The Federalist Society

Bar Watch Bulletin August 8, 2008

Heller, Individual Rights, Terrorism, Rule of Law, the ICC, and Judicial Criticism

August 8, 2008

The American Bar Association's Annual Meeting will be taking place from August 7-12 in New York City. As always, ABA Watch will be reporting live, providing you with highlights of the day's events.  To read more about resolutions that will be considered by the House of Delegates at this year's meeting or to learn about recent ABA activity, check out our latest edition of ABA Watch.

What follows are some highlights from today's sessions at the annual meeting.

The Second Amendment After Heller

Friday afternoon featured a panel sponsored by the Special Committee on Gun Violence entitled "The Second Amendment after Heller". The panel examined "the impact of the Heller ruling on existing laws, legislation, and litigation."

Alan Gura, who argued the Heller case for the plaintiff, said that the Second Amendment has "always been understood as an individual right-- and was at the forefront of people's minds in 1789." Only in 1939, after U.S. v. Miller was decided did people start discussing the right to bear arms as a collectivist one. Gura noted that the next gun rights case would be in Chicago, and would test the incorporation of the Second Amendment; he said that such a decision would "reconcile originalism and substantive due process."

Walter Dellinger, who argued for the government in Heller, claimed that the Court had been persuaded by "Alan Gura's rhetoric and had replaced James Madison's version of the Second Amendment with Charlton Heston's." The Second Amendment, according to Dellinger, was always understood to speak to the militia and was originally "a shocking allocation of power to state militias." Citing the religious scruples clause of Madison's original version of the Amendment, Dellinger said that the Amendment could only be read to apply to the militia. Referring to the lower court's decision, Dellinger maintained that "Judge Silberman's unregulated right is a libertarian ideal but that the Second Amendment is about the security of the state."

Dennis Henigan of the Brady Center also criticized the Heller opinion, "The decision is a laboratory story of the misuse of judicial power to get an ideological outcome. Heller is not quite as bad as Bush v. Gore, but it's pretty darn close." Henigan also said that "volumes will be written on how the majority disregarded text, history, and precedent." Noting that Scalia focused his opinion on the operative text of the Second Amendment rather than the preamble, Henigan called Scalia's approach "manipulative" and said it "violated the ancient rule that all words are meaningful-- this is ideology talking, not the Constitution." Criticizing the majority, Henigan said the decision "violated every principle of judicial restraint." Gura pointed out that Marbury v. Madison made it clear that the operative text is what is important and that judges need only look to the preamble if the operative text is unclear, which wasn't the case in Heller.

Mark Tushnet, the William Nelson Cromwell Professor of Law at Harvard Law School explained that Heller left many questions unanswered, such as the level of judicial review necessary to weigh Second Amendment claims, the types of weapons that would be permissible to regulate, and whether guns would be protected outside the home.

Individual Rights, Terrorism and the Rule of Law

Friday morning featured a panel sponsored by the International Law Section entitled "Individual Rights, Terrorism and the Rule of Law: The World After 9/11". The panel addressed "the role of international law as a source for U.S. law regarding the prevention of and punishment for terrorism"; "the legal status and rights of terrorism suspects and 'enemy combatants'"; "the legality of aggressive interrogation techniques (including torture); and "the legality of searches and seizures including warrant less searches and seizures."

William H. Taft IV, former legal advisor to the US Department of State and Of Counsel, Fried Frank, expressed concern about the Bush Administration, claiming that there was no need for the executive to assert discretion outside the discretion granted by Congress because Congress would have likely granted the power to begin with. He then claimed that "the administration is hostile to international law" and that the President has "disregarded treaty obligations--- most shamefully by engaging in torture." Taft lamented the administration's use of torture, asserting that "every state would have had supported the United States otherwise."

Gregory Katsas, the Assistant Attorney General for the Civil Division of the U.S. Department of Justice, discussed the Boumediene case, noting that the case was "not about the detention of citizens, not about the power of the government to detain, not about war crimes prosecution, nor about detainee treatment but was about procedure." He pointed out that the combatant status review trails and the Military Commission Act is "more protective of detainee rights than the Geneva Convention" Yet, the Court in Boumediene left a lot of questions unanswered and two hundred habeas reliefs claims have been filed in the DC circuit since.

