ProfessorBainbridge.com

Alito's "Extremism"

Seth Edenbaum left this comment on my blog:

And Spousal Notification isn't extreme?

The reference is to SCOTUS nominee Sam Alito's decision in the Casey decision, in which he would have upheld Pennsylvania's srtatute requiring spousal notification before an abortion may be performed. The answer, of course, is that such a requirement is not an extreme view in American society. To the contrary, as Jim Lindgren demonstrated today, a majority of Americans supported spousal notification laws. Of course, calling a majority position "extreme" is classic paternalistic liberal doublespeak. Using constitutional inkblots and extra-constitutional penumbras to invalidate laws supported by such majorities is, at best, judicial legislating.

It's a bird. It's a plane. No. It's Superprecedent!

One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting. ( Link)

It looks like the Democrats will accomodate us. Charles Schumer, for example, proved once again that the most dangerous thing one can do in Washington is to stand between Schumer and a microphone. Indeed, Alito prompted the very worst in Schumer:

Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

In other words, Schumer wants you to believe that Alito will send Rosa Parks back to the back of the bus (presumably after exhuming her). And then Schumer has the gall to call Alito extreme and divisive! Of course, Schumer does have expertise in spotting an extreme and divisive individual, since he sees one in the mirror every morning.

So: Let's get ready to rumble!

It's Alito

President Bush has nominated 3rd Circuit judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court. I think it's a great choice. Alito is everything Harriet Miers was not: An experienced jurist. Prosecutorial and government experience. Relatively young (55). Stellar educational credentials (Princeton and Yale). A committed conservative whose track record earned him the nickname Scalito. (Wikipedia has details on some of his decisions.)

Anticipating Alito's nomination, Larry Ribstein wrote:

... it’s important we get a judge who will decide business cases with some sensitivity to the value of free markets and the problems firms face from litigation and regulation.

Based on a quick check Alito is such a judge.  Although he may not be the nominee, I think it’s worth briefly discussing some of Alito’s opinions, at least to indicate what a business-friendly justice might look like.  ...

[Analysis of cases omitted]

... Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

Alito isn’t my first choice.  In a perfect world I would have Frank Easterbrook or Edith Jones.  But, unlike Miers, he actually has a long record on these issues and not just tea leaves, and the record is a good one.  ...

Altio wasn't my first choice either (Mike McConnell was). But this is a solid pick that should unite the base behind it.

Update: One of my (many) objections to Harriet Miers' nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to." Indeed.

This is a fight we can afford. It's the right fight. Those of us who oppose Miers need to keep on fighting. (Link)

It looks like the Democrats will accomodate us. Charles Schumer, for example, proved once again that the most dangerous thing one can do in Washington is to stand between Schumer and a microphone. Indeed, Alito prompted the very worst in Schumer:

Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

In other words, Schumer wants you to believe that Alito will send Rosa Parks back to the back of the bus (presumably after exhuming her). And then Schumer has the gall to call Alito extreme and divisive! Of course, Schumer does have expertise in spotting an extreme and divisive individual, since he sees one in the mirror every morning.

So: Let's get ready to rumble!

How do we fight this battle (asks Patterico)? I've speculated before that one might appropriate model the nomination process as a chicken game:

Think James Dean. Here's one description:

Two hooligans with something to prove drive at each other on a narrow road. The first to swerve loses faces among his peers. If neither swerves, however, a terminal fate plagues both.

How do you win a chicken game? If I am one of the drivers, I need to convince the other driver that I am not going to swerve. In his book The Strategy of Conflict, Thomas Schelling suggests a precommitment strategy: i.e., "power through binding oneself." In order to convince the other driver that I will not swerve, I need to use a precommitment device. What then do I do? The classic answer is that I make a big deal out of visibly throwing my steering wheel out the window. It sends the following signal to the other driver: "I'm going to win at all costs. I can no longer swerve. So if you want to live, you have to be the one to swerve. What's it going to be? You have the last clear chance."

If I'm right that the chicken game is a useful model for the nomination impasse, the task ... is to figure out the equivalent of throwing the steering wheel out the window.

I support the right of Senators to filibuster judicial nominations, albeit while believing it should be limited to rare and exceptional cases. I supported the filibuster deal largely because it limited the filibuster to such cases.

The so-called Gang of 14 should conclude that Judge Alito's nomination is not the exceptional case that would justify a filibuster. He is staunchly conservative, but is clearly in the Scalia and Thomas mold, and as such is well within the mainstream of modern legal thought. To filibuster Alito is to say you would have filibustered Scalia and Thomas.

