The Gay Men’s Chorus of Washington was all set Saturday night [Dec. 18] for its seasonal frolic “Men in Tights: A Pink Nutcracker.” But artistic director Jeff Buhrman wanted to begin on a serious note.
A few hours earlier, the U.S. Senate had completed congressional action on a bill to repeal the “don’t ask, don’t tell” policy on gays in the military. In honor of the occasion, Buhrman asked the audience at George Washington University’s Lisner Auditorium to stand and join in singing “The Star-Spangled Banner.”
It was an “emotional moment,” one friend later commented on Facebook, to hear so many gay and lesbian Americans join in a celebration of their patriotism. When younger, my friend wrote, “I’d have been so proud to have served my country openly as a gay man. Instead, I had to serve with a portable closet by my side to hide in.”
Not yet but soon, thousands of gay men and lesbians already in the military and many others eager to join will be legally free to make up their own minds whether to stay in or come out of the closet. The hard-fought, down-to-the-wire victory gives Gay America something to celebrate this holiday season. Overall, however, both President Obama and the Democratic-controlled Congress get only middling grades for advancing LGBT rights.
Obama took office amid much optimism among LGBT Americans and their straight allies. He had campaigned on a platform that included repealing “don’t ask, don’t tell” as well as the Defense of Marriage Act (DOMA), the 1996 law that prohibits federal marital benefits for same-sex couples. He also backed the Employment Non-Discrimination Act (ENDA) to prohibit job discrimination on the basis of sexual orientation. And he favored amending the federal hate crimes law to include offenses aimed at gays or lesbians.
With the Democratic-controlled Congress about to yield to divided government on Capitol Hill, only two of those items have been approved. Neither has yielded concrete results.
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act became law in October 2009. But despite the recent flurry of news about gay-bashing and gay-bullying, the Justice Department has yet to invoke the law against any anti-gay offense.
The “don’t ask, don’t tell” repeal itself provides that the 1993 law remains on the book for now until the Pentagon can prepare new regulations and training. Then the president, secretary of defense, and chairman of the Joint Chiefs of Staff all have to certify to Congress that repeal is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” Until then, openly gay or lesbian service members are theoretically subject to discharge.
Gay rights organizations had high hopes for the job-discrimination bill as Obama and Congress started work in 2009. But the bill fell victim to other priorities, in particular health-care reform. As for repealing DOMA, the issue never made it past the starting gate in Congress.
In their last-ditch effort to keep “don’t ask, don’t tell” on the book, Senate Republicans echoed anti-gay organizations in depicting repeal as a political payoff by the Democrats to “the homosexual lobby.” True, gay political organizations are predominantly Democratic. That is hardly a surprise given the Republican Party’s stout opposition to gay rights measures.
For many gay and lesbian Americans, however, the issues are not political, but personal. Consider, for example, Lisa Howe, fired earlier this month as women’s soccer coach at Belmont University in Nashville, Tenn., after she told her team that she and her partner are expecting a child. Howe had previously kept her sexual orientation private, but thought she could share her good news with the team. ENDA might have allowed her to keep her job.
With DOMA on the books, many same-sex couples are paying more in taxes or receiving less in federal benefits than their straight-sex counterparts even in the five states and the District of Columbia where gays and lesbians supposedly enjoy equal marriage rights. A federal judge in Massachusetts ruled the law unconstitutional on equal protection grounds this summer, but the Obama administration is continuing to claim that it is obliged to defend the law in court.
Similarly, the administration had been defending “don’t ask, don’t tell” in court even as it was urging Congress to repeal the law. A federal judge in Riverside, Calif., ruled the law unconstitutional earlier this fall and went so far as to block its enforcement. The administration rushed to a federal appeals court to overturn the injunction. With the law still on the books, it will be interesting to see whether the case continues or is put on hold.
With Obama set to sign the “don’t ask, don’t tell” repeal on Wednesday [Dec. 22], gay rights leaders are emphasizing that much has been accomplished and that much remains to be done. At least on Saturday night, however, hundreds of Washingtonians were proud to join the Gay Men’s Chorus as they raised their voices to sing of a rainbow flag that waves “o’er the land of the free … and the home of the brave.”
Monday, December 20, 2010
Tuesday, December 14, 2010
Trying to Avoid Bad Law in the WikiLeaks Case
Hard cases make bad law, it is said. The U.S. government has a hard case to try to make against WikiLeaks founder Julian Assange for masterminding the biggest dump of classified government secrets in history. It will be up to the courts to try not to make bad law out of it.
