the legal world — reconcile conflicts between their personal beliefs and the foundational beliefs of the legal system they guide?

The fictional stories I wanted to tell about justices’ lives grew out of these general questions. Those questions also led me into an investigation of the main case before them.

AM: One of the most fascinating parts of the book, to me, is the Afterword, which consists of the concurring opinion of the fictional Justice Rodney Sykes.

AP: I have always loved novels of ideas, when a character’s emotional journey overlaps with their complex thoughts and beliefs. Whenever that type of fiction really works — as it does with Dostoyevsky’s The Brothers Karamazov — the character’s philosophy or worldview stands alone as a work of non-fiction. And so the novel becomes part fiction, part critical thought. It functions as a critique on ideas that circulate in the real world.

That’s what I hoped to achieve for Justice Rodney Sykes’s formal opinion in the novel’s Afterword. I wanted Rodney to reach a powerful critique of basic tenets of the American legal system. I wanted him to address what our responsibilities are (or aren’t) towards others in the legal system, and the problems with that system’s fundamental faith in individual actors. In his concurrence, Rodney takes an unorthodox and unlikely stance for a Supreme Court Justice, but that’s what makes it a work of fiction. A novel can be the perfect forum to discuss how a real person might come to a radical decision, and how that decision might revolutionize their thoughts and actions.

AM: Who are your favorite living writers?

AP:  I particularly admire J.M. Coetzee and Alice Munro. I think about their works often while I’m writing and editing my own.

Coetzee has written several fantastic “novels of ideas.” Both Diary of a Bad Year and Elizabeth Costello manage to incorporate far-reaching critiques into their larger stories about characters, and they do so while using imaginative formal techniques. I also love Coetzee’s cold and austere style in his less overtly intellectual books. They’re cleanly written, shockingly honest, and endlessly compelling.

Alice Munro—although it’s almost a cliché to praise her at this point—shows remarkable insight into her characters, gradually revealing their motivations, resentments and surprising decisions without ever erasing their fundamental mysteries as people. Her stories are complex formally, but in such a quiet way that I often don’t notice their structures until I’ve read them a few times. Her writing is a great model for how to show characters’ lives and decisions with efficiency and imagination while maintaining mystery.

AM: Do you intend to continue in the novel form in your own writing?

AP:  Absolutely. I would love to write more legal fiction, as well. I’ve spent years learning about the law, but know that I’ve barely scratched the surface. There are so many potentially interesting legal stories. I’m also at the early stages of a new novel, which is not explicitly about law, but does feel like an outgrowth of Al-Tounsi in certain ways.

AM: I worked for a state Supreme Court justice for over three years, and I agree: there are many interesting legal stories out there, and I’ve found that facts are often stranger than fiction.

AP:  It must be fascinating to work on the diverse cases that roll through a court. I can only imagine how many potential stories you and other lawyers, judges and court workers can recall—ideas for a million novels and movies and plays.

I think legal stories are particularly exciting for fiction because they distill big questions into concrete human situations and personalities. The giant subjects of guilt and innocence, love and betrayal, responsibilities towards others as opposed to ourselves, community or self-reliance, greed, jealousy and ambition all play out in specific facts and events, in the concrete details of a case. It’s just like in a novel. And since the American legal system is, in my mind, an application of an entire Enlightenment, philosophic worldview, these test cases and stories also pose huge philosophical, ethical and moral questions. It’s no coincidence some of the best novels ever written involve detailed legal plots.

AM:  That reminds me of something Justice Holmes once said: “Law opens a way to philosophy as well as anything else.”  But it sounds as if you and I would go further and say it might open a way better than many other things do.

AP:  Law is like applied philosophy; It puts general ideas to the test in the real world. If a philosophy remains theoretical it never really touches what it means to live it, inside it. The answers theoretical philosophy provides are always tentative.

A huge inspiration for my novel was the work of the late French philosopher, Emmanuel Levinas. While Levinas’s writing is often arcane and difficult to get through, I find his thinking to be a powerful and searing indictment of basic Enlightenment principles. While I was writing Al-Tounsi, I used Levinas’s insights—directly—to help me construct Justice Sykes’s final concurrence. It was hugely inspiring to find a concrete way to use this philosophy I have long loved. All the questions and problems I was interested in exploring were present in this genuine legal situation, in the constitutional habeas corpus case, Boumediene vs. Bush, on which I based my fictional case of Al-Tounsi vs. Shaw.

So, yes, I completely agree with you and Justice Holmes!

AM:  So glad we had this opportunity to talk.  Let’s do it again.  

