This article is from the source 'nytimes' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at http://www.nytimes.com/2017/03/16/opinion/a-time-to-choose-for-the-supreme-court.html

The article has changed 2 times. There is an RSS feed of changes available.

Version 0 Version 1
A Time to Choose for the Supreme Court A Time to Choose for the Supreme Court
(about 9 hours later)
Members of the Senate Judiciary Committee are getting plenty of advice in the run-up to next week’s Supreme Court confirmation hearing for Judge Neil M. Gorsuch. I offered my own advice in the days immediately following Judge Gorsuch’s nomination: Senators should ask how he would have decided Supreme Court cases from the past. Don’t accept the standard nominee response that “I can’t answer because that question might come before the court.” It has already come before the court. (This suggestion is based on a 2006 article by two Yale law professors, Robert Post and Reva Siegel.)Members of the Senate Judiciary Committee are getting plenty of advice in the run-up to next week’s Supreme Court confirmation hearing for Judge Neil M. Gorsuch. I offered my own advice in the days immediately following Judge Gorsuch’s nomination: Senators should ask how he would have decided Supreme Court cases from the past. Don’t accept the standard nominee response that “I can’t answer because that question might come before the court.” It has already come before the court. (This suggestion is based on a 2006 article by two Yale law professors, Robert Post and Reva Siegel.)
As it happened, the Supreme Court promptly obliged a few weeks later by serving up a perfect specimen for an experiment on whether the modern confirmation process has any utility left: whether it can actually succeed in eliciting a nominee’s views.As it happened, the Supreme Court promptly obliged a few weeks later by serving up a perfect specimen for an experiment on whether the modern confirmation process has any utility left: whether it can actually succeed in eliciting a nominee’s views.
Buck v. Davis, issued on Feb. 22, was a death penalty case, although the question before the court was nowhere near as straightforward as whether a Texas death-row inmate named Duane Buck should live or die. Rather, the case lay deep in the weeds of state and federal habeas corpus — a “labyrinth,” as Chief Justice John G. Roberts Jr. put it in his majority opinion, which ordered a federal appeals court to consider the inmate’s appeal, “where it has wandered for the better part of two decades.” The contorted procedural status of the case may account for the fact that even as a rare Supreme Court victory for a death-row inmate, the decision received relatively little attention. Further, the facts were as unusual as they were disturbing, with the majority insisting that it was making no new law and the dissenters taking pains to point out that the decision was unlikely to affect anyone but Mr. Buck.Buck v. Davis, issued on Feb. 22, was a death penalty case, although the question before the court was nowhere near as straightforward as whether a Texas death-row inmate named Duane Buck should live or die. Rather, the case lay deep in the weeds of state and federal habeas corpus — a “labyrinth,” as Chief Justice John G. Roberts Jr. put it in his majority opinion, which ordered a federal appeals court to consider the inmate’s appeal, “where it has wandered for the better part of two decades.” The contorted procedural status of the case may account for the fact that even as a rare Supreme Court victory for a death-row inmate, the decision received relatively little attention. Further, the facts were as unusual as they were disturbing, with the majority insisting that it was making no new law and the dissenters taking pains to point out that the decision was unlikely to affect anyone but Mr. Buck.
In other words, the perfect case for a question to Judge Gorsuch, who now sits on the United States Court of Appeals for the 10th Circuit in Denver.In other words, the perfect case for a question to Judge Gorsuch, who now sits on the United States Court of Appeals for the 10th Circuit in Denver.
Texas law at the time of Mr. Buck’s sentencing in 1995 made a prediction of “future dangerousness” a necessary predicate for a death sentence. Evidently incited by a romantic breakup, he had gone on a murderous rampage, shooting his former girlfriend to death in front of her children, killing a male friend of hers and wounding his stepsister. Part of the defense argument against a death sentence was that a romantic entanglement of the sort that precipitated Mr. Buck’s crime wouldn’t happen again because he would be serving a life sentence in prison.Texas law at the time of Mr. Buck’s sentencing in 1995 made a prediction of “future dangerousness” a necessary predicate for a death sentence. Evidently incited by a romantic breakup, he had gone on a murderous rampage, shooting his former girlfriend to death in front of her children, killing a male friend of hers and wounding his stepsister. Part of the defense argument against a death sentence was that a romantic entanglement of the sort that precipitated Mr. Buck’s crime wouldn’t happen again because he would be serving a life sentence in prison.