On the surface, of course, the case looks like prosecutor’s child play. Assange has boasted globally about possessing what he claims are 250,000 classified diplomatic cables from the U.S. State Department. Over the past three weeks, he has been publishing them on the WikiLeaks site for all the world to see.
Confronted with such brazen flouting of the law, the government could hardly be expected to sit by idly, even given the Obama administration’s oft-stated commitment to transparency and openness. So no one should be surprised by Attorney General Eric Holder’s comment on Nov. 29, the day after the classified cables began appearing, that the government had “an active, ongoing criminal investigation with regard to this matter.”
A closer look, however, makes clear that any prosecution poses difficult problems for the government. It would also carry an inevitable risk of infringing freedom of speech and freedom of the press not just for Assange but also for established news organizations and the public at large.
The most obvious legal vehicle for prosecuting Assange would seem to be the Espionage Act. The 1917 law makes it a crime for anyone “having unauthorized possession” of information pertaining to national defense to publish or retain it if the information could be “used to the injury of the United States or to the advantage of any foreign nation”
As soon as the law was mentioned, however, legal experts began pointing out the difficulties. Steven Vladeck, a law professor at American University in Washington, notes that the government has never successfully prosecuted anyone under the Espionage Act for receiving as opposed to leaking classified information.
In the most analogous case, the government failed in prosecuting two lobbyists with the American Israel Public Affairs Committee (AIPAC) for obtaining classified military information and passing it along to Israeli officials. The government moved to dismiss the case in late April 2009 after the judge ruled the government had to prove that the two lobbyists knew the disclosure would harm the United States.
Government lawyers may have had that ruling in mind when the State Department’s legal adviser, Harold Hongju Koh, warned Assange in advance of publication of the potential harms that could result. Koh’s letter, dated Nov. 27, claimed that disclosures would “place at risk” the lives of journalists, human rights activists, bloggers and others as well as “ongoing military operations” and “ongoing cooperation” with other countries.
Maybe, but no conscientious court would accept the claimed dangers just on the government’s say-so. And to date the evidence of concrete harms is lacking.
Admittedly, the United States has been embarrassed by some of the candid disclosures from diplomats in the field. But Assange claims to be redacting the cables before publication. In any event, host countries that would do harm to human rights activists must already be aware of their conversations with U.S. diplomats. And it is unclear that the State Department diplomats have been guilty of loose lips in regard to ongoing military operations.
As an alternative, Justice Department lawyers are reportedly looking at the possibility of prosecuting Assange for conspiracy or trafficking in stolen property. That kind of prosecution would also present problems of proof. First is the conceptual difficulty of treating computerized copying as theft; the government, after all, still has everything that Assange claims to have.
More significantly, the government might need to show that Assange was actively involved in the leak itself. The leaker is widely believed to be Bradley Manning, an Army private and intelligence analyst in Iraq, who has been arrested and charged with unauthorized disclosure of classified information. Perhaps Manning has given government investigators some inculpatory information about Assange, but if so it has not yet been disclosed.
Even if Assange can be implicated directly in the leak, the government will have to walk a delicate line to avoid a prosecution that would criminalize the ordinary journalistic practice of ferreting out information that the government wants to keep secret. The government is contending that Assange is no journalist, but, as Vladeck suggests, Assange’s status as a journalist or not is not the issue. The First Amendment, after all, extends not only to established news organizations but also to pamphleteers, street-corner speakers, and, yes, Internet publishers of all sorts.
Apart from these problems, the government will first have to get its hands on Assange, who was ordered released on bail today [Dec. 14] pending an extradition request from Sweden to face charges of sexual assault. It is unclear how either England or Sweden would respond to a U.S. extradition request for what courts in either country might view as a political issue instead of a true crime.
Events may be coming to a head soon. Assange’s attorney, Geoffrey Robinson, is quoted as saying that the government has convened a federal grand jury in Alexandria, Va., and that an indictment may be imminent. If so, it will be only the first step in a hard case with grave risks for the government if it loses or the First Amendment if it wins.
On the surface, of course, the case looks like prosecutor’s child play. Assange has boasted globally about possessing what he claims are 250,000 classified diplomatic cables from the U.S. State Department. Over the past three weeks, he has been publishing them on the WikiLeaks site for all the world to see.