 

 

Mens Rea and the Common Law

In Criminal Law, History, Justice, Law, Teaching on March 15, 2017 at 6:45 am

Allen Mendenhall

At common law, a victim had to prove four elements to demonstrate that a crime had occurred: mens rea (the mental element of a crime whereby intent or blameworthiness must be established), actus reus (the physical elements of a crime whereby the actions of a defendant must be established), causation, and damages or harm. This brief post concerns the first element, mens rea.

The concept of means rea involved three kinds of intent at common law: (1) general intent (the wish to do something prohibited by law), (2) specific intent (the wish to do something prohibited by law and to cause a particular result), and (3) transferred intent (which arises when the intention to harm one person results in harm to a different person).

The definition of intent traditionally included not just the results an actor wanted to occur when he contemplated taking some action, but also the results he knew would almost certainly occur from that action even if he did not truly wish to bring them about.

The landmark case of People v. Conley (1989) demonstrated that it was not always necessary, when establishing the elements of a crime, to show that an actor consciously desired the result of a particular harm as long as he knew that his conduct was virtually certain to cause general harm. A prosecutor may accordingly establish the element of intent by showing that a person consciously desired to occasion a particular harm or that he knew that his conduct was practically certain to cause harm.

Under the doctrine of transferred intent, a prosecutor may demonstrate that the defendant committed a crime if he intended to cause harm to one person but accidentally harmed a different person. This principle is also revealed in People v. Conley, in which an individual named William Conley attempted to strike Marty Carroll with a wine bottle but mistakenly struck Sean O’Connell instead. Because Conley attempted to commit a battery and did in fact strike someone as he intended, he was guilty of the crime of battery. The fact that his victim was not his intended victim was immaterial to his case.

The Trial Scene in Shakespeare’s “Merchant of Venice”

In Arts & Letters, Books, British Literature, Fiction, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Theatre, Western Civilization on August 31, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link.

Act IV, Scene I of William Shakespeare’s Merchant of Venice involves the climactic court scene in which Shylock and Antonio confront one another, in person, before Portia, who will determine Antonio’s fate.

At this point Portia has already revealed to Nerissa, her lady-in-waiting, her plan to “wear my dagger with the braver grace / And speak between the change of man and boy / With a reed voice, and turn two mincing steps / Into a manly stride, and speak of frays / Like a fine bragging youth.” She and Nerissa will cross-dress, in other words, and once “accoutred like young men” will act as though Portia is a doctor of laws, or a law clerk, administering justice and adjudicating disputes in the Duke’s Venetian courtroom.

Bassanio attempts to settle the case on Antonio’s behalf by tendering Shylock double and then triple the amount of the original loan, but Shylock unmercifully insists on exacting a pound of Antonio’s flesh. Portia appears to support Shylock, saying, “[T]here is no power in Venice / Can alter a decree established: ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state: it cannot be.” Although she says that Shylock’s “suit” is “[o]f a strange nature,” she submits that “in such rule that the Venetian law / Cannot impugn you as you do proceed.”

Praising Portia as a “Daniel come to judgment,” Shylock demands that a judgment be entered against Antonio immediately: “When [the bond] is paid according to the tenour. / It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound: I charge you by the law, / Whereof you are a well-deserving pillar, / Proceed to judgment: by my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond.” Antonio himself conveys a preference for swift judgment: “Make no more offers, use no farther means, / But with all brief and plain conveniency / Let me have judgment and the Jew his will.”

Portia readies the others for the judgment by telling Antonio to “prepare your bosom for [Shylock’s] knife.” That the bond calls for the pound of flesh to be exacted “nearest [Antonio’s] heart” draws attention to the metaphorical implications of the judgment and the plural meaning of the bond: it is not just the contractual relationship but the potential for friendship that is about to be carved apart.

Just before the judgment is to be perfected, Bassanio and Antonio profess their love for one another. Portia then explains to Shylock—turning his literalism against him—that the judgment calls for the removal of a pound of flesh but “no jot of blood.” If any blood should be drawn, then Shylock must forfeit his lands and goods to Venice. There being no way to cut a pound of flesh without drawing blood, Shylock finds himself in a precarious situation. Portia tells him that

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien

That by direct or indirect attempts

He seek the life of any citizen,

The party ‘gainst the which he doth contrive

Shall seize one half his goods; the other half

Comes to the privy coffer of the state;

And the offender’s life lies in the mercy

Of the duke only, ‘gainst all other voice.