But then the defense lawyer called as a witness a psychologist, Walter Quijano, whom the judge had appointed to evaluate Mr. Buck and numerous other defendants facing a potential death sentence. Dr. Quijano had reported that while on the facts of the case Mr. Buck was not likely to be violent in the future, his race, black, meant an “increased probability” because “there is an overrepresentation of blacks among the violent offenders.” Mr. Buck’s lawyer had read the report but called Dr. Quijano to testify anyway. While Mr. Buck was unlikely to be violent, the psychologist told the sentencing jury, race was nonetheless a factor “known to predict future dangerousness.” The prosecution reiterated this testimony at the close of its argument. The jury obliged by returning a death sentence.But then the defense lawyer called as a witness a psychologist, Walter Quijano, whom the judge had appointed to evaluate Mr. Buck and numerous other defendants facing a potential death sentence. Dr. Quijano had reported that while on the facts of the case Mr. Buck was not likely to be violent in the future, his race, black, meant an “increased probability” because “there is an overrepresentation of blacks among the violent offenders.” Mr. Buck’s lawyer had read the report but called Dr. Quijano to testify anyway. While Mr. Buck was unlikely to be violent, the psychologist told the sentencing jury, race was nonetheless a factor “known to predict future dangerousness.” The prosecution reiterated this testimony at the close of its argument. The jury obliged by returning a death sentence.
Dr. Quijano had testified in similar fashion at the sentencing hearings for eight other black defendants. When the situation came to light in one of the other cases in 1999, the Texas attorney general, John Cornyn (who is now a United States senator), declared that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.” The state dropped its defense of six of the death sentences, including one in a case that was then pending at the Supreme Court. But in all those cases, Dr. Quijano had been called to testify by the prosecution. This time, the state regarded Mr. Buck’s case as crucially different: Not only had the defense put on the testimony, but Mr. Buck’s lawyer in his state habeas corpus case had also failed even to raise the question of ineffective assistance of counsel during his trial, thus forfeiting the issue in the eyes of the state and federal courts that subsequently reviewed the case.Dr. Quijano had testified in similar fashion at the sentencing hearings for eight other black defendants. When the situation came to light in one of the other cases in 1999, the Texas attorney general, John Cornyn (who is now a United States senator), declared that “it is inappropriate to allow race to be considered as a factor in our criminal justice system.” The state dropped its defense of six of the death sentences, including one in a case that was then pending at the Supreme Court. But in all those cases, Dr. Quijano had been called to testify by the prosecution. This time, the state regarded Mr. Buck’s case as crucially different: Not only had the defense put on the testimony, but Mr. Buck’s lawyer in his state habeas corpus case had also failed even to raise the question of ineffective assistance of counsel during his trial, thus forfeiting the issue in the eyes of the state and federal courts that subsequently reviewed the case.
Mr. Buck’s final effort was a return to Federal District Court in 2014 with a procedural claim that “extraordinary circumstances” justified reopening the case. The District Court held that the circumstances were not extraordinary, but that even if they were, the case couldn’t clear the high bar for proving a violation of the Sixth Amendment right to the effective assistance of counsel. Under the Supreme Court’s precedents, a defendant making such a claim must show both “cause and prejudice,” meaning not only that the lawyer’s representation was deficient (“cause”) but also that there was a reasonable probability that, with adequate representation, the outcome would have been different (“prejudice”). The District Court concluded that while Mr. Buck’s lawyer was indeed deficient, the “horrific” nature of the crime meant that “the introduction of any mention of race was de minimis.” In other words, it didn’t matter. The United States Court of Appeals for the Fifth Circuit dismissed Mr. Buck’s appeal, finding his case “not extraordinary at all.”Mr. Buck’s final effort was a return to Federal District Court in 2014 with a procedural claim that “extraordinary circumstances” justified reopening the case. The District Court held that the circumstances were not extraordinary, but that even if they were, the case couldn’t clear the high bar for proving a violation of the Sixth Amendment right to the effective assistance of counsel. Under the Supreme Court’s precedents, a defendant making such a claim must show both “cause and prejudice,” meaning not only that the lawyer’s representation was deficient (“cause”) but also that there was a reasonable probability that, with adequate representation, the outcome would have been different (“prejudice”). The District Court concluded that while Mr. Buck’s lawyer was indeed deficient, the “horrific” nature of the crime meant that “the introduction of any mention of race was de minimis.” In other words, it didn’t matter. The United States Court of Appeals for the Fifth Circuit dismissed Mr. Buck’s appeal, finding his case “not extraordinary at all.”