What if the Democrats in the Gang of 14 go wobbly on the deal? At that point, they've started a chicken game. In response, the GOP members of the Gang of 14 should throw the steering wheel out the window by committing in writing to voting to support the elimination of the filibuster. My guess is that the Dem Gang of 14ers will then cave, thereby preserving the filibuster while also confirming Alito, which is my personal win-win scenario.

In sum, the nuclear option of repealing the filibuster is kind of like nuclear weapons. It's a deterrent that should never be used. Indeed, one could say the same thing about the filibuster itself.

Skeel on Hedge Funds

My friend U Penn bankruptcy law scholar David Skeel has a skeptical article in the latest Legal Affairs on hedge funds. Money quote:

Hedge fund misbehavior looks ominously like the edge of the next wave of financial scandals. While many top executives of Enron and WorldCom?and the investment bankers and accountants who advised them?have been punished or soon will be, the scandals they perpetrated never prompted a thorough rethinking of how American markets should work, and how best to preserve the markets' integrity. After 25 years of deregulation in financial, airline, and other industries, a high-velocity, service-oriented economy has given the wealthiest Americans more money than ever. They are pouring it into hedge funds, whose whiz-kid managers are guided by an overriding principle: Multiply the money, any way you can.

Who's to blame for the Miers debacle?

Harry Reid and Hugh Hewitt find ground for agreement: Harriet Miers.

SEN. HARRY REID, (D): The radical right wing drove this woman's nomination right out of town.

Hugh Hewitt: The center of the Miers opposition was National Review's blog, The Corner, and another blog, ConfirmThem.com, both with sharp-tongued, witty and relentless writers. {Prof. B: Hey! What am I? Chopped liver?} They unleashed every argument they could find, and the pack that followed them could not be stopped. Even if a senator had a mind to urge hearings and a vote, he had to feel that it would call down on him the verbal wrath of the anti-Miers zealots.

Tempting as it is to indulge in a bout of blogosphere triumphalism, I have to remind Hugh that not so many days ago he was dismissing "the verbal wrath of anti- Miers zealots" as essentially toothless:

The upside of voting against Miers for a senator is so limited as to be almost non-existent in the real world of politics. The promises of glorious battles with the Dems and the break- up of the Gang of 14 means to them shattering their comfortable worlds and opening themselves up again to the enormous pressures that built throughout the spring. To those who, like Senators Graham and DeWine, took the most heat for the Gang of 14 deal, or like Senators Chafee and Snowe, facing re-election with restive conservative bases, or even stalwart Jon Kyl, facing a deep pockets opponent in Arizona, smashing up the president nominee just doesn't figure to be a good move. Try explaining to the Arizona Pro-life Network why Miers wasn't good enough.

Or they can risk the wrath of the Cato Institute and the "not one of us" caucus. ... You don't get elected to the Senate by banking on the loyalty and support of opinion makers who are in the process of displaying their willingness to turn on a dime and compare the president's nominee to Caligula's horse.

Did Hugh underestimate the power of the blogosphere? Or was something else going on?

In fact, if I had to guess based on what I've seen in the press and heard through the grapevine, I'd say that Miers quit because the Senate GOP caucus had sent the message that she was unconfirmable due to a combination of lack of qualifications and uncertain conservative credentials. The word on the street is that Miers bombed in interviews with Senators and that she wasn't cutting it in her murder boards. Toss in public displays of questionable skills, such as those abysmmal 1993 speeches or the inadequate Senate Judiciary Committee questionnaire. Add to that set of problems the growing questions about her conservative credentials, which led evangelical/social conservatives in groups like Concerned Women for America to come out against Miers, and you've got problems way beyond anything the blogosphere could drum up.

In sum, it is specious to blame the blogosphere for the quagMier. There is only one person who is to blame for this debacle. His name is George W. Bush.

New Paper on Creditor Rights in the Verge of Insolvency

I've posted a new paper to SSRN entitled Much Ado About Little? Directors' Fiduciary Duties in the Vicinity of Insolvency. Here's the abstract:

Where the contract between a corporation and one of its creditors is silent on some question, should the law invoke fiduciary duties or other extra-contractual rights as a gap filler? In general, the law has declined to do so. There is some precedent, however, for the proposition that directors of a corporation owe fiduciary duties to bondholders and other creditors once the firm is in the vicinity of insolvency.

Courts embracing the zone of insolvency doctrine have characterized the duties of directors as running to the corporate entity rather than any individual constituency. This approach is incoherent in practice and unsupportable in theory. Courts should focus on whether the board has an obligation to give sole concern to the interests of a specific constituency of the corporation. The leading argument for imposing a duty on the board running to creditors when the corporation is in the vicinity of insolvency is the claim that shareholders will gamble with the creditor' money.