In which predicament, I say, though stand’st;

For it appears, by manifest proceeding,

That indirectly and directly too

Thou hast contrived against the very life

Of the defendant; and thou hast incurr’d

The danger formerly by me rehearsed.

With these words, Shylock is defeated. The Duke pronounces that, as a consequence of the legal proceeding, Shylock shall render half his wealth to Antonio and half to Venice, but Antonio pleads that he will forego his share if Shylock converts to Christianity. The Duke concedes; Shylock acquiesces. The litigation comes to a close.

 

Claire Hamner Matturro Reviews Robert Bailey’s “Between Black and White”

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, Novels, Southern Literary Review, Southern Literature, The Novel, The South, Writing on June 15, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com.

The review originally appeared here in Southern Literary Review.

Following the success of his powerful debut legal thriller, The Professor (Thomas & Mercer 2015), Bailey offers a second, stunning story in the series. In his novel Between Black and White (Thomas & Mercer March 2016), Bailey establishes beyond doubt that he is an author to be read and reckoned with.

Between Black and White is closely tied to Bailey’s first book and involves several of the same characters. In The Professor, readers were introduced to aging former law professor Tom McMurtrie, who returns to the courtroom after being forced out of his teaching position at The University of Alabama School of Law. Tom teams up with Rick Drake, an impetuous young attorney and his one-time student. Together, in The Professor, Tom and Rick pursue a tense and dangerous wrongful death lawsuit.

While Tom and Rick dominate The Professor, another lawyer—Bocephus Haynes, or Bo—steps into that story at critical times to boost and support Tom. Bo is a bigger than life black University of Alabama football star who blew out his knee and, instead of retreating into depression over the loss of a pro football career, goes to law school. Tom is one of his professors, and the two develop a close friendship.

As much as The Professor was Tom and Rick’s story, Between Black and White is Bo’s story. In the prologue, we meet Bo as a five-year-old who watches members of the Ku Klux Klan lynch his beloved father. From the opening pages of Chapter One—which finds a disheartened, angry Bo getting drunk on the anniversary of his father’s brutal lynching—to the shocking, violent conclusion, Bo leaps off the pages with boldness and spirit. But like all well-crafted fictional heroes, he is flawed, and his failings land him in a courtroom as the sole defendant in a capital murder case.

His near fatal flaw: hunger for revenge. Obsessed with punishing the man who lynched his father, Bo shapes his professional life around that goal. After graduating with honors from The University of Alabama School of Law, Bo turns down offers at prestigious law firms. He returns to his home town, Pulaski, Tennessee, to a solo law practice as the city’s only black attorney—and to pursue the man he holds responsible for his father’s death. Too many people in the city of Pulaski know Bo is driven by his fixation to punish the man he blames for his father’s lynching. His wife has even left him because his drive to avenge his father’s murder has endangered their two children.

Since Bo was five years-old, he has blamed Andrew Davis Walton, a powerful businessman in Pulaski, for his father’s death. Once the Imperial Wizard of the Tennessee Knights of the KKK, Walton shook off the robes of the Klan and made millions in the stock market. Known as the “the Warren Buffett of the South,” he tried to make amends for his Klan actions.

Yet people have a long memory when it comes to the Klan—and no one more than Bo. Though Walton was hooded the night five-year-old Bo witnessed the lynching, Bo recognized Walton’s voice. But no one in law enforcement was ever willing—then or later—to prosecute Walton on the testimony of a child claiming to identify a voice.

On the 45th anniversary of his father’s lynching, Bo gets drunks in a local bar. Walton and Maggie, Walton’s aging, beautiful wife and one of the local landed aristocracy, seemingly accidentally run into Bo in the bar. Face to face with Walton, Bo threatens him in front of witnesses by quoting the Old Testament’s “eye for an eye.”

After the bartender breaks up the confrontation, Walton steps outside. But before Bo leaves the bar, Maggie returns to tell him that Walton is dying. She asks that Bo leave her terminally ill husband alone. Bo staggers out, lamenting to himself that Andy Walton was going to die before he could bring him to justice.

That night, someone shoots Walton and stages a mock lynching at the site where Bo’s father was lynched four and a half decades before.

Physical evidence points directly at Bo. Everyone in the legal community knows he had the motive and opportunity. Even before Bo recovers from his hangover, he is in jail. The prosecutor, a fierce woman attorney who has butted heads with Bo in court before, decides to seek the death penalty.

Pulaski was the birthplace of the Ku Klux Klan, and many residents and officials in the city strive to live that down. So when the murder, with its roots in the old KKK lynching, puts Pulaski and its Klan heritage back in the spotlight of national media, city officials attempt to pressure Bo to plead guilty and avoid the further media circus of a trial.

