Douglas W. Kmiec 

The GOP has its nominee.  Why can't the Democrats get one?   Here's a proposal for those anonymous Democratic super-delegates from a primary-weary nation: just agree that whoever has the lead in the popular vote at the end of the primaries is the Democratic candidate. Then in the boldest possible campaign finance and voter-turn-out reform ever envisioned, hold the national election on Labor Day. Congress sets the election date by statute, why wait until November or vote on a work day?

The Bush administration is out of gas and unnecessary life and resources are being lost in an unjustified war.   General Petraeus has been given “all the time he needs” to ponder over how to explain not reducing the number of troops in order to maintain the success of the surge -- success being defined as reducing the number of troops that had been increased to enable the reduction that at the end of the pondering likely cannot be undertaken lest success be lost.

After six interminable weeks of Pennsylvania, the primaries are telling us less and less. An extended general election campaign will just yield more cable talk about “flag pins” and the umpteenth replay of Mrs. Clinton dodging those “snipers” disguised as welcoming children in Bosnia.

Mrs. Clinton who had high negatives at the beginning of the campaign (much of which is related to whom she is, well, related) continues to receive high negatives, but uncomfortably, her scorched-earth primary campaign strategy has finally succeeded in raising negatives for Senator Obama -- some of which is apparently race-based.

Hillary Clinton supporter and Pennsylvania Governor Ed Rendell blurted out: "There are some whites who are probably not ready to vote for an African-American candidate.”   The comment is deeply disturbing.

The Democrats -- nay, Americans -- don’t need a revival of racial or gender politics, yet, if the conventions follow the present trajectory of the ever-nastier primary campaign, they are headed exactly in that direction. Call them off. Of course, then, there would still be an unfinished nominating task for both parties -- the vice presidency?

No problem. Concede Colin Powell to be the universal answer. He is in both parties anyway, and he would be a handy to have around whoever wins. Toss in Mitt Romney as Treasury Secretary and have both sides agree to appoint Justices to the Supreme Court on the basis of talent and integrity, and we’d be off to a good start.

So let the Hoosiers, the Tar Heels and all the rest have their fun right through June 3, but as a nation, let's save ourselves from an over-extended electoral conversation that will only waste the time, money, and goodwill the next president will need to govern.

Thanks to the 20th amendment we have to bide our time with the incumbent until January 20, 2009, but there's no reason we can't get a head start on a much needed transition that would really have us ready for day one. 

 

 

Douglas W. Kmiec

Recently the New York Times lauded Senator Obama for his “profile in courage” in addressing, as the Times  put it, “race and religion, the two most toxic subjects in politics.”    I, too, commend the Senator, and indeed, his intelligent appraisal helped convince me to endorse Senator Obama for the presidency, even though it requires me to absent myself from my natural home in the Republican party, and ethically requires (in light of my Catholic faith) that I state unequivocally that I find the Senator’s position on abortion to be unacceptable and intrinsically wrong. 

At some point, I hope to raise the abortion issue with the Senator to explore where common ground may exist to reduce this practice which takes innocent life. It deserves to be asked whether a fully informed woman would choose abortion in a culture that better honored her own dignity and affirmed the linkage of sexual intimacy with a mature willingness to welcome new life or one that actually organized work to respect, not subordinate, the family.

In this comment, however, I wish simply to take issue with the Times  and others praising Senator Obama’s speech on race at the National Constitution Center by gratuitously caricaturing an earlier moment of great eloquence in the 2008 campaign – Governor Mitt Romney’s thoughtful remarks on “Faith in America.” It seems as if some favoring Senator Obama believe the way to build him up is to tear another down. Thus, the Times  editorialized that Obama “was as powerful and frank as Mitt Romney was weak and calculating . . . .” This is not only substantively false, it is also a means of discourse that is, well, frankly, mean-spirited, and directly contrary to Senator Obama’s general campaign approach of seeking to heal division, rather than abet it. 

More importantly, it obscures that Senator Obama and Governor Romney have much agreement on the significance of faith to public discourse.   Consider these comments from Senator Obama: “a sense of proportion should guide those who police the boundaries between church and state.”  “Not every mention of God in public is a breach of the wall of separation. Context matters.” For this reason, he continues, “it is doubtful that children reciting the Pledge of Allegiance feel oppressed or brainwashed as a consequence of muttering the phrase 'under God'.” Drawing upon a sense of history and the importance of faith in American life, Senator Obama concludes that “having voluntary student prayer groups using school property to meet should not be a threat, any more than its use by the high school Republicans should threaten Democrats. “People are tired of seeing faith used as a tool to attack and belittle and divide.” 

Those are Senator Obama's words -- indeed, prayer, -- and they run in tandem with – not in opposition to -- the insights of Governor Romney who stated: that “Americans tire of those who would jettison their beliefs, even to gain the world.” The American proposition does not require the shedding of religious distinctiveness, said Romney. “Each religion has its own unique doctrines and history. These are not bases for criticism but rather a test of our tolerance. Religious tolerance would be a shallow principle indeed if it were reserved only for faiths with which we agree.” In words that are anything but “weak and calculating,” Romney boldly observed that “Freedom requires religion just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.” In recounting his own personal journey of faith, Obama likewise recalled how he could engage in community organizing in behalf of the poor, but without faith he would always remain "apart and alone."  Faith did not mean said Senator Obama that one was without doubt, but it does mean hearing God's Spirit beckoning him.”

It is unhelpful and misleading to create an artificial division between Obama and Romney on the issue of religion in order to admire Senator Obama’s call for unity on matters of race.  In this regard, it was not surprising that Obama would reference the Gospel to point us in the right direction. Romney did too.

 

 

 

Douglas W. Kmiec

chair and professor of constitutional law, Pepperdine University

To leave Iraq with honor requires having acted honorably while there.  Unfortunately, that wasn’t on the “to do” list.  As disclosed this month, a long-buried, RAND corporation report for the Army found post-invasion planning to have been assigned to a Pentagon that didn’t want it and a State Department and National Security Council that were either side-lined or ineffectual.  “There was never an attempt to develop a single national plan that integrated humanitarian assistance, reconstruction, governance, infrastructure development and postwar security,” the report said.    

Back in late 2005, RAND’s report was unwelcome news for an administration trying to convey an upbeat assessment of “victory” -- which of course explains why the public is only reading the study now.  Managing the news substituted for handling the real problem.  As RAND observed, “Building public support for any pre-emptive or preventative war is inherently challenging, since by definition, action is being taken before the threat has fully manifested itself.  Any serious discussion of the costs and challenges of reconstruction might undermine efforts to build that support.”  Translation: if we actually added up the cost in lives and treasure in advance, we might not have been so quick to accept the invasion’s weak justification.

But that was then.  How do we go about leaving Iraq with honor now?  There is no honor to be found in the endless political argument over whether there ever was a credible basis for intervening or a justification for an ill-fitting new form of government or any explanation for an extended occupation that has precipitated an intolerable level of daily insurgent attacks. No, the only responsible course is to pick up the task of rebuilding that RAND prescribed three years.  For a fraction of the hundreds of billions of dollars the president has requested for the continuation of the military occupation, it would be possible to build economic and social infrastructure in the most honorable, humanitarian sense – namely, courts, clinics, schools, businesses and homes in abundance.  

While the political leadership in Washington has been in default, in subtle and important ways individual military personnel have taken up the face-to-face regeneration of  the Iraqi civil order that the Pentagon shunned.

Take for example, Major Mike -- a graduate of Pepperdine Law School. A few years ago, he sat comfortably and safely in my class with the usual T-shirt and backpack putting up with his professor’s meandering Socratic dialogues. Today, he is deployed in the disorienting and dangerous Fallujah. His responsibility is to steer the Fallujah judiciary toward the rule of law. Here’s what he wrote me recently: "We met with the Chief Judge, and two of his investigative judges to try and figure out why more criminals are not successfully convicted. The judges advise us to ‘think like an Iraqi.’"

That’s the rub -- thinking like an Iraqi means relying upon what we taught him to see as unreliable and subjective evidence. Writing in the fairest (but nevertheless distinctly U.S.) terms, Major Mike says "[t]he Iraqi system favors testimonial and demonstrative evidence over real evidence." In America, we insist on fingerprints, gunshot residue, photos of the crime scene; in Iraq, the judges want mini-stage plays or re-enactments which not only would not be considered evidence in the United States, but would often be ruled prejudicial.

Nevertheless, crime in Iraq is as frighteningly real there – and as tragic there – as it is in any American venue. Major Mike recounts the case of insurgents "who kidnapped a 14 year-old-boy, beheaded him, then sent the video of the killing to his father. His father was the former head of one of the local police agencies. Because coalition forces gave the boy some gifts (probably soccer balls), the insurgents thought he was working with us."