Confronted with such brazen flouting of the law, the government could hardly be expected to sit by idly, even given the Obama administration’s oft-stated commitment to transparency and openness. So no one should be surprised by Attorney General Eric Holder’s comment on Nov. 29, the day after the classified cables began appearing, that the government had “an active, ongoing criminal investigation with regard to this matter.”
A closer look, however, makes clear that any prosecution poses difficult problems for the government. It would also carry an inevitable risk of infringing freedom of speech and freedom of the press not just for Assange but also for established news organizations and the public at large.
The most obvious legal vehicle for prosecuting Assange would seem to be the Espionage Act. The 1917 law makes it a crime for anyone “having unauthorized possession” of information pertaining to national defense to publish or retain it if the information could be “used to the injury of the United States or to the advantage of any foreign nation”
As soon as the law was mentioned, however, legal experts began pointing out the difficulties. Steven Vladeck, a law professor at American University in Washington, notes that the government has never successfully prosecuted anyone under the Espionage Act for receiving as opposed to leaking classified information.
In the most analogous case, the government failed in prosecuting two lobbyists with the American Israel Public Affairs Committee (AIPAC) for obtaining classified military information and passing it along to Israeli officials. The government moved to dismiss the case in late April 2009 after the judge ruled the government had to prove that the two lobbyists knew the disclosure would harm the United States.
Government lawyers may have had that ruling in mind when the State Department’s legal adviser, Harold Hongju Koh, warned Assange in advance of publication of the potential harms that could result. Koh’s letter, dated Nov. 27, claimed that disclosures would “place at risk” the lives of journalists, human rights activists, bloggers and others as well as “ongoing military operations” and “ongoing cooperation” with other countries.
Maybe, but no conscientious court would accept the claimed dangers just on the government’s say-so. And to date the evidence of concrete harms is lacking.
Admittedly, the United States has been embarrassed by some of the candid disclosures from diplomats in the field. But Assange claims to be redacting the cables before publication. In any event, host countries that would do harm to human rights activists must already be aware of their conversations with U.S. diplomats. And it is unclear that the State Department diplomats have been guilty of loose lips in regard to ongoing military operations.
As an alternative, Justice Department lawyers are reportedly looking at the possibility of prosecuting Assange for conspiracy or trafficking in stolen property. That kind of prosecution would also present problems of proof. First is the conceptual difficulty of treating computerized copying as theft; the government, after all, still has everything that Assange claims to have.
More significantly, the government might need to show that Assange was actively involved in the leak itself. The leaker is widely believed to be Bradley Manning, an Army private and intelligence analyst in Iraq, who has been arrested and charged with unauthorized disclosure of classified information. Perhaps Manning has given government investigators some inculpatory information about Assange, but if so it has not yet been disclosed.
Even if Assange can be implicated directly in the leak, the government will have to walk a delicate line to avoid a prosecution that would criminalize the ordinary journalistic practice of ferreting out information that the government wants to keep secret. The government is contending that Assange is no journalist, but, as Vladeck suggests, Assange’s status as a journalist or not is not the issue. The First Amendment, after all, extends not only to established news organizations but also to pamphleteers, street-corner speakers, and, yes, Internet publishers of all sorts.
Apart from these problems, the government will first have to get its hands on Assange, who was ordered released on bail today [Dec. 14] pending an extradition request from Sweden to face charges of sexual assault. It is unclear how either England or Sweden would respond to a U.S. extradition request for what courts in either country might view as a political issue instead of a true crime.
Events may be coming to a head soon. Assange’s attorney, Geoffrey Robinson, is quoted as saying that the government has convened a federal grand jury in Alexandria, Va., and that an indictment may be imminent. If so, it will be only the first step in a hard case with grave risks for the government if it loses or the First Amendment if it wins.
Sunday, December 5, 2010
Handicapping Kennedy’s Vote on Gays in the Military
Thirty years ago, a young federal appeals court judge in California voted to uphold the Navy’s then-existing policy of discharging any service member who engaged in homosexual acts. The “blanket rule” was “harsh” in individual cases and perhaps “broader than necessary,” the judge wrote. But the Navy had “multiple grounds” for adopting the regulation, the judge concluded, including potential conflicts between homosexual service members and others who might “despise” or “detest” homosexuality.
Three decades later, the fate of the military’s current “don’t ask, don’t tell” policy on gay service members may depend on whether Supreme Court Justice Anthony M. Kennedy weighs the balance between individual rights and military necessity the same way he did in 1980. Two days of hearings on the policy before the Senate Armed Services Committee [Dec. 2-3] left it uncertain whether Democrats who want to end the policy in the current lame-duck session of Congress can overcome a Republican roadblock led by the committee’s ranking GOP member, Arizona’s John McCain.
Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, both testified strongly in favor of repealing the 1993 law prohibiting openly gay men or lesbians from serving in the military. Along with principled reasons for their position, both men warned that the courts might force the military to scrap the policy overnight if Congress fails to act. As Gates put it, “Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts.”
Republicans were unmoved. McCain, the decorated Vietnam War hero, seized on concerns from the Army and Marine Corps service chiefs to restate his own opposition to repeal, at least while U.S. forces are in combat in Afghanistan. For his part, Alabama’s Jeff Sessions, who serves on both the Armed Services and Judiciary committees, dismissed fears of a judicial reversal. Sessions said he was “absolutely convinced” the current Supreme Court would uphold “don’t ask, don’t tell” if the challenge reached the justices.
As on so many ideologically fraught issues, any prediction about the court’s likely stance turns on Kennedy. The liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — can all be counted as potential votes to strike down the law as an unconstitutional discrimination against gay service members. But Chief Justice Roberts and his fellow conservatives — Scalia, Thomas, and Alito — seem likely to uphold the law.
The coincidence of Kennedy’s encounter with the military’s earlier policy while serving on the Ninth U.S. Circuit Court of Appeals provides some clues as to his possible stance. But they are 30-year-old clues. Much has changed since then — in the nation, at the Supreme Court, and seemingly in Kennedy’s own judicial persona.
Writing for the three-judge panel in Beller v. Middendorf, 632 F.2d 788 (CA9 1980), Kennedy opened by saying that the wisdom of the Navy’s policy was for “the political branches” to decide, not the courts. He rejected any procedural grounds for reinstating the three discharged sailors who brought the challenge and then moved to the harder question: whether the policy violated any liberty interest protected by substantive due process.
Kennedy acknowledged what he called the “substantial academic comment” defending the choice to engage in homosexual conduct as a “fundamental right.” But he noted “substantial authority to the contrary,” including the Supreme Court’s summary decision in 1976 rejecting a constitutional challenge to anti-sodomy laws. Some regulation of consensual homosexual conduct might be subject to challenge, Kennedy continued, but the Navy had advanced sufficient reasons to uphold its policy under a rational-basis standard.
As an intermediate appellate judge only five years on the bench, Kennedy may have had no other choice in the case. But his comments signaled solicitude toward gays that developed fully after he joined the Supreme Court. In 1996, he wrote the decision, Romer v. Evans, that struck down Colorado’s anti-gay rights initiative on the ground that it singled out gays for unfavorable treatment. And seven years later he again wrote for the Court in striking down state anti-sodomy laws. Kennedy’s broadly worded opinion in Lawrence v. Texas (2003) established the very right that he had not found in 1980: a constitutional right to consensual, homosexual conduct.
Despite those rulings, Frank Colucci, a political scientist at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence (University Press of Kansas, 2009), says it will be “very hard” for Kennedy to vote to overturn “don’t ask, don’t tell.” Hesitantly, Colucci thinks Kennedy likely again to uphold a policy defended on grounds of military necessity. But he also believes Kennedy “will ask the military to make the argument: what is the military necessity?”
For that very reason, my own prediction is the opposite. The Pentagon task force’s report on “don’t ask, don’t tell” undermines any justifications offered for the policy, especially if the law is subject to heightened scrutiny in a post-Lawrence world. The court cases challenging “don’t ask, don’t tell” may not reach the Supreme Court soon. But when they do, the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.
Three decades later, the fate of the military’s current “don’t ask, don’t tell” policy on gay service members may depend on whether Supreme Court Justice Anthony M. Kennedy weighs the balance between individual rights and military necessity the same way he did in 1980. Two days of hearings on the policy before the Senate Armed Services Committee [Dec. 2-3] left it uncertain whether Democrats who want to end the policy in the current lame-duck session of Congress can overcome a Republican roadblock led by the committee’s ranking GOP member, Arizona’s John McCain.
Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, both testified strongly in favor of repealing the 1993 law prohibiting openly gay men or lesbians from serving in the military. Along with principled reasons for their position, both men warned that the courts might force the military to scrap the policy overnight if Congress fails to act. As Gates put it, “Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts.”