Bo refuses. He is innocent of murdering Walton—or so he claims, though no one in law enforcement believes him. He calls on his former law professor and close friend, Tom, to defend him. Reluctantly, Tom agrees and retains local attorney Raymond “Ray Ray” Pickalew, another former U of A football player. Rick, who is now Tom’s law partner, is dragged into the case as well.

Though Tom and Rick sense a setup, they struggle against multiple roadblocks—and the overwhelming physical evidence of Bo’s guilt—to determine who had a motive to kill Andy Walton and frame Bo. During their quest, Tom is assaulted and sidelined by his injuries; Ray Ray is a drunk with an attitude, and young. Overwhelmed Rick is left to unravel the seemingly unrelated pieces of a complex, emotional puzzle. Villains from The Professor return to taunt and threaten Tom and Rick, adding further intricacy to the plot.

Thus, Bailey sets up the classic formula of a legal thriller. Mind you, formula is not used as a derogatory term here. Shakespeare’s sonnets were formula and critics do not dismiss them in disparaging terms. As used here, formula simply refers to the structure and elements that define a genre or a literary style. In a legal thriller where the focus is on a criminal defendant on trial for his or her life, readers expect the odds to be stacked against the defendant. They expect the defense attorneys to be complicated, troubled, overwhelmed and conflicted. And, owing perhaps to the Perry Mason standard, readers expect a surprise witness and revelation near the close of the trial which allows the defense attorneys to prevail and the defendant to be found not guilty.

There are, of course, notable exceptions to this basic formula. Lincoln Lawyer and A Time to Kill come to mind. Both of those legal thrillers had guilty defendants, yet with vastly differing twists at the end.

Given the formulaic elements at play in the genre, a successful legal thriller author has to avoid creating a stale, mechanical plot that reads like a written version of a paint-by-number canvas. Yet the author has to keep the plot within the confines of the genre or publishers will scratch their heads and throw the manuscript on the reject pile.

In other words, authors working within a prescribed genre face a kind of delicate yet vicious circle. On the one hand, they must write within the parameters of their chosen genre. But, on the other hand, they have to do something new, exciting and fresh. It’s kind of like saying: Color within the lines. But don’t color within the lines.

Within this catch-22, the author has to give the reader something more—and something different. This Bailey does, and does with a bang.

Yet, having said that much, to say much more about the surprising, original twists of Between Black and White risks spoiling the plot. Thus, this reviewer will only observe that per the Perry Mason/John Grisham model, an unexpected witness with a startling revelation does pop up at the end of the trial. But just when the reader settles back to relax and believe that justice has been achieved, something complicated, violent and utterly surprising happens.

It isn’t just that Bailey knows how to surprise us, but he also writes well. Very well. Make no mistake on that point. His sentences are clear, clean, distinctive, and when they need to hit with a punch, they do. His pacing is excellent—an edge-of-the-seat, can’t-put-it-down momentum fuels the storyline from the prologue to the climatic ending. His characters are well-drawn, his sense of place and world-building excellent. The plot is intricate, but believable. There is redemption for some characters, resolution for others—and those that deserve neither are left to flounder in their own hell. Justice is achieved, albeit in a confused, violent way.

In short, Bailey wrestles what in less talented hands could have been a formulaic story into something wholly fresh, engaging, and ultimately rich and satisfying. This is a book you want to own and read.

Claire Hamner Matturo Reviews Robert Bailey’s “The Professor”

In Arts & Letters, Book Reviews, Books, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, The Novel, Writing on May 25, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com

This review originally appeared here in Southern Literary Review.

Move over, John Grisham, there’s a new kid on the legal thriller playing field.

Robert Bailey, an Alabama trial attorney and graduate of The University of Alabama School of Law, returns the kickoff for a 100 yard touchdown with his debut novel, The Professor. The football reference is apropos as the protagonist of The Professor was a member of Alabama’s famous 1961 National Champion football team, and the book opens with a guest appearance by venerated Alabama football coach, Paul “Bear” Bryant. Alabama’s 1961 national championship was the first of the six that Bear Bryant would win as head coach of the Crimson Tide, and the fighting spirit of that 1961 team resounds throughout the novel.

But one does not need to be a football fan or even a fan of legal thrillers to enjoy Bailey’s book as its writing is smooth, captivating and, in all the right places, emotionally moving—all the more impressive in that Bailey only took a single creative writing class while an undergraduate at Davidson College. According to Bailey, “We wrote four short stories, and the critiques I received were mostly positive.  It was definitely a confidence builder and a whole lot of fun.”