This Article demonstrates that this argument is unpersuasive. It is director and manager opportunism, rather than strategic behavior by shareholders that is the real concern. Because bondholders and other creditors are better able to protect themselves against that risk than are creditors, there is no justification for imposing such a duty. This article also argues that the zone debate is much ado about very little. The only cases in which the zone of insolvency debate matters are those to which the business judgment rule does not apply, shareholder and creditor interests conflict, and a recovery could go to directly to those who have standing to sue. In those cases, as this Article explains, there is a strong policy argument that creditors should be limited to whatever rights the contract provides or might be inferred from the implied covenant of good faith.

I'll be presenting the paper at a University of Maryland law school conference next week.

"It's not personal, Sonny. It's strictly business."

The Miers nomination battle was a fight between friends and allies. I come out of it relived with the result, but sorry that we had to go through this internicine battle. For my part, it was always business, not personal. It was a matter of principle. And of sending President Bush a message of cumulative dissatisfaction with the sorts of issues discussed in the next post down.

The good news is that nobody has to take the ride Tessio took. So I'd like to send a shout out to friends like Hugh Hewitt and Beldar for having fought honorably in a cause in which I know they sincerely believed. Here's hoping we'll be on the same side of the next round.

Post-Miers

I'm stuck in dial-up country for the next couple of days. In order to make sure the beast was fed, I did save up some posts for you using time delay date stamping, but new material will have to be pretty bare bones.

Two thoughts on Harriet Miers' withdrawal. First, in too many respects, President Bush has not governed as a conservative. Sarbanes- Oxley. McCain-Feingold. Iraq. Spending. You name it. The Miers nomination was, for many of us in the conservative movement, the straw that broke the camel's back. At this point, the onus is on the President to repair his relationship with the base, not the other way around. It may be, as some have argued, that we conservatives bought a pig in a poke back in 2000 and should have known it. And, perhaps, some of us were so desperate to win after 8 years of Clinton that we decided to overlook questionmarks. But if the polling data tells us anything, it is that the base is all the support Bush has left. He needs us at this point more than we need him and this episode proves it.

Second. I want to reiterate something I said back on 10/8 shortly after the Miers mess started:

... we'll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, "confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing," so that that "vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to."

If the President wants to win folks like me back, this is the fight he must lead. I'm not even saying he has to win, although I am confident he will if he puts his mind to it, I'm just saying he has to try. The Miers withdrawal gives him the chance for a do over. I trust he will seize the opportunity.

Cowen on CSR: Part 2

The other day, Tyler Cowen weighed in on the corporate social responsibility debate by opining that:

[Milton] Friedman has qualified his social responsibility claim for force and fraud, but what about negative externalities more generally (just ponder Tamiflu licensing if you want the appropriate headache)?

I'm not persuaded that the externalities issue gets us very far. Corporate conduct doubtless generates negative externalities. In appropriate cases, such externalities should be constrained through general welfare legislation, tort litigation, and other forms of regulation. It doesn’t follow, however, that corporate law’s fiduciary duties ought to deviate from the principle of shareholder wealth maximization. Instead, the rule ought to be – and is - that corporate directors are obliged to maximize shareholder wealth within the bounds of law.

Which 3%?

Hugh Hewitt is devoting today's show to the political consequences of a withdrawal or defeat of Harriet Miers. Earlier Hugh blogged:

Getting this vote wrong will be disastrous for the GOP, with possible consequences including Patrick Leahy returning to the chair of the Judiciary Committee for starters. Michael Barone was right to call it a 51-49 or 51-48 nation after last year's election. That crucial margin can be lost. In such a situation, the GOP cannot send even 3% of its supporters to the sidelines.

But what of those of us whose party loyalty was stretched to the breaking point by the Miers law straw, if I may mix metaphors? (See, e.g., Rod Dreher.) What if ramming through Miers causes us to go to the sidelines? And what if we make up a lot more than 3% of the GOP base?

Homework assignment: My reader's poll has been steady at 71% against the Miers nomination (go vote now), which oddly enough is almost exactly the same margin as in TTLB's blogger poll. Go find some polling data on how many self-identified Republicans regularly read blogs. Multiply that number by 71%. If the product is > 3% of the GOP base, my friend Hugh has a problem.

Miers' 1993 Speech

When the White House puts up a stealth candidate, it can't complain when people start parsing what little evidence we have about the candidate's views. The blogosphere is paying a lot of attention today to a speech SCOTUS nominee Harriet Miers gave back in 1993. Over at the NRO Corner, Rich Lowry and Ramesh Ponnuru squared off on the question of whether Miers endorsed judicial activism in that speech. I think Ponnuru has much the better of the argument:

You could adopt the argument that legislatures are to blame for not reining in the courts (an argument which I think is generally sound). You could go on to note that legislatures have not sought to reclaim their powers because they are perfectly happy to see the courts get the blame for tough decisions. [ProfB: Which is exactly right in my view.]