Republicans were unmoved. McCain, the decorated Vietnam War hero, seized on concerns from the Army and Marine Corps service chiefs to restate his own opposition to repeal, at least while U.S. forces are in combat in Afghanistan. For his part, Alabama’s Jeff Sessions, who serves on both the Armed Services and Judiciary committees, dismissed fears of a judicial reversal. Sessions said he was “absolutely convinced” the current Supreme Court would uphold “don’t ask, don’t tell” if the challenge reached the justices.
As on so many ideologically fraught issues, any prediction about the court’s likely stance turns on Kennedy. The liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — can all be counted as potential votes to strike down the law as an unconstitutional discrimination against gay service members. But Chief Justice Roberts and his fellow conservatives — Scalia, Thomas, and Alito — seem likely to uphold the law.
The coincidence of Kennedy’s encounter with the military’s earlier policy while serving on the Ninth U.S. Circuit Court of Appeals provides some clues as to his possible stance. But they are 30-year-old clues. Much has changed since then — in the nation, at the Supreme Court, and seemingly in Kennedy’s own judicial persona.
Writing for the three-judge panel in Beller v. Middendorf, 632 F.2d 788 (CA9 1980), Kennedy opened by saying that the wisdom of the Navy’s policy was for “the political branches” to decide, not the courts. He rejected any procedural grounds for reinstating the three discharged sailors who brought the challenge and then moved to the harder question: whether the policy violated any liberty interest protected by substantive due process.
Kennedy acknowledged what he called the “substantial academic comment” defending the choice to engage in homosexual conduct as a “fundamental right.” But he noted “substantial authority to the contrary,” including the Supreme Court’s summary decision in 1976 rejecting a constitutional challenge to anti-sodomy laws. Some regulation of consensual homosexual conduct might be subject to challenge, Kennedy continued, but the Navy had advanced sufficient reasons to uphold its policy under a rational-basis standard.
As an intermediate appellate judge only five years on the bench, Kennedy may have had no other choice in the case. But his comments signaled solicitude toward gays that developed fully after he joined the Supreme Court. In 1996, he wrote the decision, Romer v. Evans, that struck down Colorado’s anti-gay rights initiative on the ground that it singled out gays for unfavorable treatment. And seven years later he again wrote for the Court in striking down state anti-sodomy laws. Kennedy’s broadly worded opinion in Lawrence v. Texas (2003) established the very right that he had not found in 1980: a constitutional right to consensual, homosexual conduct.
Despite those rulings, Frank Colucci, a political scientist at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence (University Press of Kansas, 2009), says it will be “very hard” for Kennedy to vote to overturn “don’t ask, don’t tell.” Hesitantly, Colucci thinks Kennedy likely again to uphold a policy defended on grounds of military necessity. But he also believes Kennedy “will ask the military to make the argument: what is the military necessity?”
For that very reason, my own prediction is the opposite. The Pentagon task force’s report on “don’t ask, don’t tell” undermines any justifications offered for the policy, especially if the law is subject to heightened scrutiny in a post-Lawrence world. The court cases challenging “don’t ask, don’t tell” may not reach the Supreme Court soon. But when they do, the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.
Wednesday, December 1, 2010
On the Death Penalty, Justice Stevens Regrets
David Garland could hardly have wished for better luck than to have his new book on capital punishment favorably written up in the New York Review of Books by no less than a retired Supreme Court justice, John Paul Stevens. And for Stevens, the unsolicited assignment from the magazine’s editors gave him the chance to elaborate on his reasoning in concluding two years ago that the death penalty as it operates in the United States today serves no good purpose and should be abolished.
Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
From Stevens’ account — I have yet to read the book myself — Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice — in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”
Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
From Stevens’ account — I have yet to read the book myself — Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice — in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”
Monday, November 22, 2010
On Waterboarding, Bush Memoir Less Than Complete
In his final weeks in office, President George W. Bush was beset with what he describes in his memoir Decision Points as a “flood” of pardon requests submitted by people who “pulled me aside” to special plead for some friend, family member or former colleague. At first “frustrated” and then “disgusted,” Bush resolved “that I would not pardon anyone who went outside the formal [Justice Department] channels.”
It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.
It is a good story, but — as the New York Times reporter Charlie Savage notes — “incomplete.” In fact, as Savage wrote on the Times’ blog The Caucus, Bush granted a batch of 20 pardons on Dec. 23, 2008, including at least four who went outside the Justice Department channels.
As with the self-enhancing version of his pardons policy, so too with Bush’s description of one of the most momentous of his decision points: his personal authorization for CIA and military interrogators to use “waterboarding” on suspected terrorists. The four-page account (pp. 168-171) so oversimplifies the events before and after Bush’s directive as to be at the very least “incomplete” — and, for any lesson-drawing purposes, simply wrong.
