Is the 9th Circuit More Liberal Than Other Circuits?

That's the title of my APSA paper for this year. You can find a copy on SSRN.

And here's the abstract:

Is the U.S. Court of Appeals for the Ninth Circuit more liberal than other circuits? This paper looks at three possible definitions of judicial liberalism and tests whether the Ninth Circuit is more liberal, using data from the U.S. Courts of Appeals database and Giles et al. Common Space scores. First, the paper compares overall the proportions of liberal decisions in different circuits and finds that the Ninth Circuit is more liberal than most circuits, but with a fairly low probability. Second, the paper looks at the probabilities that a randomly chosen panel in the Ninth Circuit has a more liberal median than a randomly chosen panel in another circuit. Again, while the Ninth Circuit is likely to be more liberal than most other circuits, the probabilities are fairly low. Third, the paper presents estimation results from a hierarchical Bayesian model that compares the influence of judicial ideology on judicial outcomes in different circuits; it finds that this influence is lowest in the Ninth Circuit. As a result, the paper is not able to explain why the Ninth Circuit is singled out as a particularly ideological circuit.

I presented the paper as a poster this time, which I generally like - more direct conversation with attendees, no time pressure for the presentation. I also prefer going to poster presentations than panels. One doesn't have to sit through bad presentation - if a poster is badly done, you can move on - and there are more opportunities for direct conversations with presenters. My poster was located in Siberia - a board in the furthest corner of the hall, surrounded by empty boards reserved for posters that never showed up. Never mind - four people stopped by, and that's about the average size of the audience in the panels that I found interesting. Anyway, if you want to read the poster summary of the paper, check it out (careful: DIN A0 format!).

More on free reference managers

Months ago I wrote about Zotero and CiteUlike. The "market" is getting a bit more crowded, and over the last year or so, I've come to work with JabRef. I like it. It works under Windows, Linux, and Mac OS, it seems to be stable (no problems over here, at least), and runs on Java. The references are saved in BibTeX format, which means export is no problem and the databases are simply textfiles - small and portable. I use mainly LaTeX for my writing projects, so a BibTeX manager is all I need. However, there is a Word Macro Package that allows integration of BibTeX into MS Word (see BibTex4Word on Mike Brookes's website; see also this discussion). I suppose it's something for people who are willing to make things work (er, play with their computers). I haven't tried Zotero in a while, so I don't know if it's easier to use.

Gitmo trials and indefinite detention

One of the puzzling things about Salim Hamdan's military commission trial for conspiracy and supporting Al Qaeda was that even though he received a light sentence - and was acquitted of several of the charges - he can still be detained indefinitely. In principle, this means that even though he has to serve only five more months of his sentence, he can be incarcerated until the end of his life. How come? Michael Dorf (in this FindLaw column) gives a quick and clear explanation that clarifies the main legal distinction and raises the right questions. Highly recommended!

In a nutshell, Hamdan's trial before the military commission was for crimes the government claimed he had committed - supporting Al Qaeda etc. He was convicted of some of the crimes and received a sentence of 5-1/2 years. His overall detention at Guantanamo, however, has been justified with his status as unlawful enemy combatant, which was determined by a review board, not the military commission that tried him for crimes. Technically, then, there are two different reasons to detain him for different time periods, although these reasons are linked, since Hamdan's role as bin Laden's driver led to his capture as an enemy combatant.

Of course, the fact that this distinction has been drawn by the administration and its lawyers (and the fact that it is used to justify detention without judicial review) does not mean that it should be drawn. Dorf, for one, argues that the administration cannot indefinitely detain people like Hamdan whose sentence is not for life (or who have not been convicted in military court). Part of the debate is whether the Global War on Terror is a conventional war, and whether the "war" in GWOT is a metaphor (as in War on Poverty) or an actual international war (as in WWII). Dorf: "the analogy to conventional war is a poor fit for terrorism suspects. Those determinations justify [Hamdan's] initial detention, but in an era of a perpetual war on terror, due process should require something more for continued detention." If you want to read the other side, see Justice Roberts's dissent in Boumediene v. Bush.