I’ve described the case at length (although greatly compressed, given its procedural complexity) because it’s important to see the landscape that lay before the justices last month. A web of precedents, statutes and procedural rules ensnares even the best-represented defendants who try to challenge their state-court convictions or sentences through petitions for habeas corpus in federal court. Still, the Supreme Court had agreed to hear Mr. Buck’s appeal after relatively brief consideration last spring. That was promising.I’ve described the case at length (although greatly compressed, given its procedural complexity) because it’s important to see the landscape that lay before the justices last month. A web of precedents, statutes and procedural rules ensnares even the best-represented defendants who try to challenge their state-court convictions or sentences through petitions for habeas corpus in federal court. Still, the Supreme Court had agreed to hear Mr. Buck’s appeal after relatively brief consideration last spring. That was promising.
In his majority opinion ordering the Fifth Circuit to give Mr. Buck a hearing, Chief Justice Roberts said Mr. Buck had shown not only “cause,” but “prejudice” as well. “We cannot accept the District Court’s conclusion that ‘the introduction of any mention of race during the penalty phase was ‘de minimis,’ ” the chief justice said, adding that “when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much airtime it received at trial or how many pages it occupies in the record.” He went on, “Some toxins can be deadly in small doses.”In his majority opinion ordering the Fifth Circuit to give Mr. Buck a hearing, Chief Justice Roberts said Mr. Buck had shown not only “cause,” but “prejudice” as well. “We cannot accept the District Court’s conclusion that ‘the introduction of any mention of race during the penalty phase was ‘de minimis,’ ” the chief justice said, adding that “when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much airtime it received at trial or how many pages it occupies in the record.” He went on, “Some toxins can be deadly in small doses.”
The chief justice observed that “Dr. Quijano’s testimony appealed to a powerful racial stereotype — that of black men as ‘violence prone.’ ” He said “it coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.” The fact that it was the defense rather than the prosecution that presented the racial testimony most likely made matters worse, he said, because while jurors understand that the prosecution is seeking a conviction and evaluate the government’s evidence accordingly, “when a defendant’s own lawyer puts in the offending evidence, it is in the nature of an admission against interest, more likely to be taken at face value.” It was “clear,” the chief justice concluded, “that Bush may have been sentenced to death in part because of his race.” The chief justice observed that “Dr. Quijano’s testimony appealed to a powerful racial stereotype — that of black men as ‘violence prone.’ ” He said “it coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.” The fact that it was the defense rather than the prosecution that presented the racial testimony most likely made matters worse, he said, because while jurors understand that the prosecution is seeking a conviction and evaluate the government’s evidence accordingly, “when a defendant’s own lawyer puts in the offending evidence, it is in the nature of an admission against interest, more likely to be taken at face value.” It was “clear,” the chief justice concluded, “that Buck may have been sentenced to death in part because of his race.”