How did he go from taking just one creative writing class to writing a riveting debut of a legal thriller?

In law school, Bailey served on the law review, an honor generally reserved for those who can write well. Yet there is a football field of difference in writing an analytical, academic, footnoted and blue-booked law review article and composing an edge-of-your-seat legal thriller.

The bridge, then, between writing like a lawyer and writing like a top-drawer novelist was part inspiration, part studying other novels, and part the hard work of rewriting, redrafting, and revising. Bailey’s inspiration came from growing up in Alabama as a Bear Bryant fan and from wanting to write about a brash young “bull-in-a-china-shop” new attorney—a character whose experiences resemble Bailey’s own days straight out of law school. As for studying other legal thrillers and books, Bailey has said, “Yes, I have learned a lot from reading other novels.  Also, Stephen King’s instructional memoir, On Writing, was a big influence and inspiration.” And as for the hard work of revision and rewriting—it took Bailey eight years to finish The Professor, though he was practicing law, trying cases, and raising a family at the same time.

Bailey, a history major and a Huntsville, Alabama, native, is quite the Bear Bryant fan and a football historian. These personal interests enrich The Professor and play into Bailey’s creation of the lead character, Professor Thomas Jackson McMurtrie.

In some ways McMurtrie, the protagonist, is an unusual leading man. For one thing, he is 68 and his glory days on the famous Alabama football team of 1961 are long behind him. He faces serious health issues, mourns his late wife, and has been unfairly manipulated out of his position as an evidence professor at the University of Alabama School of Law into an unwanted early retirement. One of his former students—and a man he had called a friend—was complicit in the scheme to push him out as a law professor, and the betrayal wounds McMurtrie deeply.

Yet, in other ways, McMurtrie is the ideal leading man—for one thing his skills and instincts as a trial attorney form the perfect balance to his headstrong, volatile former student, Rick Drake, when they take on a trucking company in a wrongful-death case. McMurtrie, named after Thomas “Stonewall” Jackson, epitomizes what we would want in both a leading man and a lawyer—he is somewhat of a modern Atticus Finch, albeit with some different demons. Bailey writes in his author’s notes that he wanted to create a character that was a “man of exceptional integrity, strength, and class.” This Bailey has done.

Rick Drake, the lawyer version of a yin to McMurtrie’s yang, is more of what readers might expect in legal thrillers. A young lawyer, brash, over his head, yet passionate about his client and the case, Drake has more gumption and zeal than skills. He needs the experience and even temperament of McMurtrie. Drake also needs an expert in evidence, and McMurtrie literally wrote the textbook on evidence law in Alabama.

But here’s the rub: Drake and McMurtrie have a turbulent history. Drake was McMurtrie’s law student and the two came to blows—literally—after Drake hotheadedly dashed his trial advocate team’s chances of winning a national trial competition. McMurtrie was the team’s coach. After a video of the angry clash between the professor and the student was posted on YouTube, a conniving new dean at the law school used the incident as part of his plan to push McMurtrie out of his tenured position.

So, let’s just say Drake and McMurtrie are not best friends.

Yet each man knows the value of the other. Drake has the vigor McMurtrie fears is waning in himself. And McMurtrie has decades of knowledge and the calm, deliberate skills Drake lacks.

Thus, out of these conflicts and contrasting personalities, the characters of McMurtrie and Drake form an integral part of what makes The Professor work so well. This is a book about people, vividly drawn and fully realized, overcoming obstacles within themselves—as well as obstacles placed in their way by unscrupulous others.

Superb writing and engaging protagonists, though, are not the only things that make this debut so compelling. This is a bam-bam-bam book as far as plot goes, with plenty of action in and out of the courtroom. In the opening chapters, there is a horrific and fiery automobile crash, betrayal, suicide, murder, blackmail and enough suspense to keep the reader turning pages all night. There’s a good reason Winston Groom, author of Forrest Gump and another Alabama writer, calls The Professor “[g]ripping from the first page to the last.”

In a tightly woven plot that unfolds naturally in well-paced scenes, McMurtrie refers a former girlfriend (from the days before his marriage) to Drake for representation in a wrongful-death action after her granddaughter, daughter and son-in-law slam into a speeding eighteen-wheeler and die. McMurtrie recommends that she retain Drake in part because Drake grew up in the town where the lawsuit will be tried and McMurtrie believes in the home-court advantage. Yet McMurtrie also believes Drake can win the case—and he wants to help the struggling lawyer.