That's not the argument Miers makes. The argument she makes is that the courts can't be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. Eliot Spitzer, for example, often argues that it is necessary to pursue anti- gun policies through the courts because legislatures have failed to act. But it's hard to see how the courts are to distinguish between a) a legislative "failure to act," b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature's failure to enact what the judges wanted them to enact. {Update: ProfB: James Taranto reads the speech the same way: "Miers's criticism of politicians who shirk their duty is well taken, but if pols aren't doing their jobs, it's up to the voters to toss them out, not to judges to fill the breach. The notion that political inaction justifies judge-made social policy is the very antithesis of judicial restraint."}

Miers = Spitzer? Shudder.

Also from that Miers speech comes this observation:

The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's right to decide for herself whether she will have an abortion.

I wonder what you know who makes of that line? I know what David Frum thinks of it:

Jo Becker in the Washington Post reports on a 1993 speech by Harriet Miers in which the Supreme Court nominee argued that the concept of "self-determination" should guide judicial decisions about abortion and other values issues. This sounds very much like the reasoning that led Anthony Kennedy to reaffirm the Roe v. Wade precedent in his decision in Casey v. Planned Parenthood the previous year, 1992:

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Patterico has more on the speech and whether the self-determination line applied to abortion.

For a person who's supposed to be great at details, BTW, what's with the redundant phrase "ongoing debate continues"? Over at the Conspiracy, Eugene Volokh and Orin Kerr are squaring off as to the quality of the writing and thought reflected in the speech. Kerr's criticism thereof is echoed by Rich Lowry:

Miers was meant to be a stealth nominee, and now she sort of is again. Instead of a blank slate, she now is an incoherent slate.

And by Edward Whelan:

The badly muddled thinking in the speech that Miers delivered in 1993 (and that the Washington Post reported on today) is only the latest in a mounting pile of evidence that makes it implausible to hold out hope any longer that Miers will prove to be a sound judicial conservative. I don?t see how anything she says at her hearing ? or anything else that realistically emerges between now and then ? can offset this evidence.

Harriet Miers has earned the president?s trust and deserves our respect, and it is lamentable that some folks, in their deep disappointment at her nomination, have been excessive in their criticisms of her. But I see no reason why anyone concerned about the problem of judicial usurpation of the political processes should trust that a Justice Miers would be part of the solution.

The Latest White House Spin

Scott Ott reports:

As part of a third White House strategy to prop up the Supreme Court nomination of Harriet Miers, President George Bush announced today that Miss Miers is not "intellectually burdened" with detailed knowledge of the opinions of legal scholars regarding the Constitution.

"Justice Harriet Miers will read the Constitution like I would," said the president. "I want someone who has a fresh perspective on the actual words of the document, rather than on what Chief Justice Earl Warren Burger wrote in 1812."

The mind boggles.

Backbone

The GOP Senate caucus is showing some spine at last, with some starting to openly question the Harriet Miers nomination. And its not RINOs like Snowe or Chafee. It's stalwarts like John Thune, Jeff Sessions, and Sam Brownback. Plus maybe John Kyl and porkbuster Tom Coburn. That's 5 of the 10 GOP members of the Senate Judiciary Committee right there. Even Lindsey Graham piled on just a little:

Lindsey Graham, Republican of South Carolina and a Judiciary Committee member, acknowledged that senators who had met with Ms. Miers were telling colleagues that they had been unimpressed. "She needs to step it up a notch," Mr. Graham said.

Unless they opt for the Krauthammer solution or she hits a bunch of home runs during the hearings, my guess at this point is that she won't even make it out committee.

The Krauthammer Option Looms Larger

The NYT reports:

... conservatives who said they supported the administration's stance also said that the lack of information about Ms. Miers's work there could make it harder for her. "It is going to be incumbent on her to get as much information to Republicans as possible in response, particularly, to some of the fundamental constitutional issues," Mr. Thune said. "She has really got to raise the comfort level around here.

Ms. Miers faced challenges from Democrats as well. After meeting with her on Tuesday evening, Senator Russell D. Feingold, a Wisconsin Democrat on the Judiciary Committee, expressed frustration that she had declined to discuss any of her White House work. "There is a kind of a hard line coming from the White House on this that is actually to her detriment," Mr. Feingold said.

The Krauthammer solution just got even more likely.

Kelly on Miers

Here's the bottom line from columnist Jack Kelly's latest on Harriet Miers:

The president needs to pull the plug on this nomination. He needs to fill in this hole before it gets deeper. If he keeps digging, his enemies will fill it in over his head.

Now please go read the reasons he gives for so concluding. It's a devastating indictment.