Rejecting the view that the GWOT is a conventional war, Dorf suggests civil commitment as a model for detainees who are dangerous, with periodic review of their continuing danger. More can be found on Dorf's blog, which I find worth checking periodically.

Talking about the Bundesverfassungsgericht

The German Constitutional Court just overturned several German state laws banning smoking in bars. The problem wasn't that they violated a fundamental right to nicotine: According to the Court, the laws violated the professional freedom of people running small bars, as owners of large bars were permitted to designate separate smoker rooms - an option not available to small-bar owners, who argued that they would be driven out of business. The Court stated, however, that state laws prohibiting smoking in all bars would be constitutional. For now, one-room bars can declare themselves to be smoker bars, as long as they exclude patrons under 18 and don't serve food (the drinking age in Germany is 16, so this will exclude at least some drinkers - but then those limitations are never very strictly enforced). Two tidbits to the story that I find amusing: The small bar owners found some sympathy in the public debate because they include owners of so called corner bars - small bars on city corners that are a firm part of German mythology: The foundation of urban community life, the regular meeting place of friends and strangers, etc. Second, the bar owner who brought the suit runs the Pfauen (Peacock) bar in Tübingen - a place I frequented in my young and carefree days.

I'm *shocked*: Politics even in German constitutional court appointments

I meant to summarize this episode for some time now, because I think it's very interesting from an American perspective: Earlier this year, the German Bundesrat (the legislative chamber representing the German states) essentially rejected a nominee to the German Constitutional Court (the Bundesverfassungsgericht, abbreviated BVG; the candidate, Horst Dreier, withdrew once it became clear he would not be confirmed). This was not the first time a candidate for the const. court was rejected, but the remarkable thing was the public debate on the candidate's legal philosophy, which turned into a debate on public policy, the judicial appointment process, and to what extent the latter should be more public. One interesting element in the debate was the use of the US (federal) judicial appointment process as an example that should not be followed (Jutta Limbach, a former chief justice of the constitutional court, for example, criticized that in the US process nominees would have to commit themselves to particular decisions - a point that is not really justified: SCOTUS nominees actually use the argument that they may not discuss possible future cases to evade questions about their policy positions). Another interesting thing were the two policy issues that led to the rejection of Dreier's nomination: torture and stem-cell research. Sounds familiar, eh?



Since Germany is a code law country, judicial appointments generally follow a civil-service system and are less politicized than US appointments: Future judges have to get a law degree (something not required for all judicial positions in the US - particularly in lower state courts), complete two years of internships, and pass additional state exams after those internships; only the best examinees are then chosen by the Ministry of Justice (for the federal courts; at the state levels, they're usually chosen by the respective state ministries). The judicial career then proceeds like a civil service career, with promotions controlled by the ministries and more senior judges. (A good, quick summary of European judicial appointment processes can be found in Mary Volcansek's 2007 Fordham Urban Law Journal article [available here]. A more detailed discussion is available in Peter Russell and David O'Brien's 2001 collection, Judicial Independence in the Age of Democracy.)

Appointments to the German Federal Constitutional Court are different. The BVG is the highest court for constitutional questions (there are other highest courts for statutory and administrative law questions), and as a result it often deals with highly politicized questions; appointments to this court are political, which in Germany means party-based. Half of the justices are elected by the lower chamber of the German legislature (the Bundestag), and half are elected by the upper chamber, the Bundesrat. In the Bundestag, justices are elected by a committee, by a two-thirds majority. In the Bundesrat, justices are elected directly, also by two-thirds majority, after they have been nominated by a commission.

Practically, nominees are chosen through negotiations between the two largest parties, the Social Democrats (on the left) and the Christian Democrats (on the right); in this process, each party gets to nominate half the justices, but they still have to get approval from the other party. Dreier, a law professor from the University of Würzburg and a member of the Social Democratic Party, was chosen for a Social Democratic seat and hence was selected by a group of leading Social Democrats, which included the Minister of Justice, Brigitte Zypries, the head of the Social Democratic caucus in the lower chamber, and a Social Democratic member of the upper chamber of the legislature. There was some coordination with the Bavarian prime minister - a member of the Christian Social Union (European politics can be pretty complicated: The Bavarian version of the conservative party is called the Christian Social Union, but it caucuses with the Christian Democrats) - but this seem to have been, remarkably, by a text message, to which the Bavarian PM did not respond. Dreier was to be confirmed by the Bundesrat, the upper chamber. He would have become the vice president of the constitutional court, on track to become its president in 2010.