Bush traces the origins of the CIA’s “enhanced interrogation techniques” to the capture in March 2002 of Abu Zubaydah, purportedly a close associate of al Qaeda leader Osama bin Laden, and his initial questioning by FBI agents. As Bush tells it, the FBI interrogation ran dry and the CIA proposed to take over in a secret location with additional techniques. “At my direction,” Bush writes, “Department of Justice and CIA lawyers conducted a careful legal review.” That review found all the techniques constitutional and lawful. Even so, Bush ruled out two that “went too far,” but approved the others, including waterboarding.
To Michael Scharf, a law professor at Case Western Reserve University in Cleveland who has studied and written extensively on the issue, the account hardly begins to tell the story. In Scharf’s account in a law review article and his forthcoming book, Shaping Foreign Policy in Times of Crisis, it was not Bush, but Vice President Dick Cheney and his lawyer, David Addington, who drove the legal review — determined to find the interrogation techniques lawful.
Cheney succeeded by the bureaucratic ploy of cutting out potential opponents. As Scharf explains, the interrogation program was classified “need to know” instead of merely “top secret.” The effect was to keep the plan from the top lawyers of each of the military services and, most significantly, the State Department’s legal adviser, the office most expert in interpreting the U.S.-signed treaties banning torture. The “careful” legal review that Bush describes was, in Scharf’s words, “completely one-sided.”
Unmentioned by Bush, the memos upholding the techniques — and twisting the previous view of waterboarding as torture — have been rescinded. Whatever its legal basis, Bush credits the waterboarding and other of the torture-like techniques used on Zubaydah with breaking his resistance. CIA interrogators supposedly gained pivotal information that led, eventually, to the capture of 9/11 mastermind Khalid Sheikh Mohammed in March 2003. And KSM provided information “vital to saving American lives” that “almost certainly would not have come to light without the CIA’s enhanced interrogation program.”
Nowhere does Bush mention the later downgrading of Zubaydah’s importance. In court filings, the government now disclaims any allegation that Zubaydah is a member of al Qaeda or played a role in the September 11 or other attacks on the United States. Nor does Bush acknowledge the sharp dispute about the supposedly invaluable intelligence gained from the enhanced interrogation techniques.
The most telling refutation comes from former FBI agent Ali Soufan, who helped interrogate KSM for three months (March-June 2002) before the CIA took over. In successive op-ed articles in the New York Times in April and September 2009 and comments elsewhere, Soufan labels the puffed-up accounts of the intelligence gained from the enhanced interrogation techniques as “false claims.” He says that KSM was providing “actionable intelligence” under traditional techniques and notes that KSM has boasted of providing false information to later interrogators. As for Zubaydah, Soufan similarly says no intelligence was gained that was not or could not have been gained from regular interrogations.
As with waterboarding, Bush is incomplete in describing some of the administration’s other post-9/11 legal policies. He describes his early decision to treat the Guantanamo detainees as outside the protections of the Geneva conventions (pp. 166-167) with no mention of the State Department’s position that in fact they were covered by the U.S.-signed international accords. He describes the creation of the “military commissions” to try Guantanamo detainees (p. 167) with no mention of the departures from the procedures for regular military tribunals. And after acknowledging the Supreme Court’s decision in Hamdan v. Rumsfeld (2006) striking down the military commissions, Bush claims that Congress solved the problem with legislation passed later that year (pp. 177-179). But he does not mention of the court’s later ruling, Boumediene v. Bush (2008), that found unconstitutional the critical provision in the law to limit judicial review of the reconstituted military commissions’ decisions.
Bush’s acknowledgment of having authorized waterboarding has prompted calls from human rights groups, including Amnesty International and the American Civil Liberties Union, to prosecute him for violating U.S. law against torture. An administration that has already given a pass to the lawyers who wrote the torture memos is hardly likely to take on a former chief executive. But the American people still deserve the complete torture story — and they have gotten nothing close to that from Bush’s first-person account.
Sunday, November 14, 2010
Mixed Reviews for First Post-Citizens United Election
The United States has just completed its first, post-Citizens United national election. Total cost: $4 billion, including nearly $300 million from independent groups that benefited from the Supreme Court’s decision freeing corporations and unions to spend unlimited sums in political campaigns. The reviews are decidedly mixed.
