Showing papers in "William and Mary Bill of Rights Journal in 2001"

Comparing Judicial Selection Systems

Abstract: and Concrete Review. Most CCs can exercise review in the absence of a concrete case or controversy; many can exercise concrete review as well. The range can be large, from governmental actors (including executives and 29 Id. 30 See id. (manuscript at 4 tbl. 1). [Vol. 10: 1 COMPARING JUDICIAL SELECTION SYSTEMS What do these distinctions mean for our inventory? Primarily, they forced us to consider what sorts of courts to include in it. While many possibilities presented themselves, given the key difference between the two models namely, whether constitutional review is centralized or decentralized we thought it was most prudent to focus only on rules governing the highest constitutional courts (e.g., "supreme courts" in American-type systems and "constitutional courts" in European ones) in the societies in our sample. In this way, we avoid mixing apples with oranges, though in our analysis, we remain sensitive to the differences in "supreme" and "constitutional" courts and illuminate them where they seem particularly

The "Blue Slip": Enforcing the Norms of the Judicial Confirmation Process

Abstract: If there is any bright side to the unbelievably rancorous confirmation battles that marked the Clinton years - which are also inevitable in the Bush Administration - it is that they have exposed to public scrutiny customs and practices that enable individual Senators to wield a de facto veto over presidential nominees (and the defensive measures available to Presidents). After 1994, for example, when Republicans regained control of the House and the Senate, senators used the power of committee chairman and the "hold" to kill nominations for cabinet positions, department heads, ambassadorships, and judgeships on what seemed to be an unprecedented scale. For this, Republicans faced intense criticism. Now, recent controversies over President Bush's judicial appointments have brought to light another obscure Senate custom, the blue slip. In this essay, I will shed light on the blue slip, its relation to the protean concept of senatorial courtesy, and examine its function in the Senate's "advice and consent" role. In Part I, I reconstruct the operation and origins of the blue slip process; Part II discusses the recent flap over the blue slip occasioned by the announcement of Bush's first judicial nominees, whose selection was nearly overshadowed by the Republicans' loss of the Senate. I contrast the process's operation in the new Senate confirmation environment with earlier descriptions of it. Part III considers whether the process is consistent with the Constitution's allocation of power to appoint and confirm nominees to federal posts. While conceding that the blue slip finds no explicit sanction in the Constitution, I argue in Part IV that it functions as a mechanism to sanction a failure by the President to seek senators' advice on judicial nominees, not just their consent. Part V then examines the possibility for reforming this much-criticized process.

The Right of Expressive Association and Private Universities' Racial Preferences and Speech Codes

Abstract: In Boy Scouts of America v. Dale, the Supreme Court ruled that the Scouts has a First Amendment expressive association right to exclude gay adult volunteers. The reaction to Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents government from taking sides in the culture wars. "Progressives," including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it seems to deal a blow to gay rights. Progressives also fear that organizations that wish to discriminate against other groups will rely on Dale for constitutional exemptions from anti-discrimination laws. As a legal matter, however, Dale was not about the Kulturkampf between gay rights activists and their conservative opponents, nor was it about a general "right to discriminate." Rather, the underlying issue in Dale was whether a private, non-profit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite general liberal opposition to Dale, the opinion may protect some of the left's favorite causes. Part I briefly discusses the history of the expressive association right and its relationship to anti-discrimination law. Part II argues that Dale provides a constitutional defense to anti-discrimination laws by nonprofit organizations when the organizations' ideology requires discrimination. As discussed in Part II, both white and black racist and racialist groups have a right to exclude members of other races. Part III explains that the most significant nonprofit organizations with an ideological commitment to discrimination are not overtly racist organizations, but elite private universities that engage in racial preferences in favor of minority applicants. Private universities faced with reverse discrimination lawsuits may find constitutional respite in the right to expressive association if they are willing to admit that they engage in racial preferences. One way organizations protect their ability to express a particular message is by banning their opponents from speaking in their organizations. California's Leonard Law makes university speech codes illegal, and several state constitutions arguably do the same. Part IV opines that private university speech codes are protected against hostile regulations by the expressive association right recognized in Dale.

Religious Neutrality and the Death Penalty

Abstract: Cases involving the Establishment of Religion Clause predominantly emphasize religious neutrality. Believing this to be normatively correct, Professor Loewy argues for religious neutrality in capital punishment cases. In accordance therewith, he would uphold religious peremptory challenges where a juror's religious belief is related to her death penalty perspective. Professor Loewy agrees with the courts'general willingness to disallow religion as an aggravating factor while allowing it as a mitigating factor. This dichotomy comports with the neutrality principle because aggravating factors, in general, are limited whereas mitigating factors are unlimited.

The ABA's Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up on the Lawyers?

Abstract: This article concludes that Bush's decision to eliminate the ABA's prescreening role substantially reduces the ABA's ability to contribute valuable expertise to judicial selection. ABA committee members not only are likely to know the right persons to ask questions about potential candidates, but - knowing the temptations and soft spots of legal doctrine and procedure - are also able to ask the right questions. Furthermore, the ABA offers stable procedures for evaluating judicial qualification - which can remain constant throughout the governmental changes instituted as presidential administrations come and go. The Bush administration has resolved, however, that the ABA should be treated like other "political interest groups" because it "takes public positions on divisive political, legal, and social issues that come before the courts." Commentators have suggested that perhaps the ABA is not too political for the prescreening job, just on the wrong side of the political spectrum. To the extent that ABA's voice contrasts with those who have the President's ear, its contributions are especially important to exposing competing arguments about the merits of potential candidates. Experience teaches, moreover, that high-pitched political battles over judges will continue whether or not the ABA has a vetting role. The article argues, although the Bush administration is wrong in treating the ABA as just another interest group, the ABA would be prudent to heed its critics. Several changes in ABA procedures could cure the perception that the ABA uses judicial evaluations to implement its own public policy objectives. The solution thus is not to ax independent lawyers from judicial prescreening, but to improve their contributions through refined procedures.