David Crane, a professor at Syracuse Law, claimed that the United States had "seen tougher times" noting most of the major wars including the Cold War, and said, "We lost the moral high ground in the Mei Lei Massacre and it took us forty years to get it back and we lost it again in Abu Ghraib and it will take us another forty years to get it back again." He later claimed that the "global war on terror is a fiction as is the unlawful combatant status"; both were "sidesteps by the Bush administration to get around the law."
 
Ruth Wedgwood, a professor at Johns Hopkins University, talked about the government's responsibility to protect citizens but conceded that there was no consensus on how courts should treat evidence and discovery.

Lawrence D. Rosenberg of Jones Day agreed that there was a lack of consensus on how to treat many detainees but that there was a clear consensus against torture. He also talked about how uncertain the guilt of many of the detainees are--- citing Jose Padilla, he claimed that "Padilla probably watched 24 once and wanted to do some things that Jack Bauer did... there is no evidence that he shot a gun or plotted anything, he's was a wayward soul who wanted to learn about Islam." Calling the case, "thin in evidence" Rosenberg said the case would be better suited for a "production of Springtime for Osama" than the court.

How Judges Think: Rule of Law or Rule of Man?

Friday morning also featured a panel sponsored by the Judicial Division National Conference of Federal Trial Judges  entitled "How Judges Think: Rule of Law, or Rule of Man". The panel sought to explain that "even (seemingly) rigorous legal analysis may be tainted by logical fallacies and biases, which can be outcome-determinative. And, although judges aspire to 'the rule of law,' cognitive errors affecting judges' decisions may sometimes result in 'the rule of man'". The panelists sought to demonstrate this by asking the audience to "vote" on various fact patterns, indicating how they would "judge" each case.

Bryan Garner, co-author of "The Art of Persuading Judges" (along with Justice Scalia) moderated the panel. Garner referenced a recent New York Times best-selling book Dr. Jerome Groopman's "How Doctors Think" in comparing the cognitive errors of physician's diagnostic processes to the cognitive errors of lawyers and judges. However, Garner maintained that while doctors errors are easily discoverable, i.e. patients die, the errors of the legal community are not so easy to determine. Garner pointed out some common heuristics errors of judges in deciding cases-- anchoring, attribution errors, availability errors, commission errors, satisfaction of search errors, and vertical line errors. In layman's terms Garner claimed that for a judge to rule in someone's favor the "advocates have to be well liked".

The Hon. Andrew J. Wistrich, U.S. District Court for the Central District of California, Los Angeles, California, discussed how judges use heuristics when information and time is scarce. Specifically, Wistrich focused on the "anchor bias" and argued that judges are often swayed by opening offers and mandatory caps and that judges will "latch on to a number and adjust up or down but they don't adjust enough." Wistrich explained that for plaintiffs, "the more you ask for, the more you get."

The Hon. Alvin W. Thompson, U.S. District Court for the District of Connecticut, Hartford, Connecticut talked about how plaintiffs are usually risk averse while defendants are risk seeking in preferring to go to trial when evaluating whether or not to settle. He did admit that judges are usually less affected by the framing affect of the settlement amount than are lawyers in making decisions.

Mark. J. Mills, a forensic psychiatrist from Washington, DC discussed representativeness-- arguing that judges can get "stuck" on piece of information as representative of the entire fact pattern. Yet, the "votes" in the given hypothetical posed to the audience demonstrated the judges in the room did get the problem right more times than they did get it wrong, even though the fact pattern was "exceptionally counter intuitive".
 
Finally the Hon. Ann Claire Williams, U.S. Court of Appeals for the Seventh Circuit, Chicago, Illinois discussed egocentric biases, noting that judges are influenced by their own ego. The audience was asked how they thought they compared in the "voting game" to others in the room and Wistrich noted that "This is a more modest group than most." Pointing out that more men than women voted that they were in the top quartile in the room, Williams pointed out that "Men are more egocentric than women-- women have known that all along-- nothing new." Williams also mentioned Judge Posner and said that Posner believes that judges priors and biases are unavoidable and are actually "a good thing". Williams agreed, and said that "the importance of diversity in priors" would ensure better justice.