Of course, he wasn’t, and Major Mike senses deeply how, rules of evidence aside, the human heart cries for justice. So it is no surprise when the "judge informs [him] that they want Iraqi legal techniques . . . Not American laws."   This, of course, is the opposite of his assignment which is not to walk in Iraqi shoes, but to fit those stubborn Iraqi feet into American wing-tips.  To his credit, at least by the lights of his old professor, though perhaps not his immediate commander, he thinks “Iraqi law for Iraqis ...hmm what a great idea.”

Major Mike has learned far more than we could teach him in the classroom. He now knows there is more than one way to reach a reasoned conclusion.   Were his country to learn this too, it would be closer to finding the path toward an honorable exit. 

 

Douglas W. Kmiec

Professor of Constitutional Law, Pepperdine University; Chair of the Courts and the Constitution Committee of Romney for President

 The latest Rasmussen telephone survey finds Mitt Romney with a lead in Florida’s Republican Presidential Primary. John McCain and Rudy Giuliani are close behind in what may develop into a three-man race. It’s Romney at 25%, McCain at 20%, and Giuliani at 19%. Romney has picked up seven points over the past week while McCain and Giuliani each inched up a point. Huckabee is way back, falling to 13%.  These percentages likely understate Romney's strength now with Thompson dropping out after his disappointing showing in South Carolina.  Romney and Thompson, as the debates revealed, agreed far more than they disagreed, and key supporters of the "Law & Order" Senator are now making their way into the Romney fold.

Why the focusing of interest on Governor Romney?

In part, it is momentum. While finishing second in the early contests in Iowa and New Hampshire, Romney is today the frontrunner in delegate count, with wins in Michigan, Nevada and Wyoming. Florida is also the first true Republican primary, where independents and cross-over delegates cannot game the system – a fact that was an indispensable help to McCain in New Hampshire and South Carolina. Even more importantly, with the steep dive in the financial markets, the nation’s attention has turned to the economy, and Romney is the only candidate of either party with a substantial history of successfully addressing economic challenges. 

 Change is more than a slogan.

 Governor Romney also quickly moved to demonstrate that expertise by proposing an economic stimulus plan that would lower taxes on individuals, reduce taxes for businesses and help homeowners through the current housing crisis. The plan is far meatier than that proposed by President Bush or any of Romney’s Democratic rivals and addresses both short and long-term objectives.   For Romney, change is more than a slogan, and a slumping DowJones supplies an opportunity for him to give concrete illustration of capabilities honed at the Harvard business school and as a turnaround whiz in the public and private sectors.

Here’s the plan in broad-strokes. With respect to individuals, Governor Romney would permanently reduce the lowest income tax bracket, permanently eliminate payroll taxes on seniors and make middle-class savings tax free.   Romney thus aims the stimulus where it is most likely to have an immediate impact. Given the origin of the economic distress in the housing sector, it also makes perfect sense to expand the Federal Housing Administration (FHA) loan portfolio, adjusting limits to allow larger loans to homeowners. Having witnessed the hardship of Michigan unemployment, the Governor is mindful that real investment, not temporary hand-out, is the best long-term antidote, and to that end, he sensibly calls for an immediate 100% expensing of equipment for two years and permanently reduce the corporate tax rate.

  The Complete Record Answers His Critics

While a pair of Northeastern economists have recently questioned Romney’s economic bona fides, Romney’s resume includes too many notable successes, such as rescuing the debt-ridden Salt Lake City Olympics and helping to set up office supply retail-store chain Staples Inc. which employs about 70,000 people, to be fooled by statistical sleight of hand. Premised more on guestimate than hard numbers, job growth tallies are notoriously slippery – some would say subject to manipulation – but it is undeniable that Massachusetts won a credit-rating upgrade during Romney's term as governor for the first time since 2000.  

 Romney, himself, freely concedes that the liberal Democratic legislature in Massachusetts gave him a hard time as he pursued free market means to bolster a lagging state job market. Nevertheless, the direction of Romney’s proposed reforms was “encouraging,” according to the more balanced appraisal by the Club for Growth. His record on trade, school choice, regulations, and tort reform all indicate a strong respect for the power of market solutions. The report found his deregulatory initiatives to be “impressive,” even as he often had to “clash with the knee-jerk anti-business Legislature over his attempts to ease Massachusetts’ regulatory burdens. Though some of his largest undertakings were ultimately crushed by liberal opposition, Governor Romney deserves praise for attempting to change the relationship between government and private enterprise for the better.”

Hope is more than rhetoric.

 Perhaps the best measure of Romney’s economic savvy is his own record of achievement in the private sector when not weighed down by the obstructionist policies of partisan power. When Romney was asked to return to Bain & Company in1990, the firm was facing financial collapse. As CEO, Romney managed an effort to restructure the firm’s employee stock-ownership plan, real-estate transactions and bank loans, while increasing fiscal transparency. Within a year, he had led Bain & Company through a highly successful turnaround and returned the firm to profitability without layoffs or partner defections. Romney’s 14 years at Bain Capital yielded an average annual internal rate of return on realized investments of 113 percent.

Romney won in Michigan and Nevada telling voters he would “fight for every job.” Apparently, he knows how to win those scraps, as during Romney’s tenure in private business, he helped found, acquire, or invest in hundreds of companies including Staples, Bright Horizons Family Solutions, Brookstone, Domino's, Sealy Corporation and The Sports Authority.

The polls are showing Romney breaking into the lead in Florida – with good reason.

Douglas W. Kmiec

Chair & Professor of Constitutional Law, Pepperdine University; Constitutional legal counsel to President Reagan, Professor Kmiec is co-chair of the Committee for the Courts and the Constitution of Romney for President.

The story line leading to Iowa and New Hampshire is that conservatives nation-wide are moving behind Mitt Romney. Huckabee may be made to order for Iowa’s cumbersome caucuses, but outside the idiosyncratic Hawkeye process, Romney will prevail.

Why has Romney at long last won over major conservative figures like Bob Bork and the conservative flagship publication, The National Review? Well, as the editors of NR put it in making their endorsement, "Romney is a full-spectrum conservative: a supporter of free-market economics and limited government, moral causes such as the right to life and the preservation of marriage, and a foreign policy based on the national interest." No other candidate puts all the right pieces in place and has the unflappable intelligence, strength of character, and goodness of heart to eclipse any of the top three Democrats, Clinton, Obama, or Edwards. Romney’s deft and patient handling of the unfortunate probing of his faith and his resilience in the face of inaccurate and often mean-spirited opposition more than demonstrates the capacity to run a disciplined, and ultimately successful, national campaign at a time when it would be difficult for any Republican to prevail.

Romney’s success as a conservative governor in a highly liberal state environment, his rescue of the financially mismanaged Olympics and his natural gifts of speech and analysis (so long absent from the national stage) will increasingly resonate with voters as Romney emerges with New Hampshire victory. Republican and independent alike will recognize Romney as the thinking person’s candidate, revealing even the highly energetic and Oprah-abetted, Obama as more bumper sticker than thoughtful appraiser of public issue.

Yes, Romney has modified a significant position or two over his political life, but as he more than openly states: "if you want a person who pretends to have all the answers and is not prepared to re-vise the game plan in light of new facts and opportunities," you best look elsewhere. In any event, when shorn of opposition hyperbole, Romney’s conservative core has been consistent and battle-tested since 1994 when he tried to unseat Ted Kennedy. Romney’s campaign then, and now, is against higher taxes and government-run health care, in favor of school choice, for a balanced budget, welfare reform, and "tougher measures to stop illegal immigration," while at the same time rationally opening the door to legal immigration where there are obvious labor needs.

Romney’s greatest authenticity is located right where social conservatives would expect it: in family and community. No other Republican governor had to deal with both human cloning and court-imposed same-sex marriage, and Romney was on the right side of both issues. He fully understands that judicial activism often lies at the root of these social provocations and he has an executive record of seeking out men and women for the bench who are faithful to the law as written, not as they would personally want it to be. Romney is also an exemplary family man whose character matches the high office to which he aspires.

Romney wins because he grasps that what matters is not just winning the election, but winning for good purpose.

The next president needs the savvy to engage friend and foe alike; to remind the often overly-critical international crowd nominally aligned with us that it's not just America in the path of suicidal terror, and the cost and burden of defense must now be shared more fully and equitably. The next President must also have the courage to tell those killing our soldiers and untold hundreds of innocents that the world intends to de-couple itself from the blood-soaked oil of enemies, and then actually have the intellectual capacity to do it.