“We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
“All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”
“We’ve just seen our first $4 billion election, and it wasn’t pretty,” says Arn Pearson, vice president for programs at Common Cause, the granddaddy of campaign finance reform groups. “I don’t think anyone believes voters were better served as a result.”
To the contrary, says Bradley Smith, chairman and co-founder of the deregulatory Center for Competitive Politics. “By most standards, this was one of the most issue-oriented campaigns ever,” Smith says. More races were competitive, he says, challengers were well-funded, and voter turnout was up.
As for independent expenditures, they amounted to less than 10 percent of the total, Smith points out. “Corporate and union spending did not drown out individual spending,” he says. There were “more voices, more people participating,” Smith says. “That’s a good thing.”
The clashing views show that no one has changed positions since the Roberts Court Jan. 21 decision in Citizens United v. Federal Election Commission to wipe out the century-long ban on direct corporate spending in federal elections. Like the Roberts Court’s conservative majority, Smith and other critics of campaign finance regulation view the ruling as a victory for the First Amendment. Like the liberal dissenters, Common Cause and other campaign finance reform groups say the decision will make elected officials all the more beholden to moneyed special interests, especially corporations.
The critics are especially concerned about what they calculate as about $138 million spent by independent groups with no obligation to disclose their donors. “It’s difficult to quantify the impact of that anonymity,” says Shelia Krumholz, executive director of the Center for Responsive Politics (CRP). “Anonymity has to be public enemy number one.”
One group stands out for the critics: Crossroads Grassroots Policy Strategies (Crossroads GPS), created by Bush White House political guru Karl Rove as an affiliate of American Crossroads, the so-called “Super PAC” that he helped found with former Republican National Committee chairman Ed Gillespie. As a political action committee, American Crossroads is subject to disclosure requirements, but Crossroads GPS is outside campaign finance laws because electioneering is (purportedly) not its “primary activity.”
Together, the two groups spent nearly $39 million in the congressional races, but Crossroads GPS is not disclosing the donors for its $17 million share of that amount. It spent big on some key races, according to CRP, either to oppose Democratic candidates or support GOP contenders. Some spending paid off: $4.4 million in the Illinois race won by Republican Mark Kirk and $1.1 million in the Kentucky contest won by Republican Rand Paul. But some did not. The group invested $3.5 million in trying to defeat Democratic senator Patty Murray in Washington and more than $2.25 million in seeking to oust Senate Majority Leader Harry Reid in Nevada.
Smith, who had two years to put his deregulatory views into practice as member and chairman of the Federal Election Commission (FEC), scoffs at the disclosure issue. Critics talk about “the shadowy group founded by Karl Rove and Ed Gillespie,” Smith says. “How shadowy is that?”
“All of the ads have to identify who paid for them,” Smith notes, “but they don’t have to identify who gave the money to the organization that paid for them.” Some people want more disclosure, Smith acknowledges, “I don’t see that there would be a lot more gained if there were,” he says.
The election included some good news for critics of out-of-control campaign spending. The two most prominent profligate spenders went down to defeat in campaigns financed from their own pockets: Republican Meg Whitman, who spent $140 million running for governor of California, and GOP hopeful Linda McMahon, who spent $50 million in Connecticut’s Senate race.
Independent spending, on the other hand, does appear to have been effective in helping tilt some pivotal contests, according to a report by Public Citizen, the Nader-founded advocacy group. It found that the winning candidate enjoyed a nearly 3-to-1 advantage overall in unregulated third-party spending in 58 out of 74 party-shifting congressional races. Prime examples were the Illinois and Pennsylvania Senate races, contests won by Kirk and Pennsylvania’s Pat Toomey after outside groups poured millions into opposing Democratic nominees ($8 million in Illinois, $5.3 million in Pennsylvania).
Disclosure laws are the next target of campaign finance deregulators. In Citizens United, the Supreme Court upheld disclosure requirements, with only Justice Clarence Thomas dissenting. Even if broad constitutional challenges are rejected, the Crossroads GPS example illustrates the gaps — critics call them loopholes — in existing law.
At a post-election forum, Common Cause reiterated its stance for broader disclosure and for some form of public campaign financing. And it calls for a constitutional amendment if necessary to overturn Citizens United. The decision, Pearson said, “cannot stand.”
To Smith, now a law professor at Capital University Law School in Columbus, Ohio, the complaints are nothing more than “whining.” The elections, he says, “were not a catastrophe.” As for Citizens United, “more and more people will say we can live with this.”