American Participation in the International Criminal Court
 
The Annual Meeting also featured a panel discussion sponsored by the Litigation Section entitled "The ICC:  Should America Join or Just Say No?"  The panelists discussed the various issues confronting the United States in deciding whether to participate in the International Criminal Court.  Jeffrey L. Bleich, of Munger Tolles & Olsen, LLP, who also serves as president of the California State Bar, moderated the panel.
 
Edwin Williamson, a partner at Sullivan and Cromwell, and former legal advisor to the State Department under President George H.W. Bush, started off the panel by discussing various reasons why the United States should not participate in the ICC.  Williamson began by taking issue with the makeup of the ICC.  According to Williamson, of the 106 nations taking part in the ICC, 6 have populations with less than 100,000, and 7 have populations with less than 1 million.  Furthermore, 15 of the 20 most populous nations are not members of the ICC.  He also pointed out that the Europe is overly represented on the Court.  Thirty Four European Union member states and candidates along with 6 Eastern European nations are members, with half of the judges coming from European nations.  According to Williamson, this over representation raises the possibility of the ICC representing European political goals.
 
Williamson also took issue with the broad prosecutorial latitude afforded to the ICC.  ICC prosecutors are given far reaching powers when deciding what to investigate and are not accountable to any other body when deciding how they investigate crimes.  Taking an idea from the American system of government, Williamson feels that "institutional safeguards must be in place to protect people from abuses of power" that may arise from an unchecked ICC.  Williamson also raised sovereignty arguments, claiming that if the ICC is afforded broad jurisdiction, it can undermine nations' responsibilities to prosecute crimes under their own laws.
 
Kenneth Roth, Executive Director of Human Rights Watch, did not share Williamson's sentiments regarding reservations over United States ICC participation.  Roth argued that the un-signing of the Rome Treaty by the Bush administration "epitomized American unilateralism."  Roth also doubts the willingness of the United States to prosecute international crimes committed by its citizens under its own laws because of the "lawlessness that we have seen under the Bush administration."
 
Roth also addressed many of Williamson's arguments, saying that ICC prosecutors have been very conservative in their choice and method of investigation.  He also feels that "the Assembly of State Parties (of the ICC) is sufficient oversight" of the court.
 
Professor David Scheffer of Northwestern University School of Law, is also in favor of U.S. participation in the ICC, but has his reservations.  Scheffer, who served as the first United States Ambassador on War Crimes under President Clinton, feels that there are issues to be addressed before the U.S. can be fully on board with the ICC.  During his time in the Clinton administration Scheffer worked to "clean up" the treaty in the hopes of sending it to the Congress for approval, but said the end of Clinton's term in office approached before they could send the treaty to Congress.  According to Scheffer, President Clinton wanted to be a part of the ICC - "that was the goal."
Scheffer does acknowledge those who fear the ICC would be a threat to the validity of the U.S. Constitution, but says that argument "fails on the merits," and that "backstops" can be put in place to protect any Constitutional issues implicated by ICC participation.
 
Williamson closed out the discussion by asking the panel to discuss the recent ABA resolution to be considered during the upcoming House of Delegates meeting, urging United States participation in the ICC.  Jerome J. Shestack, a former president of the ABA was in the audience and spoke out in favor of the ABA's continued commitment to U.S. participation in the ICC.  Roth and Scheffer both seconded their support for the resolution, agreeing that U.S. ICC participation would be beneficial.    
 
Williamson responded by saying that although some points have been raised in favor of U.S. participation in the ICC, "it's way too early to tell."  Williamson contends that the Rome Treaty is still too subjective and could "compromise key national security issues."
 
  
ABA President William H. Neukom Holds Press Conference.
 