The defendant trucking company’s owner is an unscrupulous yet tough adversary who has the power to pervert the quest for hard evidence. Drake and McMurtrie have to prove in a court of law what they know is true—the trucking company had a consistent, deliberate pattern of forcing its truckers to speed in order to clock more miles and make more money for the company. Yet the trucking company’s owner doesn’t play by any rules, which gives him an apparent upper hand in disposing of key witnesses and the paper trail of evidence. Compounding the pressure on Drake and McMurtrie, the trucking company’s attorney is none other than McMurtrie’s former friend who betrayed him and helped oust him from his teaching career.

The stakes go beyond money. The plaintiff wants the world to know the truth about the accident—that her family died because of a concerted, greedy corporate plan that turned its eighteen-wheelers into dangerous weapons.

McMurtrie wants to avenge himself against his former friend and later betrayer, and he wants to help his former girlfriend. Not incidentally, he hopes to prove that even at 68, “The old bull still has a little gas in the tank.” And, maybe, he hopes to get his job as a law professor back. He definitely wants to help Drake and set matters right between them.

Yet in some ways, Drake is the one who has the most at stake. The YouTube of his shoving contest with McMurtrie painted him as an uncontrollable hothead and cost him his position at a big law firm. He is barely earning his rent as a solo practitioner. He questions himself. If Drake is going to survive as an attorney, he needs a courtroom victory. But beyond building his career, he needs to get right in his own head and prove he is capable of being a winning trial attorney—one who will not blow up and ruin the case as he did during the law school trial team competition. Drake is a young man, not fully formed as a man or an attorney, and this trial will make or break his maturation.

The trial scenes resonate with realism. Naturally so, given that the author is a practicing attorney and a shareholder with the law firm of Lanier Ford in Huntsville. Interestingly enough, the author defends—among others—trucking companies. Similar to his character Drake, Bailey was a winner in trial advocacy competitions while in law school.

The Professor introduces the character of Bocephus Haynes, McMurtrie’s favorite former student. Bocephus plays an important yet secondary role in the story as ally and emotional support, but he is set to return in a leading role in the sequel, Between Black and White. A third manuscript, now in the works, will take Drake and McMurtrie back to Tuscaloosa, and Drake’s story line and growth as a character will be explored further and in more detail.

 

Interview with Hubert Crouch

In Arts & Letters, Books, Creative Writing, Fiction, Humanities, Justice, Law, Literature, News and Current Events, Novels, Southern Literary Review, Southern Literature, The South on July 29, 2015 at 8:45 am

This interview originally appeared in Southern Literary Review.

Hubert Crouch

Hubert Crouch

AM: Thanks for taking the time to talk to Southern Literary Review about The Word, your second novel. Jace Forman, the protagonist of your first novel, Cried For No One, is back in this novel. How has your experience as a trial lawyer shaped Jace’s character, if at all? Is it even possible to identify where your legal background has shaped your character development?

HC: I leaned heavily on my experiences as a trial lawyer while creating Jace Forman. I actually know how it feels to try “high-stakes” lawsuits – the intense pressure, the sleepless nights, the perpetual gnawing in your stomach – because I have lived through them. What a trial lawyer goes through in his professional life has a profound impact on his personal life – again, I felt I was able to portray that realistically with Jace because personal experience was a good teacher. I am not saying Jace is autobiographical – he’s not. That being said, my ability to create his character was, in large part, the result of having been a trial lawyer myself.

AM: I’m not out­-of­-bounds in supposing that readers of Cried For No One will, like me, associate Ezekiel Shaw and the Brimstone Bible Church with Fred Phelps and the Westboro Baptist Church, which is featured in the book. Is there a deliberate connection?

HC: I taught Free Speech and the First Amendment to SMU undergraduates. One of the cases we discussed in class was Snyder v. Phelps. There were some lively exchanges between students over whether the Supreme Court got it right when they threw out the multi-million dollar judgment awarded to the Snyders. Had the Court gone too far in protecting free speech? Had the Court allowed a zealous sect to trample upon the rights of a family to bury their loved one in peace? Our classroom debate inspired me to change the factual scenario, inject a different religious issue and pit the conflicting positions against one another in a fictitious lawsuit.

AM: What made you decide to incorporate Leah Rosen and Cal Connors into the plot? Did you envision them at the outset, or did they come later, after you had already begun writing?

HC: Cal and Leah were characters from my first novel, Cried for No One. Leah continues her investigation into Cal’s legal misdeeds in the stand-alone sequel.