Monday, November 8, 2010
The Campaign That Iowa's Justices Might Have Won
Jeffrey Neary drew the ire of social conservatives in 2003 when, without realizing, the Sioux City, Iowa, judge signed a divorce decree for a lesbian couple who had moved to the state after having formed a civil union in Vermont. Iowa did not recognize same-sex marriages at the time, so Neary revised the court document to show that he had dissolved the couple’s civil union.
Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.
Anti-gay activists saw Neary’s action as judicial activism and mounted a campaign to defeat him in the next election in 2004. Neary fought back, as reporter Greg Schulte of the Des Moines Register recalled in a story this year. Neary borrowed money and recruited two attorneys, one Republican and one Democrat, to run his campaign in the retention election, where voters cast “yes” or “no” ballots on keeping a judge in office.
Neary survived, with 59 percent of the vote. But, as he told Schulte during what proved to be a successful effort this year to defeat three of the state’s supreme court justices, the experience had an effect. For two years afterward, Neary said, he found himself looking over his shoulder when making decisions. “You did ask yourself,” the judge recalled. “Who’s going to care about this decision?”
With much more at stake this year, Chief Justice Marsha Ternus and two of her colleagues, David Baker and Michael Streit, all but sat on the sidelines as anti-gay groups targeted them for defeat because of the Iowa court’s 2009 decision recognizing same-sex marriages in the state. The three justices organized no campaign for themselves and turned aside requests for interviews. Only in the final weeks did Ternus “go public” in semi-earnest with civic club-type appearances touting the importance of judicial independence. But the speeches were no match for the no-holds-barred campaign against the justices.
Operating under the name Iowa for Freedom, the campaign against the justices spent upwards of $800,000, about $700,000 of the amount from out of state, according to Adam Skaggs, a lawyer with the Brennan Center for Social Justice at New York University Law School who followed the campaign. Financing came from such anti-gay national groups as the American Family Association, Family Research Council and National Organization for Marriage.
Without direct help from the justices, an in-state group that called itself Fair Courts for US raised about $400,000 to counter the campaign, according to Skaggs. But it bought no television or newspaper advertisements even as the anti-gay group was running TV and newspaper ads and organizing a highly visible bus tour in Iowa’s rural areas.
The justices stuck to the no-campaign stance even as polls in September and October showed that one or more of them were in trouble. The Register’s poll in October showed that 44 percent of respondents were planning to vote against at least one of the justices. Only 37 percent said they were in favor of retaining all three. By contrast, polls a year earlier had shown Iowans were essentially split down the middle on the gay marriage issue itself.
In the final days before the Nov. 2 voting, thousands of Iowans received robocalls at their homes urging a no vote on all three. Defeating the justices, the recorded messages said, would “send a clear message that we are taking back control of our government from political activist judges.”
The campaign worked. All three justices were defeated on Nov. 2 by roughly 55-45 margins. Leaders of the campaign claimed a victory against a court that had overstepped its bounds. The state’s gay rights leaders acknowledged the setback while noting that the court’s pro-gay marriage ruling still stands.
Iowa is one of 16 states that use judicial retention elections, the so-called Missouri plan named for the first state to adopt the system. No appellate justices had been defeated since Iowa adopted the system in 1962, but over the years Iowans had ousted four trial-level judges, all because of character or temperament issues.
As Neary’s experience in 2004 showed, a judge need not tie his hands behind his back when an ouster effort forms. Indeed, as Skaggs notes, even as the Iowa justices were going down to defeat, the chief justice in neighboring Illinois was surviving a comparable campaign because of his vote to strike down a law limiting damages in medical malpractice cases.
To counter the business-backed campaign against him, Chief Justice Thomas Kilbride raised $2.5 million to defend his seat. He won, with more than 60 percent of the vote. “The lesson for judges in the country,” Skaggs says, “is if we want to keep our jobs, we’re going to have to campaign like any other politicians, particularly in retention elections.”
That lesson for judges will be an unwelcome one for judicial independence advocates such as retired Supreme Court Justice Sandra Day O’Connor, who has been warning of the dangers of judicial elections. But only nine states dispense with judicial elections altogether. For better or worse, judges in the rest of the country serve in an electoral system — partisan or nonpartisan races or retention elections.
Could the Iowa justices have won? “Probably,” says Skaggs. “They didn’t fall short by that much of a margin.” But they chose the high road in the campaign — and paid for their high-mindedness with their jobs. The cost to judicial independence could be even greater if judges in future campaigns take the same approach.
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