The vote was 6 to 2, with a dissenting opinion by Justice Clarence Thomas that Justice Samuel A. Alito Jr. also signed. “Having settled on a desired outcome,” the dissent began, “the court bulldozes procedural obstacles and misapplies settled law to justify it.” This is a hugely insulting charge for two Supreme Court justices to hurl at six colleagues. The two were saying in effect that members of the majority not only got the case wrong, but they were not even performing a legitimate judicial function, “relying instead on rhetoric and speculation to craft a finding of prejudice.” Justice Thomas said there was “nothing” in the procedural rule governing the reopening of old cases that “suggests that race-based claims demand unique solicitude in this context.”The vote was 6 to 2, with a dissenting opinion by Justice Clarence Thomas that Justice Samuel A. Alito Jr. also signed. “Having settled on a desired outcome,” the dissent began, “the court bulldozes procedural obstacles and misapplies settled law to justify it.” This is a hugely insulting charge for two Supreme Court justices to hurl at six colleagues. The two were saying in effect that members of the majority not only got the case wrong, but they were not even performing a legitimate judicial function, “relying instead on rhetoric and speculation to craft a finding of prejudice.” Justice Thomas said there was “nothing” in the procedural rule governing the reopening of old cases that “suggests that race-based claims demand unique solicitude in this context.”
“Texas had good reason for treating this case differently from the others,” the dissent continued, adding that not only the state but also “society at large” has an interest in the “finality” of criminal sentences. The dissent ended by observing that “the court’s reasoning is highly factbound and the facts presented here are unlikely to arise again.” Let’s hope they’re right about that.“Texas had good reason for treating this case differently from the others,” the dissent continued, adding that not only the state but also “society at large” has an interest in the “finality” of criminal sentences. The dissent ended by observing that “the court’s reasoning is highly factbound and the facts presented here are unlikely to arise again.” Let’s hope they’re right about that.
So my question for Judge Gorsuch — after giving him ample advance notice so that he could study the case — is a simple one: Which side would he have been on?So my question for Judge Gorsuch — after giving him ample advance notice so that he could study the case — is a simple one: Which side would he have been on?
Some readers have assumed that my references to Judge Gorsuch in recent columns have been meant to convey opposition to his confirmation. That’s not true. I’m not opposed to his confirmation, at least based on what I know now. Lengthy reports from progressive groups endeavoring to show that he is “unqualified” only squander liberals’ credibility, which will be sorely needed for battles ahead in the post-factual era in which we find ourselves. That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question. I totally understand and share the Democrats’ anger over what happened. But assuming Judge Gorsuch’s satisfactory performance next week, it’s time to bring the Supreme Court to full strength, replacing one conservative with another (whom any Republican president would have strongly considered) and saving the Democrats’ fire for the big battles ahead.Some readers have assumed that my references to Judge Gorsuch in recent columns have been meant to convey opposition to his confirmation. That’s not true. I’m not opposed to his confirmation, at least based on what I know now. Lengthy reports from progressive groups endeavoring to show that he is “unqualified” only squander liberals’ credibility, which will be sorely needed for battles ahead in the post-factual era in which we find ourselves. That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question. I totally understand and share the Democrats’ anger over what happened. But assuming Judge Gorsuch’s satisfactory performance next week, it’s time to bring the Supreme Court to full strength, replacing one conservative with another (whom any Republican president would have strongly considered) and saving the Democrats’ fire for the big battles ahead.
I should be clear that I’m not saying the hearing should be pro forma or that the Democrats should take a pass on asking the nominee hard questions and making their own priorities clear. Quite the opposite. For all its faults, a Supreme Court confirmation hearing still matters. It marks the last — and for many nominees, the only — time that the nominee will have to listen politely to what our elected officials want him or her to hear. For successful nominees, the hearing will be the last time they are not in control of the agenda, the last time they are called to public account before disappearing, if they so choose, into a life-tenured cocoon where they need never again interact with the public except by staring down from the bench.I should be clear that I’m not saying the hearing should be pro forma or that the Democrats should take a pass on asking the nominee hard questions and making their own priorities clear. Quite the opposite. For all its faults, a Supreme Court confirmation hearing still matters. It marks the last — and for many nominees, the only — time that the nominee will have to listen politely to what our elected officials want him or her to hear. For successful nominees, the hearing will be the last time they are not in control of the agenda, the last time they are called to public account before disappearing, if they so choose, into a life-tenured cocoon where they need never again interact with the public except by staring down from the bench.