Respectful of the presidential office within a Constitutional structure, Romney has broken free from the President’s ill-executed Iraq occupation while fully grasping the long-term challenge that President Bush intuitively grasps but has been unable to wrestle. As Romney puts it, "what we should have realized since 9/11 is that what the world regarded as an Israeli-Arab conflict over borders represented something much larger. It was the oldest, most active front of the radical Islamist jihad against the entire West. It therefore was not really about borders. It was about the refusal of many parts of the Muslim world to accept Israel’s right to exist – within any borders." It is fair to conclude that Romney recognizes the futility of continued occupation and would responsibly substitute reconstruction for military expenditure while bringing significant troops home in an orderly fashion.

There is, of course, not a single candidate – Republican or Democrat – who would not readily separate us from the Iraq mess in theory, but only Romney is poised to undertake the steps necessary to accomplish the task. Again, it is plausible to see a President Romney:

Seriously committing to ending our dependence on Middle-Eastern oil.

Electricity is less expensive and cleaner than petroleum, and electricity can be generated domestically independent of the global oil market. It makes no national security sense to buy $100 barrels of oil from those who in turn use this vast revenue to promote hate and religious distortion.

Confronting terrorism with international understanding. A year ago, 38 Islamic scholars authored an open letter of religious common ground to Pope Benedict XVI within a month of his Regensburg lecture. The number this past fall grew to 144 from 44 nations, belonging to the different currents of Muslim thought – Sunni, Shiite, Ismaili, Ja'fari, Ibadi. Some among the signatories have in the past praised terrorist suicide missions, so caution is needed here, but the letter ought not be ignored. Presidential debates have come and gone with little or no recognition of this positive development. The Church can be an emissary for peace, but the person in the oval office must lead.

Confronting terrorism with the international rule of law

. In fairness to the United States, it has been bearing the singular responsibility for the world’s defense against terror far too long. Whomever we choose as our next president must work with his or her foreign counterparts to unify and more equitably share the duties of both military defense and containing terror. The surveilling, investigating, prosecuting, and detaining of those who threaten the world order must reflect world-wide commitment. Keeping true to the promise of the international rule of law, including the Geneva Conventions, means both not overstating abstract privacy claims and not over-extending the Geneva accords – at least not without thoughtful modification – to a terror force that targets civilian populations. Gitmo may close when there are well-managed alternatives in foreign venues.

At home, a Romney presidency likewise holds out the promise of getting our own house in order. It’s time to remind young people of the importance of forming families and raising children well. In addition, part of the happy calculus of reducing the dependency on Middle-Eastern oil will be strengthening our stewardship of natural resources, and frankly, just reducing excess consumption. Tax burdens on these young families ought to be lightened and simplified so that education and health care decisions are made from the bottom-up. The last thing America needs is more excuses, and new, centralized bureaucracies are usually excuses.

The primary bell is about to sound, and on love of country and personal optimism, Romney is President Reagan’s heir apparent. New Hampshire will play its historic role of once again pointing the nation in the right direction. There Romney is convincing voters – one front porch at a time – that he has the stuff to address challenges that the Gipper never confronted, and that’s why he leads, and why he will win.

 

Romney’s commitment to law even in times of war

Douglas W. Kmiec

Chair and Professor of Constitutional Law, Pepperdine University; Constitutional Legal Counsel to President Reagan and the first President Bush, Professor Kmiec has volunteered to assist Governor Romney with legal issues.

There is probably no more important executive power topic than the relation between law and war. For example, Chris Matthews asked Governor Romney whether he would need the authorization of Congress to take military action against Iran’s nuclear facilities. Soundly, the Governor responded that his overriding consideration as President of the United States would be to do what is "in the best interests of the United States to protect us against a potential threat." However, because the Governor also commented that " he would consult legal counsel on the range of his available authority," he has been taking some flak.

This criticism is wholly unwarranted. The decision to go to war ought not to be made lightly or without the full benefit of the collaboration of both political branches, and whenever feasible, consultation with our allies. This is precisely what the Governor said. As much as possible, he said, "you want to have the agreement of all the people – leadership of our government as well as our friends around the world as those circumstances are available." The judiciousness of that statement should be applauded worldwide. In itself, it illustrates how Romney, unlike some other candidates, refuses to engage in bellicose rhetoric for the purpose of pandering for votes. But do not be misled, Romney’s no nonsense business acumen makes him no international pushover. For example, Romney has forcefully elaborated on how – by not making concessions to the buffoonery of the present Iranian power structure – the premise of Matthews question could be successfully met without military intervention.

But when war is unavoidable, what about all the law talk and the consultation with lawyers? Is this faithful or inconsistent with our constitutional expectations for a president? The answer is quickly found by even the most cursory examination of the constitutional convention of 1787. War was not to be exempted from the rule of law in our constitutional design. The founders created a constitutional system in which the war power was consciously divided between the president and the legislature. It was anticipated that the president would and should be able to respond with dispatch largely in the context of sudden attack. Beyond that, the framers wanted to give the political branches – the president and the legislature together – as much flexibility as they would need to meet the unforeseen. In this respect, the founders deliberately changed the phraseology from to "make" war to "declare" war, recognizing, as implicit in Mr. Matthews’ all too realistic question, that external forces could force a war upon the United States without its desire. That said, should war come, the president would be able to take unilateral action to meet it, recognizing that he would have an ultimate obligation to affirm the licitness or legality of war by seeking a legislative declaration. Contrary to popular belief, the declaration itself was not synonymous with a categorical requirement of pre-authorization. Rather, such declaration – whenever sought and given – would be affirming of the lawfulness of the actions that had been taken or were to be taken yet.

The fact of the matter was that the founders didn’t really want to put war making power in the hands of either the president or the Senate. As George Mason articulated, he "was against giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war but for facilitating peace." Given that admonition, President Washington declared neutrality in the conflict between England and France, and every successor President, before breaching the peace or neutrality, must take seriously that his oath is to "preserve, protect and defend the Constitution of the United States," which of course is just a long way of expressing an obligation to comply with the law.

Then and now, genuine peace is the aim of the United States. But the premise of Mr. Matthews’ question was that the President of the United States was confronted by a nation with nuclear capacity that had anything but peace on its mind. This is a question not to be glibly answered, for it is more difficult than even the founding generation could anticipate. It involves neither a sudden attack nor a consciously deliberated decision to go to war in an extended, conventional sense. The whole point of preemption is avoidance of an extended war. That said, modern conflicts like Iraq give reason to doubt the ability to surgically preempt in many instances, and in any case, it is seldom clear where preemptive action will lead. In the constitutional convention of 1787, Roger Sherman noted that "the executive should be able to repel and not to commence war." Is a preemptive war, an act of repelling or an act of commencing? President Romney wisely would not rush head long into such conflict, at least not without seeking to discern from the best minds – of legal, foreign affairs and military capability – whether it was "in the best interests" of his nation.

Shakespeare in Henry VI said: "the first thing we must do is kill all the lawyers." This passage is given several different interpretations. As a lawyer, law teacher, and former legal counsel to two presidents, I remind people that one view of this admonition often surprises people who are used to modern day lawyer jokes. Arguably, the speaker in Shakespeare’s play (Dick the Butcher) was not making this recommendation in order to improve society, but to destroy it. For all of their faults, and there are many, lawyers do have the ability to check the abuse of power and in so doing to ensure that the civilized world does not rush headlong into chaos.

It was this thought that lay behind Governor Romney’s entirely appropriate debate response. Candidates too willing to disregard the obligations of the law, be it the law of the Constitution or of our international agreements, do us no favor, and indeed may endanger our very safety. Indeed, Governor Romney’s response is as old as the union itself. To be sure, in this over legalized world, the notion of consulting with lawyers to know the scope of authority against a terrorist force that is the very antipathy of law has an odd resonance. Indeed, in a radio interview, my former colleague in the Reagan administration Ted Olson who has now signed on with Rudy Giuliani, opined that "this whole issue of consulting with lawyers" reminded [him] that "you need to be ready to act and without having to go get a legal opinions."