Shortly after Dreier's nomination became known, around January 12 (the nomination was leaked before it was announced, not exactly a good sign), opposition formed from two sides: The right criticized Dreier's position on stem-cell research. As a member of the National Ethics Council (a group of scientists, lawyers, philosophers, theologians, etc. formed to make recommendations on ethics questions in the life sciences), Dreier had argued that stem cells were not protected by Article I of the German Constitution, which declares that human dignity is inviolable. The left, on the other hand, criticized a footnote in a constitutional commentary Dreier had published, which discussed conditions under which torture could be justified. Again, the concept of human dignity was central to this debate, as Dreier argued that in situations in which a criminal violated the dignity of his victim, it would be justifiable to violate the dignity of the criminal in order to save the victim. (Basically the 24 scenario; in Germany, this was not primarily viewed in the terrorism context, however, but in the context of an actual kidnapping case, in which the police threatened to torture the presumed kidnapper, after he had been arrested, in order to make him reveal the whereabouts of the victim.)

In the end, the Christian Democrats refused to vote for Dreier, which meant he wouldn't get the needed 2/3 majority. By now, the Bundesrat has confirmed another appointee, Andreas Voßkuhle.

One interesting part of the public debate on Dreier's nomination was the question whether the German nomination process should be reformed. Several commentators criticized the partisanship and secrecy of the process. Some former constitutional court justices stated in interviews that they would not mind a process that was more transparent and allowed for a public debate on the candidates. In this context, the US Supreme Court confirmation process was viewed as a warning of what can happen if the process becomes too public. (Interestingly, the newspapers and magazines publishing commentaries and interviews seemed to assume everybody knew how the US process worked.)

Contempt charges?

The House of R. seems to be about to vote on resolutions to bring contempt of Congress charges against Joshua Bolten and Harriet Miers (you can find copies of the resolutions at MTP). Those with an old-fashioned long attention span will remember that back in July 2007 White House Chief of Staff Bolten and former Bush counsel Miers had refused to testify on the firing of federal prosecutors (and were held in contempt by the House Judiciary Committee). Typically, contempt charges have to be prosecuted by the Justice Department. One of the interesting developments in this case is, however, that the President has asserted executive privilege and ordered the Justice Department not to prosecute. As this very interesting CRS paper (pdf!) on contempt of Congress explains, it is not clear if the president is allowed to do this - the paper points to two federal district court decisions that state that the Attorney General has to bring charges once Congress has delivered contempt citations and a 1966 appeals court decision that could be used to argue that the AG has discretion over bringing (or not bringing) contempt charges. In any case, presidents in the past have ordered the AG not to prosecute contempt charges: Back in the 80s, the Attorney General refused to bring contempt charges against EPA Director Anne Gorsuch; but in that case, administration and Congress eventually made a negotiated agreement. The Supreme Court has not spoken on the issue.

As a backup for the likely case that the DoJ in fact refuses to prosecute, a second resolution authorizes the chair of the House Judiciary Committee to go to civil court and ask for a court order that would force Bolten and Miers to testify. This is interesting for political and legal reasons.  Politically, the House tries to make sure that the matter goes to court and thus stays on the agenda during an election year. Or it uses the civil charges as a bargaining chip to get the administration to cooperate in congressional hearings on the prosecutor firings, ideally during the runup to the election. Legally, the idea of bringing civil contempt charges is interesting because the House, in contrast to the Senate, does not have explicit statutory authorization to do so. The CRS paper mentioned before points to court rulings that suggest that the House can do this; on the other hand, John Dean suggests (in a nicely comprehensive and readable column) that conservative judges may decide that the contempt/privilege dispute constitutes a political question that should not be decided in the courts. We will see. It seems certain that there will be some court case if neither side budges - either about the president's power to keep (former) aides from testifying, or about Congress's power to force administration members to testify. Either question is important for people interested in the balance of power between legislative and executive branch.