AM: As someone who has never attempted to write a thriller, I’m curious about how the intricate thriller plot falls into place. How much mapping or outlining do you do before beginning the writing process, and how often is the writing process interrupted by the need to adjust or revise?

HC: Before I wrote a word of the manuscript, I drafted a detailed, chapter-by-chapter outline, which went through a number of revisions. Once the outline was finished, I began writing the novel. Some might argue that having an outline is too confining. I get that. But for me, it is important to know where I’m ultimately going to end up before I start the journey. I find there is plenty of opportunity for creativity along the way.

AM: Texas. It’s big on the map and big in your book. You’ve been practicing law there for some time. How far back does your connection go?

HC: A long way. I graduated from Vanderbilt in 1973 and then attended SMU Law School. After receiving my law degree from SMU, I began practicing trial law in Dallas and that’s what I’ve been doing ever since. Although I grew up in Tennessee, I felt right at home in Texas. As the old adage goes, when you prick a Texan, he bleeds Tennessee blood.

AM: Why did you dedicate this book to your female law school classmates?

HC: One of my close friends and study partners in law school was female. She was brilliant, graduating number one in our class. And yet she received few offers from the top law firms in Dallas. There could be only one explanation – she was a woman. She, along with several other of my female classmates who had encountered a similar fate, took bold action and sued some of the major firms in Dallas. A settlement was reached which opened the door to countless female law school graduates afterwards.

AM: When did you start writing fiction?

HC: Over twenty-five years ago. I wrote a manuscript that has still not been published, although I consider pulling it out of the banker’s box it’s been in for years and giving it a read to see if it’s salvageable. After I shelved it, I was inspired to write my first novel, Cried for No One, by an actual lawsuit I handled involving a macabre grave robbery. I got up early each morning and wrote before going to work. The process took me years before I had a finished manuscript.

AM: Do you know what the future holds for Jace Forman? Can readers expect to see him again?

HC: I have enjoyed creating and getting to know Jace. Based upon the reviews, readers seem to like him and, if that sentiment continues, I will likely keep him around for a while.

AM: Last question, but two parts. How much research into the First Amendment went into this book? And how interested were you in First Amendment issues before you started into this book?

HC: I have studied the First Amendment, and the cases interpreting it, extensively. As mentioned above, I actually taught a course about it to SMU undergraduates. The drafters were so brilliant and far-sighted to come up with such an important enactment. We will forever be in their debt.

AM: Thank you again.

An Issue of Supreme Importance for 2016

In America, Conservatism, Judicial Activism, Judicial Restraint, Jurisprudence, Justice, Law, News and Current Events, Politics, The Supreme Court on April 22, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The American Spectator.

The time has come for politicians to announce their candidacy for president. In the following weeks we can expect more names to be tossed into the hat of presidential hopefuls. Already Senator Ted Cruz and Senator Rand Paul have proclaimed their desire to lead our country. Hillary Clinton made her candidacy official Sunday, and Senator Marco Rubio announced on Monday night.

The 2016 election is shaping up to be the most pivotal in decades, including for reasons not everyone is talking about.

It’s true that Republicans will challenge Obama’s legacy and that everything from Obamacare to payday loans will receive renewed and energetic scrutiny on the campaign trail.

Yet these won’t be the most pressing domestic issues facing the next president. Even more important will be the president’s judicial philosophy. That’s because the probability is high that the nation’s next chief executive administration will nominate at least three candidates to the U.S. Supreme Court.

Although confidence in the Court is at an all-time low, voters do not seem particularly concerned about the Court’s future composition. Perhaps the typical voter does not understand the role the president plays in nominating justices. Perhaps the goings-on of the judicial branch seem distant and aloof and out of the purview of our everyday worries. Perhaps most people are too short-sighted to consider the long-term and far-reaching effects that a president can have on the legal system. Whatever the reason, voters should re-prioritize. Conservatives should move this issue to the forefront of the debates.

When the president is inaugurated in January 2017, Justice Ruth Bader Ginsburg, widely thought to be in poor health, will be two months shy of her 84th birthday; Justice Antonin Scalia and Justice Anthony Kennedy will be 80; and Justice Stephen Breyer will be 78. Is it reasonable to expect these justices to serve out four more years under another administration?

Justice Ginsburg and Justice Breyer are considered members of the left wing of the Court whereas Justice Scalia is considered to be on the right. Justice Kennedy is famously known as the Court’s “swing vote.”