That’s a curious comment coming from Mr. Olson, former head of the Office of Legal Counsel and Solicitor General of the United States, and who has devoted a good deal of his life to writing legal opinions to presidents about the scope of their war power. On this, I could cite multiple examples, but perhaps it’s enough to make reference to Mr. Olson’s October 30, 1984 memorandum outlining in excruciating detail the legal authorities of the President and the Congress in times of war. As Mr. Olson wrote, "on a number of occasions during this Administration, this Office has provided both written and oral legal advice to . . .the President and the National Security Council" regarding matters of war, including especially the War Powers Resolution. This was so even though no president has ever formally conceded the constitutionality of the resolution, and some have outright denied its constitutionality. Nevertheless, the duty to obey the law, or at least to be informed by what other responsible actors in the democracy believe is the law, prompted Mr. Olson to write multiple legal opinions in connection with the deployment of United States Armed Forces in Lebanon, the provision of military assistance and intelligence to our allies in Central America, the deployment of sophisticated radar aircraft in Chad and in the Sinai, responses to an armed attack on our armed forces in the Gulf of Siddra, the deployment of troops to Grenada, and in various other circumstances." Indeed, it was Mr. Olson’s intent in his October 1984 memorandum, as he put it, "to summarize the highlights of that advice . . . to provide guidance to you and to our respective successors in future analyses of [war related problems]."

Mr. Olson’s exposition of the legal questions pertaining to military engagements was thorough and responsible, and his initiative in leaving a summary of those matters for his successors, including myself, who relied upon his good advice in advising both President Reagan and the first President Bush in several matters of a military nature, including executive authority as it related to Iran Contra and strategies leading up to the capture of Manuel Noriega, is much to be applauded. What is to be regretted is the tendency of some presidential candidates just to look and sound like a tough, as if, upon assuming the presidency in a time of war, law does not matter.

It is sometimes said that Lincoln needed to go beyond the law to save it. Perhaps, in extremis that is so. Yet, Lincoln would likely have been the first to concede that Presidents operating outside the law when making the awesome decision to commit the lives of their citizens to war are to be regretted, not revered.

 

An earlier version of this essay was prepared for the Catholic News Service

Douglas W. Kmiec

Sunday began in its usual way in our town of Malibu, California along the Pacific Ocean -- except oddly there was no power. High winds this time of year in southern California often knock down power lines, and this proved to be the case again. What was not expected was that the loose power line would dangerously arc and trigger a massive fire in Malibu Canyon. Within minutes the fire was racing toward the ocean, as if in defiant challenge of the sustaining sea, itself.

I relish quiet Sunday mornings.

Teaching an adult religion class later in the day, it was thus not surprising for me to think of the battle between fire and water raging outside in spiritual terms. The furious passion of sin taking on the cleansing and cooling water of baptism, I speculated.

Satan, it seemed, had come to Paradise again. Standing in its way on one side of the canyon road he had chosen was one of the most expensive mansions in the community perhaps in all the nation – literally built in the style of a castle upon a majestic hillside. As man’s creations go, it seemed an impenetrable fortification. It would be lost in minutes. Next up for the devilish fire, lay Pepperdine University, a Christian university situated upon one thousand steeply sloping acres overlooking the Pacific.

Many students are attracted to Pepperdine by brochures that make higher education in this setting seem more aligned with surfing and leisure than Socrates and serious intellectual effort. The brochures aptly reflect Pepperdine’s campus beauty, but they understate her inner goodness.  I think, the wretched old deceiver has himself been fooled. Little did the malevolent blaze realize that just the day before the canyon fire, the university community had turned out in great number to consider the social justice of Nobel laureate Dr. Muhammad Yunus, founder of the Grameen Bank of Bangladesh, whose creative, micro-lending has helped bring hope to small shopkeepers and craftsman creating, as the university put it, "the spark of personal initiative and enterprise necessary to pull themselves out of poverty."

As with most universities, of course, students come to Pepperdine for many reasons – a highly personal curriculum in the undergraduate school is structured around the great books placing students in conversation with the authors of the finest literature and learning. The Law school where I am privileged to teach has a top-ranked dispute resolution program that strives to remind a culturally litigious society that it is better to forgive and resolve than further stoke dispute.

There are many excellent teachers at the university, but this challenging Sunday, the faculty of greatest note would wear yellow slickers and helmets and heavy boots. These "visiting faculty" came on red trucks and often from great distances. But they came with only one lesson plan: "love thy neighbor." Miraculously, the firefighters steer the blaze away from thousands of much relieved students, and thousands more anxious parents watching frightening news reports at great distance.

Of course, like the devil himself, wildfire seldom rests in one place very long. Monday morning, as this was written, the fire is now three miles south of the university on the ridge line above our house. Your essayist is taking a short break from joining his neighbors on rooftops spraying water at an inferno from a garden hose. A humorous sight? Perhaps. An inconsequential gesture. Hardly. This devil of a fire is no match for neighbors in mutual aid of one another. Oh yes, it may take one or more of our houses, but in the Latin, "Omnia vincit amor" (Love conquers all)." Translated in the email I just received from a colleague who has lost his home, "Our home is a total loss. But God is more than good and we shall rebuild."

 Or as the late pontiff, John Paul II reminded us, "In the end, love will be victorious! Let everyone be committed to hastening this victory." So, excuse me now, I have to go resume my place on the hose line.

 

 

Douglas W. Kmiec

*An earlier version of this essay appeared in the Wall Street Journal, p. A21, September 19, 2007.

The nomination of Michael B. Mukasey to be Attorney General of the United States has met with almost uniform praise. One dissident is Washington lawyer Bruce Fein, who has been an outspoken opponent of the conduct of the war on terror by President Bush. Fein argues in a recent column for Slate (September 19, 2007) that Mukasey will prove to be "a reliable echo of the monarch like theory of government celebrated by Mr. Bush and Vice President Dick Cheney." Fein asserts that Mukasey "lacks the independent political base, national stature, or philosophical convictions necessary to resist the inevitable White House clamor to subordinate the Constitution to expediency."

Even as a highly partisan assessment, Mr. Fein is mistaken. Judge Mukasey has his own national stature and a well articulated philosophy of law, including the law of presidential power, that is anything but monarchial in nature.

In terms of reputation, or stature, Judge Mukasey is known as a no-nonsense judge who has little patience for cross-examination that does not stay on topic. A Yale law graduate, Mukasey has ample experience as a federal prosecutor, in private practice, and for 18 years (a half dozen of them as Chief Judge demonstrating important managerial capability) on one of the busiest federal courts in the land – the southern district of New York, which gets more than its share of complex securities and corporate cases, along with the usual docket of federal criminal prosecutions.

And philosophy? Andrew McCarthy, a former assistant US attorney who appeared before the Judge numerous times gives a first-hand assessment that directly rebuts Fein’s hearsay speculation. McCarthy prosecuted Sheik Omar Abdul Rahman and 11 other jihadists (who had plotted to strike the United Nations, the FBI’s lower Manhattan headquarters, various military installations as well as the Lincoln and Holland tunnels).   In a thoughtful essay on Mukasey in the National Review Online, McCarthy reports that in the conduct of trial, Mukasey "carefully crafted insightful opinions on the proper balance between national security and civil liberties, permitting the government to introduce the full spectrum of its evidence but holding it rigorously to its burden of proof and its ethical obligations; managing a complex litigation over defense access to classified information; and developing jury instructions that became models for future national security cases."

But don’t just take the prosecutor’s word, criminal defense lawyers from Donna Newman (who represented Padilla) to the late William Kunstler (who represented defendants in the Abdul Rahman case) praised Mukasey’s fairness. Said Newman, "I admire him greatly." When Kunstler and the defendants complained that FBI agents were leaking information to the press to bias the case, Mukasey was blunt: "in my day, whoever did this would have been afraid for his or her job," he said. "If it doesn’t stop, then I’m going to start asking people in those agencies, and every agency and office involved in this prosecution, to start submitting statements under oath. . . .It may be that the only power I have to stop [the leaks] is the power of embarrassment, but I’m going to use it."

Overall, well before the nation had its attention focused on terror on 9/11, Judge Mukasey threaded the legal needle in early terrorism cases, distinguishing himself in the words of his appellate reviewers as a man of "extraordinary skill and patience, assuring fairness to the prosecution" and defendant alike.

All that said, Fein’s observation that the Judge does not have an independent political base is true, and it warrants closer examination. Prior to his nomination, the Judge was not a close associate of the president, and given the cloistered nature of judicial work, he was not out building a political constituency of his own. What does this lack of a presidential relationship mean for Judge Mukasey’s potential success as Attorney General? This requires a bit of history.

The office of Attorney General was created by an isolated paragraph in the Judiciary Act of 1789:

"There shall be appointed," said the Act, "a person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments . . . ."  