This year is the 30th anniversary of the titanic battle over President Ronald Reagan’s nomination of Robert H. Bork. The lessons from the bipartisan defeat of that nomination in the Senate are still being debated. In recent days, I’ve been thinking about one particular exchange from Judge Bork’s week before the Senate Judiciary Committee, a colloquy between the nominee and Senator Paul Simon, an Illinois Democrat. Senator Simon asked Judge Bork about a speech he had given two years earlier, in which the nominee said that “when a court adds to one person’s constitutional rights, it subtracts from the rights of others.” The senator asked, “Do you believe that is always true?”This year is the 30th anniversary of the titanic battle over President Ronald Reagan’s nomination of Robert H. Bork. The lessons from the bipartisan defeat of that nomination in the Senate are still being debated. In recent days, I’ve been thinking about one particular exchange from Judge Bork’s week before the Senate Judiciary Committee, a colloquy between the nominee and Senator Paul Simon, an Illinois Democrat. Senator Simon asked Judge Bork about a speech he had given two years earlier, in which the nominee said that “when a court adds to one person’s constitutional rights, it subtracts from the rights of others.” The senator asked, “Do you believe that is always true?”
“Yes, Senator,” Judge Bork replied. “I think it’s a matter of plain arithmetic.”“Yes, Senator,” Judge Bork replied. “I think it’s a matter of plain arithmetic.”
Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”
Judge Bork: “I think, Senator, that is not correct.”Judge Bork: “I think, Senator, that is not correct.”
A zero-sum theory of rights: In the weeks since Donald Trump’s inauguration, we’ve come ever closer to the zero-sum society that worried a leading Democratic senator a generation ago and struck a Supreme Court nominee as a matter of simple, inevitable math. The grant of nondiscrimination protection to transgender children, surely among the most vulnerable and harmless residents of our big country, is portrayed as having taken away rights from others — to do what, exactly? Undocumented immigrants have to be carted away while dropping their children off at school because their very presence among us, tolerated (and exploited) for decades, is deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut.A zero-sum theory of rights: In the weeks since Donald Trump’s inauguration, we’ve come ever closer to the zero-sum society that worried a leading Democratic senator a generation ago and struck a Supreme Court nominee as a matter of simple, inevitable math. The grant of nondiscrimination protection to transgender children, surely among the most vulnerable and harmless residents of our big country, is portrayed as having taken away rights from others — to do what, exactly? Undocumented immigrants have to be carted away while dropping their children off at school because their very presence among us, tolerated (and exploited) for decades, is deemed an affront to those of us lucky enough to descend from immigrants who got here before the gates slammed shut.
Four summers ago, after the Supreme Court declined to overturn a ruling in favor of same-sex marriage in California, I happened to be sitting at a meeting next to Theodore Olson, who had brought the winning lawsuit. Two of his clients called to tell him that they had just been married. He had tears in his eyes as he put down his phone and explained the interruption to the others at the table. “Ted, you have increased the sum of human happiness in the world,” I told him. And undoubtedly he had; that sum isn’t capped, and I would be very concerned about a Supreme Court nominee who thought otherwise.Four summers ago, after the Supreme Court declined to overturn a ruling in favor of same-sex marriage in California, I happened to be sitting at a meeting next to Theodore Olson, who had brought the winning lawsuit. Two of his clients called to tell him that they had just been married. He had tears in his eyes as he put down his phone and explained the interruption to the others at the table. “Ted, you have increased the sum of human happiness in the world,” I told him. And undoubtedly he had; that sum isn’t capped, and I would be very concerned about a Supreme Court nominee who thought otherwise.
I wouldn’t expect Judge Gorsuch to share with the Judiciary Committee his views on immigration policy, or whether Title IX protects transgender school children, or on marriage equality. But I would read him the colloquy between Senator Simon and Judge Bork. And I would ask: “Which side are you on?”I wouldn’t expect Judge Gorsuch to share with the Judiciary Committee his views on immigration policy, or whether Title IX protects transgender school children, or on marriage equality. But I would read him the colloquy between Senator Simon and Judge Bork. And I would ask: “Which side are you on?”