If a Republican wins in 2016 election, he could replace two liberal members of the Court, leaving just two other remaining: Justice Sonia Sotomayor and Justice Elena Kagan. If Justice Kennedy were also to step down during the next administration, a Republican president could further expand the conservative wing of the Court to seven, making room for a vast majority in contentious cases. If the right wing of the Court enjoyed a 7-2 majority today, for instance, there would be less media speculation about how the Court would decide cases on same-sex marriage, religious freedom, immigration, or campaign finance.

The Senate Judiciary Committee, which conducts hearings on presidential nominees to the High Court, currently consists of 11 Republicans and 9 Democrats. Republicans hold a 54-member majority in the Senate, the governing body that confirms presidential nominees to the Court. If these numbers remain unchanged or only slightly changed under a Republican president, that president would have wide latitude to nominate candidates who have tested and principled commitments to conservatism.

Let’s say the presidential election favored a Democrat. A Democratic president could simply replace the departing Justice Ginsburg or Justice Breyer with a jurist in their mold, in effect filling a liberal seat with another liberal. If a Democratic president were up against a Republican Senate, however, his or her nominees would have to appear less liberal than Justice Ginsburg to ensure their confirmation.

Replacing Justice Scalia, arguably the most conservative justice on the Court, with a liberal would be transformative. Although depicted as an unpredictable moderate, Justice Kennedy was nominated by a Republican and more often than not votes with the right wing of the Court. Replacing him with a liberal justice would be a victory for the left. It is possible for the left wing of the Court to gain a 6-3 majority if a Democrat succeeds President Obama.

It’s not inconceivable that in the time he last left, President Obama could name at least one successor to the Court. Barring some unforeseen illness or act of God, however, that is unlikely to happen this late in his presidency. Justice Ginsburg insists on remaining on the Court, and Justice Breyer still has some healthy, productive years ahead of him.

Judges’ and justices’ judicial philosophies are not easily pressed into two sides—conservative or liberal, Republican or Democrat—because law itself usually is not reducible to raw politics or naked partisanship, and a judge’s job entails more than interpreting the language of legislative enactments. Law deals with the complex interactions of people and institutions under disputed circumstances that are portrayed and recounted from different perspectives; therefore, law rarely fits cleanly within simplistic political frameworks.

For this reason, among others, it can be difficult to predict how potential justices will rule from the bench if they are installed on the Court. Chief Justice Earl Warren ushered in the progressive “Warren Court Era” even though he had served as the Republican Governor of California and, in 1948, as the vice-presidential running mate of presidential candidate Thomas E. Dewey. More recently President George H.W. Bush nominated Justice David Souter to the Court. Justice Souter tended to vote consistently with the liberal members of the Court.

The Senate confirmation process has grown more contentious in recent years, and that has made it more difficult for another Souter to slip by the president. But it has also watered down our nominees, whose lack of a paper trail is considered a benefit rather than evidence of a lack of conviction or philosophical knowledge (lawyers are trained, not educated). It has come to a point where if you’re confirmable, you’re not reliable, and if you’re reliable, you’re not confirmable. Chief Justice John Roberts’ acrobatic attempt to uphold the individual mandate in Obamacare on the ground that it was a “tax” reveals just how squishy and unpredictable our justices have become.

There is, of course, the trouble with categorizing: What does it mean to be a “conservative” or a “liberal” judge or justice? Our presidential candidates may have different answers. In January Senator Paul declared himself a “judicial activist,” a label that is gaining favor among libertarians. He appears to have backed away from that position, recently bemoaning “out-of-control, unelected federal judges.” Activist judges, at any rate, can be on the right or the left.

Ted Cruz has not advertised his judicial philosophy yet, but by doing so he could set himself apart because of his vast legal experience, including his service as the Solicitor General of Texas. Two potential presidential nominees, Marco Rubio and Lindsey Graham, are also attorneys, but Rubio’s legal experience, or non-experience, is subject to question, and Graham has been out of the legal field for some time—although he serves on the Senate Judiciary Committee and has intimate knowledge of the Senate confirmation prospects for potential nominees.

It matters a great deal what our presidential candidates believe about the hermeneutics and jurisprudence embraced by potential Supreme Court justices. In the coming months voters will have the power to force candidates to address their judicial philosophy. The candidates must articulate clearly, thoroughly, and honestly what qualities they admire in judges because those qualities might just shape the nation’s political landscape for decades to come.

Conservatives have much to lose or gain this election in terms of the judiciary. Supreme Court nominations should be a top priority for Republicans when debate season arrives.
Read more at http://spectator.org/articles/62383/issue-supreme-importance-2016

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