It is widely assumed that Mukasey inherits a Department in some considerable disarray, with vacancies at the top of almost all the divisions and suspicion and frustration among the career ranks. But at least, he inherits a Department. Edmund Randolph, the first Attorney General, had to get along all by himself (the Department of Justice not being created until 80 years later). While Mukasey will be forced to take a considerable pay cut from the private practice he has enjoyed since leaving the bench in 2006, he’s certainly better off than Randolph, who had to make do with a half-salary. But Randolph had an initial advantage Mukasey lacks: he was well known to the President. George Washington had utilized Randolph’s legal counsel numerous times before he assumed public office. Despite rose garden oratory, Bush doesn’t really know Mukasey, and therein as Fein implies, lies a challenge to effectiveness.

Indeed, some of the most effective Attorneys General in modern times have been close associates, even kin, of the President. Thirty-five year old Bobby Kennedy assumed the role for his brother, and by many accounts acquitted himself well, giving pivotal advice resolving the Cuban Missile Crisis, aggressively pursuing organized crime, and laying the framework for the early federal civil rights legislation. Likewise, close friend and California legal advisor, Edwin Meese, for whom I worked, had the ear and total confidence of President Reagan. The seamlessness of this relationship gave birth to a strengthening of efforts to reduce both the demand and supply sides of the illegal drug trade, a substantial reform of the antitrust policies to coincide with other deregulatory steps to spur a then-sputtering and inflated economy, a revival of respect for the separation of powers and the interests of the states, and a judicial selection effort that underscored fidelity to text and a restrained judicial role. It was Meese’s careful screening that led to the nomination to the federal bench of men and women of Mukasey caliber, including Mukasey, himself in 1987.

By contrast, Clinton Attorney General Janet Reno, whose legal credentials were impeccable, was often thought to lack necessary access to the President. President Clinton’s third choice when the first two had confirmation difficulty, Reno is remembered for missteps that led to the deadly Branch-Davidian siege, but also for the expansion of the independent counsel’s inquiry into matters related to Monica Lewinsky. Depending on your political perspective, the latter was either a profile in courage or an abuse of process that provoked an unwarranted impeachment process.

Of course, to Senator Leahy and the Democrats, and even some Republicans like Senator Specter, exasperated by the inability to obtain the answers they demanded from Mr. Gonzales, Judge Mukasey’s lack of Texas pedigree or longstanding presidential friendship is almost certainly a plus. Leahy, who has flirted with the idea that the Justice Department should be the equivalent of an independent agency, will certainly see Mukasey’s lack of prior history with George Bush as a strength.

Frankly, it can be, and at this moment in time, likely is. Whatever the complete motivation for the selective dismissal of U.S. Attorneys, either the firings themselves or the public controversy surrounding them has seriously eroded public confidence in whether the legal framework is being evenhandedly applied. Robert Jackson who served as Attorney General to FDR before being named to the Supreme Court is famously remembered for his admonition to U.S. Attorneys that they have "more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . .While the prosecutor at his best is one of the most beneficent forces in society, when he acts from malice or other base motives, he is one of the worst." Mukasey could scarcely find a better opening text for his confirmation proceeding than Jackson, and upon assuming office, could likewise use it to reaffirm the U.S. Attorney guidelines that prosecutions are rarely to be countermanded by Washington, except to ensure "uniformity of policy and action."

Forthright commitment to these rule of law principles should rightly banish prescriptions to formally make the Attorney General an independent agent. President Carter floated that idea post-Watergate only to have his Attorney General, Griffin Bell, opine that any law restricting the removal of the attorney general by the President would be unconstitutional and promote unaccountability. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," wrote Bell. This is the consensus view of academic study as well. Scholar Nancy Baker who has done a comprehensive study of the office quotes former Attorney General Elliot Richardson and William Saxbe as arguing that too high degree of insulation of the Attorney General’s office from politics could create a tyrannical bureaucratic monster. In the end, the Attorney General more than any other executive officer must combine a personal and professional commitment to the law and the Constitution with a measured degree of sensitivity to the political constituencies represented by the Department’s own civil service personnel, the House and Senate Judiciary Committees, the federal courts, the bar and the legal academy, and yes, of course, the President.

Can Mukasey bring us back to this straight and narrow path without a long-standing relationship with the president he intends to serve? Yes, because he has something even more important: integrity and intellect. In public essay, and from the bench, Judge Mukasey has given considerable thought to needed reforms aimed at the greatest immediate threat to the civil order: terrorism. In particular, Mukasey has demonstrated a nuanced understanding of the capability of Article III courts to deal with detainees. Some say the shortness of time will make Mukasey only a place-holder, but the times do not permit that luxury. We have dealt with terrorism in fits and starts, sometimes on war-footing and sometimes through the lens of criminality. It may well be both or neither, and whether it is a specialized national security court with more flexible rules of evidence or something else, it is a reasonable bet that Mukasey will counterbalance any defendant limitations to access to classified information with adherence to a rigorous burden of proof and the observance of ethical standard.

Of course, beyond terrorism, there is dealing with an increasing rate of violence in urban settings, jump-starting fair-minded civil rights enforcement that addresses both invidious electoral exclusion and voter fraud, the perennial problem of drug abuse, disparate sentencing and new challenges posed by identity theft and the thieving of intellectual property. That should easily fill out the rest of the Judge’s hours. The notion that the forthcoming hearings ought to rehearse past grievances would be a mistake. There is serious work to be done and a serious person has stepped forward who can do it, if we let go of the partisan past that Mr. Fein seems too anxious to re-litigate.

Douglas W. Kmiec

Chair & Professor of Constitutional Law, Pepperdine University

The cover story of the August 2007 ABA Journal is a provocative article by lawyer and novelist Scott Turow entitled "The billable hour must die."

This is an article long overdue since it raises an undeniable truth about modern, especially large firm, law practice: namely, hardly anyone finds it satisfying as it is presently structured – neither lawyer nor client.

For new lawyers, the billable hour represents the mockery or de-construction of most everything that attracts a person to law school. Most law teachers know this ugly secret since many of us are refugees from the dispiriting nature of modern practice. And having found happiness in the academy, we uneasily take the calls of our top recent graduates when they confront the dismal realities of life employed by mega-firm.

Students are attracted to law study out of various motivations including making a good living, of course. Yet, it is fair to say that many were swept into the rigorous analytical training by idealism, a sense of history, a fascination with politics or public policy, or a simple desire to be of tangible to service to their fellow man who may have the aspiration of a new venture or simply be confronted with one of life’s unwanted difficulties, from accident to divorce. Notwithstanding the heavy handed instructional techniques of Professor Kingsfield portrayed in Turow’s best-selling novel One L, legal education does a reasonably decent job of matching the intellectual expectations of incoming students. The same cannot be said for large firm practice.

In the first year, students find a method of instruction far more active and challenging than that which they have encountered in college or graduate school. Faculty regale classes with the background stories of everyday legal dispute as well as the great struggles over civil rights and economic liberty. The study of the constitution is often in sync with the front page of the New York Times. Clinical programs engage students early in the human satisfaction of solving the problems of the elderly or the indigent or the handicapped. Trial and appellate practice programs entice students with the elegant gambits of the adversarial system and its unique search for truth. Pretty heady stuff. And the study, while arduous, is compatible with the lives of family and friend with which they entered. Yes, there are moments of busy-ness, "all nighters and what not," but these are small, short-lived trade-offs for the substance supplied.

The first tentative steps into practice also affirm student expectations. Students following their first year frequently volunteer for courts or public agencies, or work for modest hourly amounts in small practices. These opportunities give the theory of legal education, needed practical insight, and the students return for the second year of study rejuvenated with a sense of their own utility.

But then, with the advent of second year, and large firm, on-campus recruiting, a dark shadow lurks. Suspicions are raised. Returning 3Ls report both of their generous summer adventures and compensation, but also of encountering young lawyers in large law firms who at far too early an age are burnt out and disillusioned. Throughout the subsequent summer dance of recruitment, 2L summer associates see, but somehow do not fully comprehend, the plight of those who preceded them.  Wooed at fancy clubs and ballparks, the summer recruits see little point in hanging around those unfortunates who seem chained to their desks.  Of course, the pleasantries of the summer will fade soon enough; the law firm spider awaits the law student fly.

Now, of course, it is hard to shed an abundance of crocodile tears for partners and associates who are so handsomely compensated. Yet, as Turow writes, life is increasingly "a highly paid serfdom – the cage of relentless hours, ruthless opponents, constant deadlines and merciless inefficiencies."

At the heart of the slavery of large firm practice is the expectation that associates will bill somewhere in the range of 2200 hours. If you do the math, that figure is over six hours billed for every day of the year. As every new associate knows, even that extraordinary time investment understates the actual time spent. Neophyte lawyers understand the limits of their knowledge and often discount, even before partners do, the hours reported on time sheets out of the sheer embarrassment of not wanting one’s inexperience so openly displayed. Whatever the true figure, this billable hour expectation necessarily means little if any time for family, church, and community. And as Turow also illustrates, there is little opportunity for the kind of pro bono work that "nourishes the soul" or at least fulfills the sudden legal needs of relatives who waited until there was a lawyer in the family.