ABA President William H. Neukom held a press conference on Friday to give an update on recent ABA activity and the future of the organization.  Neukom began the conference by addressing ABA responses to what he termed "notable breakdowns in the rule of law."  These included ABA support for Pakistani attorneys who risked their safety to ensure the rule of law in Pakistan.  Neukom discussed the ABA's 2007 "march on Washington," where ABA members gathered in Washington DC to honor the Pakistani lawyers' sacrifice.
 
Neukom also praised the House of Delegates response to the "fierce tension between national security and individual rights."  Neukom criticized the "use of state secrets," calling it an "unacceptable advantage used by the government."  Neukom said that these secrets are "just the type of information federal judges should be able to view in chambers."  Nuekom also addressed ABA support for strengthened attorney client privilege, and an increase in judicial compensation.
 
The majority of Neukom's comments addressed the ABA's involvement in the World Justice Project, "a multinational, multidisciplinary initiative to strengthen the rule of law worldwide."  The ABA serves as one of the founding supporters of this project, and has dedicated its resources to the growth of the initiative.  Neukom cited government accountability, fair and stable laws, efficient enforcement methods, and competent officials to uphold the law, as the main goals of the project.  Neukom also stressed that the judiciary must reflect the makeup of the communities they represent, saying that judges must be "as diverse as the people they serve."
 
Neukom discussed the World Justice Project's scholars program; whereby leading scholars conduct research to prove that the rule of law is "essential to economic opportunity and equality."  Neukom also addressed research underway to develop a "Rule of Law Index," that will catalogue nations throughout the world and their commitment to the rule of law based on a variety of indicators ranging from economic opportunity to citizens understanding of the law.  This index will allow attorneys to decide "where to intervene to advance the rule of law" according to Neukom.  The third measure of the project will focus on multidisciplinary conferences meant to further the understanding of the rule of law for professionals in a variety of fields.       
 
   
Judicial Criticism
 
"Judicial Criticism:  Judges Under Fire,"  sponsored by the Litigation Section and the Committee on Judicial Independence, featured a panel discussion made up of three sitting judges, along with the author of Reader's Digest's America's Worst Judges, Dale Van Atta.  The panel was moderated by Dan Slater of the Wall Street Journal.  The session began by showing various Television clips where reporters, political opponents, and TV personalities, criticized judges for their various rulings.
 
In the context of these clips, the panel addressed ways in which the Bar Association and judges themselves can help the public and the media to better understand judicial rulings.  The standing committee on Judicial Independence has established a "rapid response mechanism through which a Bar Association and members of their constituencies can provide timely responses to the serious, unjust criticisms of judges and the judiciary or to misunderstandings about the role of a judge or the judicial system."  All members of the panel unanimously agreed that Bar Association involvement to address criticism of the judiciary is warranted.
 
The Hon. E. Kenneth Wright Jr., municipal judge and the president of the Chicago Bar Association commented that the public often bases their criticisms on emotions and that judges need a body within the Bar Association to speak for them.  Kathryn Madigan, New York State Bar President agreed with Wright, saying that state and local bar associations should follow the ABA's "rapid response protocol" to respond to judicial criticism.
 
The Hon. Paul Friedman, of the U.S. District Court for the District of Columbia, added that judges should consider writing opinions in controversial cases so that "responsible reporters can go to the opinion."  Madigan agreed with other panelists sentiments regarding judicial criticism, but voiced her opinion that much of the problem can be attributed to public's lack of knowledge on what the role of the courts are.  Madigan said that the Bar Association has a "huge obligation" to educate the public and the media about the role of the judiciary.  "It's all about applying facts to the law and that's what Americans don't get" according to Madigan.
 
An audience member spoke up in favor of publicly responding to judicial elections.  The bar has an "absolute responsibility" to come forward.  "The media can be our best ally," and you can "find more friends than foes" in the media if you go out and openly talk to writers and reporters."
 
The issue of criticisms levied against candidates during judicial elections was also raised by an audience member.  Madigan again held that public education is a key element and that voter education guides outlining the accomplishments and history of each candidate can be invaluable resources.  Another audience member seconded the need for voter education, saying "people are absolutely ignorant" to pertinent judicial issues.

 

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