Turow does not call for lawyers – and he focuses on litigators since that is what he knows best – "to band together to abandon hourly billing." Frankly, it’s not clear why not. The case is overwhelming against it. As indicated above, the dispiriting effect on new lawyers is patent. Beyond that, the hourly billing structure puts clients and lawyers on opposite sides. The model rules admonish lawyers not to undertake representation that involves a concurrent conflict of interest and Turow wonders why the hourly billing system hasn’t been fingered as an Exhibit A. Clients can waive conflicts, but only upon full disclosure, which Turow rightly speculates on this subject is seldom provided. Asks Turow, "who ever says to a client that my billing system on its face rewards me at your expense for slow problem-solving, duplication of effort, featherbedding the workforce and compulsiveness – not to mention fuzzy math."

Hourly billing also complicates gender equity. By virtue of their disproportionate commitment to the upbringing of children, women lawyers are more willing to challenge the insanity of excessive hourly billing. That candor is usually rewarded not with male empathy, but with odd gender stereotyping that suggests only women care about work-family balance. Relatedly, large firm billing practice gives little concession or acknowledgment to the fact that a good deal of legal work need not be done in an expensive office, but thanks to technology, can be accomplished at remote sites, including one’s home.

What’s needed of course, beyond the candor of saying that the large firm billing system is broken, are alternative billing models for the delivery of legal services. These are elusive, as neither lawyer nor client at the inception of a relationship really have a good idea of what is likely to be encountered in the resolution of any particular problem. Hourly fees reconcile that difficulty, even if they ignore that the ABA model rules encourage consideration of multiple factors in the calculation of fees beyond time spent.

Again it’s not clear what the precise billing alternative is, and the point of this essay, like Turow’s, is to invite some serious thinking on the topic. Perhaps the only answer will turn out to be a regulatory prohibition of hourly billing as unprofessional and intrinsically prone to conflict of interest and lawyer-client dispute. If that is to be the conclusion, it would not be farfetched to contemplate an adjustable flat fee. Such a fee would combine a reasonable estimate of the value of the work modified either way for unexpected problem or ease of resolution. Whatever alternative is devised, no one should understate the need for such alternative to meaningfully confront and moderate greed, itself, whether on the part of associates succumbing to ridiculously generous starting salaries or partners addicted to astronomical and ever higher equity profits. It is understatement to suggest that it is increasingly hard to reconcile these sums to clients as a realistic measure of the legal services delivered. "Dear Brutus" was surely right that the fault is in us, but lawyers know that one of law’s purposes is to address such human imperfection.

As Turow writes, we need to move toward "something better than dollars times hours [since] we’ve created a zero-sum game in which we are selling our lives, not just our time." For the good of ourselves, our clients, and our profession, we should recognize that price as too steep.

 

Why 2008 Presidential Aspirants Should Meet the Human Person, Not a Virtual One

If the CNN-You Tube debate was intended to connect John Q. Citizen with the 2008 Democratic presidential aspirants, it was half-successful. At least the questions were new and unscripted.  The plain-spoken concerns expressed regarding the minimum wage, the nation’s security, health care, and education were genuine or important. It was the candidates' responses that seemed shop-worn, partisan, and well, just plain hollow. 

First, a couple of particulars:

Iraq hasn’t worked out well, but does Barrack Obama really think he demonstrates leadership by constantly re-litigating Senator Clinton’s initial support for the war?  It’s, frankly, old news. A bit more revealing was Senator Clinton’s refusal to meet with rogue leaders from North Korea, Iran or Syria without a "game plan." That’s far better than Obama’s willingness to "chat" with anybody, but it is still lacking in meaningful detail of what diplomacy with rogue nations looks like.

At the more general level: 

a voter named Chris opened the debate taking aim at the whole bunch: "Can you as politicians...actually answer questions rather than beat around the bush?" (One assumes this salvo was not a pun and the preposition "around" was not intended to be "upon.")  At the debate’s end, the answer still wasn’t clear. Indeed, we are not likely to know the answer until we count the ballots – not just to see who wins, but whether enough people, without cameras on their computers craving a minute of video fame, are inspired to participate. That two-thirds of eligible citizens haven’t even bothered to vote in recent elections suggests something more fundamental needs attention in the American body politic.

With only a secular vocabulary, however, what ails us is hard to articulate. We know that free markets are efficient, but we also see massive disparities in wealth. The middle class, which Aristotle opined was essential to good governance, often seems consciously short-changed. All but the very wealthy are meaningfully priced out – from the pursuit of public office, affordable housing, and even places of higher education that are founded on principles of social justice like, for example, Notre Dame with its $46, 730 tuition and fees.

We value freedom of expression; yet, we see that which we express become coarse and immoral. The internet which binds us in conversation is drenched in venomous "chat" and pornographic exploitation.

We value law, but there seems far too much of it to go around, and its administration is, or is troublingly alleged to be, based on who you know, rather than objective standard.

We yearn for the "good ole days," looking for a candidate who will restore our self-esteem and standing in the global community – restoring, if you will, the image of a scrappy, open, honest, compassionate, and principled America, rather than Abu Ghraib, U.S.A.

The conservative and liberal political vocabularies on the 2008 debate platform are inadequate to these tasks. They fail most specifically to account for the foundational idea that is America: men and women created equal seeking a well-ordered civic society in order to pursue a transcendent end.

Competing conservative and liberal ideas reflect a diminished conception of the person. Without a sense of man’s supernatural self, conservatives emphasize individuality overlooking the need for community and human solidarity; liberals turn "right" into assertions of demand, tolerating if not extolling policies – such as abortion or uncommitted sexual practice – that is utterly destructive of the family and the basic goods of nature. Since these conceptions of the person are incomplete or just plain wrong, they leave us yawning when they are re-articulated in partisan fashion by candidate A or B.

Of course, the failure of the United States to address its own drift does not exempt us from the resentment that our attachment to materialism and unstable and diluted cultural values produces among very poor nations. To them, we are endorsers of cultural decay exported by market practice and depicted in film. And when our materialistic choices (and their related dependency on foreign oil) end up associating us with the worst elements of other societies, we compound the error by indiscriminately backing the wrong team with our economic and military power.

A thoughtful presidential candidate will help us re-examine our national conscience. To contemplate what it might mean for ourselves, our nation and our world if we understood the human person authentically and completely. In so doing, Americans might well rediscover a calling to get beyond self; a capacity to understand that exceeds our own point of view; a willingness to see our destiny as inseparable from that of others; a grasp of how a true generosity of spirit breaks down barriers of suspicion and creates community and long-lasting friendship.

Politics was once not solely about gaining national office, but ascertaining a way to live. The candidate that discerns how that might be so in the future will deserve our trust.

Douglas W. Kmiec

Chair & Professor of Constitutional Law

Pepperdine University

In a recent column for Forbes magazine, I sought to further a national conversation on whether, and how, businesses (including law firms, of course) meet (or ignore) the importance of accommodating work and family. The burden of this conversation still singularly falls upon working women, so I am especially anxious to hear their personal stories or concrete proposals. But part of the incentive for doing this is to candidly admit that this male at least (and I suspect I am not alone), has let this topic go unexplored far too long. So men, too, ought to take this as an invitation to seriously grasp the significance of seeking a culture that understands work is for family, not the other way round. The essay below is a longer version of what appeared in Forbes, and I am hopeful that it will generate a similar, extraordinary and enthusiastic set of responses on this blog for no longer giving a "silent shrug" to the life we actually want to lead.

_____________________

Watching my twin daughters recently graduate from high school and their older sister from law school provoked moments of achievement and pride, but also a fair amount of puzzlement – which, frankly, was not present when my sons marched across similar platforms a few years back.

Are the opportunities awaiting my daughters and the young women of America as they complete college and professional school as great as those available to young men? And if they aren’t, is it because the marketplace knows these highly intelligent – but female – graduates actually have more in mind then just getting a job – namely, raising a family? In over thirty years of law school teaching, this is a quandary posed repeatedly by female law graduates. The answer from many businesses or law firms has been a silent shrug.

The indifference may not long be sufficient. Whether or not Hillary Clinton crashes through the political glass ceiling, the plea to rethink the organization of society to better accommodate work and family seems more determined in the present generation. This is a cohort of young people described by Thomas Friedman of the "World is Flat" fame as "the Quiet Americans," who he said nevertheless seek to "venture into the world either to repair it or do business with it."

Evening out the female disadvantage in the culture has been the subject, of course, of varying, and often highly controverted, prescriptions. Justice Ginsburg, for example, opined just a few weeks ago that if women did not keep unrestricted access to abortion, they would be reduced to "second class citizens." The Supreme Court had previously justified the abortion right squarely on the need to facilitate women’s "social and economic life in the nation." This is an understandable sentiment coming from Justice Ginsburg, a brilliant jurist, who, when she graduated from Columbia in 1959 was spurned by Felix Frankfurter for a clerkship on the Court upon which she now sits and found the door closed to her at a dozen New York law firms. Yet, aside from its deeply troubling moral conundrums, abortion’s availability hardly seems up to its billing. It may unburden a certain number of women from an ill-timed pregnancy, but ultimately, it doesn’t really accommodate work and family, so much as snuff out one in favor of the other.

Other legal avenues seem likewise inadequate or confused. Take the revival of the unsuccessful Equal Rights Amendment of the 1970s. The key sentence is twenty-three words in length, reciting that "equality of rights under law shall not be denied or abridged by the United States or by any State on account of sex." The Amendment last time came within three states of the required three-fourths for ratification. Now renamed the Women’s Equality Amendment, the proposal has several hundred sponsors in the Democratic Congress, who want to send it back to the States for approval. But everything about this constitutional addendum is contested, from what it will now take to approve it to its meaning.

Some argue that the previous state approvals are still valid highlighting that it took 203 years to pass the 27^th Amendment limiting congressional pay raises; others deny it, pointing out the ERA last time was made expressly subject to approval within a seven year period that was extended to ten, and it still failed. Many of the amendment’s current boosters want to start from scratch, but then, what does it mean. Phyllis Schlafly made a career of opposing the earlier measure, positing that it would put women in ground combat, abolish single-gender outfits like the girl scouts, and even take social security survivor advantages from widows. These same arguments are back, but like the legal debate about abortion, all of this yammering seems several formal leagues removed from the question of career and children that women remain uniquely called upon by our culture to confront.

While equal pay is mandated by several federal statutes, it hardly seems a reality when women still make less than 80 percent of a man’s wage for the same work. Laws are laws, but the marketplace finds its own way to identify what we’re willing to pay for – and at the moment, we are willing to ante up for full-time work, but not the value women – since Cain popped Abel with that rock – have been giving to families out of simple, uncompensated love.

The late John Paul II wrote: "the mentality which honors women more for their work outside the home than for their work within the family must be overcome." A very nice sentiment, of course, which captures the irreplaceable social value of the family – Cain notwithstanding – to reductions in violent crime, child poverty, and illiteracy. Of course, it’s another comment from a man, and it curiously leaves out why men, too, should not be honored more for their family activity.

It’s unclear to me how my daughters, or yours, are going to navigate these issues, but I know this, on their success, ours depends.

 

Douglas W. Kmiec

 

Caruso Family Chair and Professor of Constitutional Law, Pepperdine University; Former U.S. Assistant Attorney General and Head of the Office of Legal Counsel, U.S. Department of Justice

A No Confidence vote would be a constitutional mistake.

There is no basis to remove the Attorney General for the proper exercise of constitutional authority. The President of the United States has the constitutional authority to appoint and remove U.S. attorneys. This is not an arbitrary, but carefully articulated and reserved, power to the President that has been repeatedly reaffirmed by the U.S. Supreme Court and that ensures the accountability and effectiveness of subordinate executive officers. With a purely executive agency like that of the Department of Justice, a decision to remove requires no more than, as the experience of FDR and multiple presidents before and after him illustrate, that the President and subordinate merely not see "eye to eye." As President Grant told the Congress following the Civil War: "it could not have been the intention of the framers of the Constitution, that [the Senate] have the power to retain in office persons placed there by federal appointment against the will of the president." The Constitution does not permit Senator Schumer or any other member of the Senate to insist directly or indirectly that President Bush continue in position any particular U.S. Attorney. Because that is so, it is not surprising that Senator Schumer has not produced any constitutional basis for examining or second-guessing the Attorney General’s decision to remove a handful of the existing U.S. Attorneys. In this respect, it is Orwellian to suggest that the fulfillment and defense of a constitutional duty could be the basis of removal of the Attorney General. To preclude the President from exercising his unfettered removal authority would be "inconsistent with a faithful and efficient administration of the government," wrote Grant. For the President to remove his Attorney General who has so steadfastly and correctly defended this essential aspect of the separation of powers would be to do great damage to the constitutional system.

The Admitted Management Mistakes Are Not of a Constitutional Magnitude

Alberto Gonzales is the second of eight children of migrant farm workers, Pablo and Maria Gonzales. A former Justice of the Texas Supreme Court and Texas Secretary of State, Judge Gonzales has a calm and deliberative manner that listens more than it imposes. A person of integrity, in making the transition from White House Counsel to Attorney General, he unadvisedly chose to delegate coordination of the review of U.S. Attorneys to talented, but young, assistants who in some respects were overly eager in the task, and in other ways, were overly casual in documenting the benefit of the removals for the President. Because of this delegation, Judge Gonzales under-appreciated the problematic nature of both removing selective U.S. Attorneys and was overly trusting of the removal recommendations made to him. Judge Gonzales has conceded in public testimony that this delegation was a mistake. It was. The U.S. Attorneys removed were conscientious professionals, who may or may not have always fully understood or fully implemented the prosecutorial policy emphasis of the administration, but to a person, they served the United States and deserved better than a pink slip signed by a junior counsel. They certainly deserved not to have their particular shortcomings broadcast to the world, whether those had been noticed by a Democratic or Republican member of Congress (and there is in the public record some not unimportant criticism from both political parties of the few U.S. Attorneys ultimately asked to resign). But these are management mistakes that do not overshadow the conscientious manner in which the general work of the Department of Justice has been performed, or by which it should be measured.

The Importance of Legal Judgment in A Time of War

In this, the recent testimony of former Deputy Attorney General James Comey is not overlooked. Mr. Comey, too, is a man of great ability who served the Department of Justice well. Apparently, and this is hardly unusual in the law, there was disagreement between then-White House Counsel Gonzales and Mr. Comey over the legality of a program of great salience to meeting the ongoing terrorist threat. Apparently, Mr. Comey had refused (the program is classified so we cannot know for sure and Mr. Comey was careful not to be too explicit) to recertify the terrorist surveillance program. To some legal scholars, this program is a vindication of the President’s constitutional authority to undertake military intelligence in a time of war as every other war time president has done; to other scholars, the program is a disregard of statutory limitations that have been created to prevent spying on U.S. citizens engaged in protected speech activity during the Nixon administration. At one point, Mr. Comey was acting as Attorney General during a brief period when John Ashcroft was hospitalized. Mr. Gonzales was dispatched to Mr. Ashcroft’s hospital bed to see if it were possible to confirm that he concurred with Mr. Comey’s decision. It is frankly not clear whether Mr. Ashcroft concurred or not, though it is reasonable to surmise that the President was convinced that the surveillance activity could not be interrupted without doing harm to the nation. At this very time, there likely was an uptick in monitored terrorist activity which would have been noticeable to national security officials, since tragically, within the very same hours, there was a massive loss of life at the hands of Al Qaeda at a Madrid train station.

This is a difficult time for the nation and its legal system. Key aspects of the rule of law are necessarily challenged by an unconventional, international adversary that has successfully attacked us and others in the Western world, and by word and deed, has vowed to repeat these attacks. Chief Justice Rehnquist opined that in a conventional war, "the law goes silent," since the obligation to use force to defend the nation necessarily subordinates some of the highly formal legal considerations that are expected in a time of peace. We confront an enemy that close to six years after the 9/11 attack is not well understood. It is an enemy, however, that consistently demonstrates a willingness to target civilian populations (see the recent indictment earlier this month by the Department of Justice of six men with an Al Qaeda inspired plan for a slaughter of the military soldiers housed at Fort Dix, New Jersey). Providing for the common defense requires that the leadership of the Department of Justice not be distracted by unadorned politics. The political oversight of Congress of the executive branch can be a salutary if it is truly designed to advance the mission of federal agencies, and not merely, to either displace executive judgment or score partisan advantage. Much to its credit, the oversight of Congress did identify a management shortcoming in the Gonzales Justice Department, but to make this the basis of removal, would be to grossly overstate its importance and then disregard the remaining work of the Attorney General and the men and women who serve with him that is without question important to the rule of law.

White House Involvement is Not A Crime -- It is, after all, the President's Power to Appoint and Remove

Monica Goodling testified she "crossed the line" with respect to making political inquiry of applicants for civil service or so-called "career" jobs. Presumably, this admission was part of the reason she sought use immunity. Yet, the admission also puts into relief the difference between a presidential appointment for U.S. Attorney, which, by design, is a political appointment, and a civil service job which is not. Following Monica Goodling’s forthright testimony, it seems some of the detractors of the Attorney General now concede that political considerations necessarily play a role in U.S.Attorney appointment and removal. Were that concession generally made and not obfuscated with the Goodling admission about staff jobs, a great deal of the current Senate and House inquiry into what role the White House did or did not play with regard to the dismissal of a handful of U.S.Attorneys would be of little relevance to anything other than, as the President has suggested, "political theater."

Differentiating the Power to Remove

Yet, political considerations brought to bear upon removal are more sensitive than appointment, but why is that? In constitutional parlance, both are two sides of the same coin of accountability, which is why the Supreme Court treats the power to remove as an incident of the power to appoint. Again, no one seriously argues that U.S.Attorneys are appointed without regard to political affiliation. Quite the contrary, it is often because of their political affiliation that lawyers seeking these important posts have come to the notice of a president, and subject to evidence of legal competence examined in the confirmation process, receive appointment. This is what national elections are all about. The policies of an elected President are given life by his appointees. Nor can a U.S. Attorney simply ignore the prosecutorial policy emphasis of his or her President. It may distress Democrats that Republicans think voter fraud is a worse problem than voter exclusion (if that is indeed what Republicans think), but if those are the priorities of the elected President, the Department of Justice, like every other executive agency, ought to be reasonably responsive to that policy emphasis. As President Carter stated at the swearing in of Attorney General Griffen Bell: "To the maximum degree possible, the Attorney General should personify what the President of the United States is--attitudes, philosophies, commitments. . . ."

Nevertheless, removal for political reasons is different. It is fundamentally so because of the vast discretion U.S.Attorneys have to enforce, or not, existing law. As for late Supreme Court Justice Robert Jackson, himself Attorney General to Franklin Roosevelt, observed, there are too few resources to enforce every law. The prosecutor must choose, and if he does so, on a political basis, there is a profound injury to the rule of law, and especially the concept of equal justice under law. Prosecutorial decisions "must be based on the facts and the law and nothing more." This is indeed "the heart of the mission of the Department of Justice." Has this sacred principle has been transgressed in this case?

David Iglesias -- Not Every Congressional Inquiry is an Ethics Violation -- Some Inquiry is Legitimate Oversight

Consider the case of David Iglesias. Mr. Inglesias has testified that Senator Domenici called him to inquire whether indictments in an Albuquerque corruption case would be issued before the November 2006 elections. According to Iglesias, Domenici "asked, ‘Are those going to be filed before November?’" " I said I didn't think so. He said, ‘I'm very sorry to hear that.’And then the line went dead." The Senator has confirmed this inquiry.

Gonzales opponents say it comes as no surprise (if a disappointment all the same) that prominent politicians would be making such inquiries. Perhaps the reason it "comes as no surprise" is because the inquiry could in fact be little more than expected legislative – executive interaction over the proper enforcement or implementation of law. Legislative oversight occurs in many forms: from open hearings, to telephone calls, and follow-on correspondence responding to an inquiry from a constituent. There is no reason to believe that such inquiry is the "urgings of a prominent politician that a criminal case be brought to influence the outcome of an impending, hard-fought election." Indeed it is entirely possible that Senator Domenici’s inquiry (and implied charge that Iglesias was dragging his feet) could have been correct. If so, Mr. Iglesias’ slow progress might have been justifiable reason for sanction.

As a general matter, U.S.Attorneys are instructed not to confirm or deny investigations or decisions about investigations that have not been made public. It is for this reason that the Department of Justice has for many years sought to channel communication between Congress and the Department of Justice through a single Office of Legislative Affairs. Yet, it is hardly news in Washington that senators and congresspersons do not always limit their communication on behalf of constituents in this way. (Take for example Senator Feinstein’s well-known letters of complaint to the Attorney General about the immigration enforcement practices of former U.S.Attorney Carol Lam). This is why U.S.Attorneys are instructed to notify main justice when an irregular contact occurs – a nicety Mr. Iglesias chose to ignore.

This is not to suggest that the Domenici contact, though irregular by Department of Justice desired procedure, was ethically improper. It is hard to see how a conversation as succinct as the one reported could constitute a violation of legislative ethics, but I leave that to the legislative fact finders. But whether or not the House or Senate ethics rules – which limit contact by a legislative member with the executive branch over a matter under formal consideration by the executive branch – was scrupulously observed, it does not form a basis for the removal of the Attorney General.

No Fish in this Fishing Expedition

In the end, the fault ascribed to the Attorney General is premised upon the speculation that in the case of Mr. Iglesias and the others removed, the Attorney General did not sufficiently, or personally, evaluate the merits of the legislative or other complaints that had been raised against a handful of sitting U.S. Attorneys. It is not clear that the public record establishes this lack of due diligence, but it is constitutionally off-point. The removal of U.S. Attorneys is not premised upon a showing of "cause," or legislative second-guessing of what cause various executive officials may have individually discerned. Mr. Gonzales has conceded the mistake of over-reliance upon Kyle Sampson, his young chief of staff. Meanwhile, both Monica Goodling and Mr. Sampson have revealed their own extensive consultations and interaction with Paul McNulty, the Deputy Attorney General -- a very well-regarded and experienced former U.S. Attorney. While there is some disagreement among the fact witnesses, it appears obvious that Mr. McNulty was very much involved in the removal decision-making. If so, even the claimed management shortcoming is now open to some doubt. Given his stature and experience, a delegation of the power of review to the Deputy Attorney General to evaluate the performance of U.S.Attorneys would be unassailable.

A No Confidence Vote in The Separation of Powers?

Those advocating a no-confidence vote suggest that the Department of Justice is in "the worst crisis for at least a generation" and that it will not "abate as long as the Attorney General remains in office." Sadly, baseless charges have taken a toll on the Department and its ability to function, but a no-confidence vote followed by resignation or removal is not the remedy. If there is no evidence of wrongdoing or corruption of any type – and despite hours of legislative and journalistic time, none has been forthcoming -- and if, except for management failings that are easily correctable, Gonzales has merely vindicated the authority of the President and that vested in the Office of the Attorney General, does it really bolster the morale of the Department to have its leadership removed or bullied into resigning without just cause?

Unifying the power to enforce with the power to legislate is two thirds of the way toward the tyranny that Madison advised us to avoid with the separation of powers.

 

Abortion Puts the Burden on Women to Satisfy Corporate America When It Should be the Reverse

Douglas W. Kmiec

Caruso Family Chair & Professor of Constitutional Law,

Pepperdine University 

Gonzales v. Carhart is a faithful application of the Casey precedent, reaffirming that the States "retain a critical and legitimate role in legislating on the subject of abortion. . . . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential." In this sense, Carhart is not "alarming," as claimed by Justice Ginsburg in dissent. It merely vindicates the balance that had been struck in Casey and that had been troublingly disregarded in Stenberg v. Nebraska.

In the highly charged and over politicized environment in which we live, it may be vain to hope that the contending sides will now concede the constitutionality of a prohibition of the partial-birth practice as common ground in what Professor Laurence Tribe thoughtfully described some years ago as "a clash of absolutes," but it is that. The Roberts Court, and Justice Kennedy in particular, should be praised for writing no more broadly than necessary to allow the contending sides to stand upon that ground.

The dissent, however, posits that the different result in Carhart turned solely upon the different composition of the Court. This is most unfortunate. A Court dedicated to persuading its fellow citizens of the importance of the rule of law does itself, and its nation, a disservice when it mocks the very principle it asks the populace to honor. Putting aside the defiant aspects of Justice Ginsburg’s dissenting call for the Court to set aside the Carhart precedent at the earliest possible moment, her reflections upon the relationship between abortion and equality warrant careful analysis.

In a thoughtful essay for the Los Angeles Times (April 20, 2007), Professor Cass Sunstein of the University of Chicago noted correctly that Justice Ginsburg in her dissent in Carhart sought to re-anchor the abortion right on equality rather than liberty or privacy which has been the originally claimed basis for the right in Roe and Casey. Professor Sunstein observes that, "for Ginsburg, this alternative understanding of the right to choose has concrete implications." Moreover, Professor Sunstein thinks the new equality rationale for abortion is "powerful," and he wishfully anticipates that it may yet become a the majority view.

Why is shifting the abortion justification to equality powerful or advantageous? Professor Sunstein writes: "It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities." These propositio