Begging The Question

Last week I discussed Tom Goldstein’s posts about a future Democratic president’s Supreme Court short list at SCOTUSblog. I mildly criticized Goldstein for suggesting that liberals don’t care as much about the Court as conservatives do. Now Goldstein has posted about a future Republican president’s short list. So I suppose I ought to offer a response to this one as well, to carry the flag. (Prof. Kerr at the VC has the first response to Goldstein I saw; it’s worth reading too.)

Goldstein thinks there will be fewer vacancies under a Republican president, at least during the first term, and of course barring any unforeseen illnesses or deaths. But he predicts Justice Souter will retire in summer 2009 either way, and that another vacancy would come late in the next presidential term or early in the term of a president elected (or re-elected) in 2012. For the record, I raised the possibility a while ago that Justice Souter might even quit this summer, so I agree with Goldstein’s bet that he will be the next to go.

Goldstein ultimately predicts Judge Consuelo Callahan for the first vacancy, and Solicitor General Paul Clement for the second. I think Callahan would get some of the Harriet Miers treatment, and the benefits to a GOP president for nominating a Hispanic woman to the Court wouldn’t be worth the conservative backlash. So I think Judge Janice Rogers Brown is a likelier nominee, but only if the vacancy does come in 2009 (when she will be 60 years old), with Judge Diane Sykes being my very close second choice, with Callahan or one of Prof. Kerr’s suggestions, Judge Paul Cassell, in a tie for third. For a second vacancy, my money would be on Sykes or Clement or Judge William Pryor.

I find handicapping this horse race to be harder than the Democratic one, for a couple-three reasons. First, as Prof. Balkin discussed in his response to Goldstein’s take on future Democratic nominees, President Bush will have had eight years to stock the lower courts and the Justice Department with potential nominees in the “right” age range who have built up credentials and connections. Add to that, if a Republican is elected in 2008, whatever appointments that president will be able to make before a vacancy arises. So there are more candidates who are at least minimally qualified.

Second, I haven’t studied it too very closely, but I certainly get the sense that the potential GOP presidents have a more varied approach to, and emphasis on, judicial nominations than the Democratic candidates do. Rudolph Giuliani has his judge committee helping him, but a lot of GOP voters retain doubts about how committed he is to appointing “movement” conservatives to the bench. A candidate who wants to back away from President Bush’s handling of the Iraq war might not make it his first priority to choose judges based on their feelings about separation of powers, to take one example. Some candidates are obviously going to make abortion more of a litmus test. Conversely, my sense is that any Democratic president among the likely nominees would feel intense pressure (and probably genuine desire) to appoint a woman (and/or minority) supportive of abortion rights. That narrows the pool of potential Democratic picks somewhat, in a way that doesn’t apply to a Republican president who, as Prof. Kerr suggests, won’t feel great pressure to appoint a woman.

Finally, so much of this is going to depend on what happens in the 2008 Senate elections and the willingness of a Republican president to spend political capital on judges. If the Democrats increase their margin in the Senate, I think a Republican president would almost have to “water down” the nominee a bit, and we’ll end up with a Justice Kennedy instead of a Justice Bork. If a vacancy comes six months into a new administration, with the president facing enormous pressure to do something about Iraq (and maybe Iran), how long will he be willing or able to spend talking about judges? If the Democrats have something in the neighborhood of 55 votes, they could reject any nominee the president sends, and end the honeymoon in short order. I won’t underestimate the appeal of getting half a loaf, calling it a victory for bipartisanship, and presenting the image of a president who gets things done.

Tom Goldstein at SCOTUSblog had interesting posts here and here about potential Democratic Supreme Court nominees. Goldstein collects some responses at that second link. He noted that most of the responses were from conservative bloggers, and speculated that “conservatives recognize the importance of judicial nominations much more than do liberals.” Prof. Balkin responds here with pretty much what I would have said, although he says it a lot better.

I don’t think it’s that liberals don’t care about judicial nominations, but their focus and priorities are different than conservatives’ right now. Liberals still have to pay attention to President Bush’s (lower court) nominations and can’t afford to look ahead just yet. It’s a luxury to be able to think about a Democratic president nominating Supreme Court justices. I think another reason liberals didn’t have a lot to say is that Goldstein’s list looks pretty good. One could quibble here and there with Goldstein’s final predictions, but it’s hard to have major complaints about the list. Goldstein promises a post soon discussing potential Republican nominees; I expect a lot more liberal commentary to that post.

Goldstein’s (revised) ultimate prediction is that the first three nominees in a Democratic presidency would be Judge Sonia Sotomayor, Dean Elana Kagan, and attorney Teresa Roseborough (on the assumption that she would get a circuit court judgeship early on in a Democratic administration). Of note, all three are women. I don’t have any great problem with this list, as such, but I have my doubts it will actually work out this way. I think that’s especially true if either of two things happen, both of which look fairly-to-somewhat likely as of now.

The first is if Republicans adopt the tactic Democrats have used during the Bush administration of stonewalling — to the point of filibustering — qualified but ideologically objectionable candidates for the lower court, with the ultimate goal of preventing those candidates from getting to the Supreme Court. If the Republicans do to Roseborough or Kagan (if the next President nominates her for a circuit court first) what the Democrats did to Miguel Estrada, that would make it more difficult to get her on the Supreme Court. There’s no reason to think they wouldn’t do this, right?

Second, if Hillary Clinton is the next president, I think there will be a subtle political pressure not to appoint three consecutive women to the high court. Even though several women are among the list of undoubtedly unqualified candidates in the right age range (especially Judge Diane Wood), I think a President Hillary Clinton would want to avoid the perception that her litmus test is a gender test. I think the first nominee will almost certainly be a woman, for all the reasons Goldstein posits, and even the second one might be. But I think three female nominees in a row from a female president would just raise a bunch of distracting issues.

I should make clear that I don’t have a problem with as many women on the court as someone wants to put there. But the idea of having to listen to blowhard anti-feminists whining about a “no men allowed” policy is so tiring — years in advance — that I wouldn’t mind avoiding it. The way to avoid it, of course, is to nominate a man, and there are several qualified candidates, or to nominate a woman who is so obviously qualified that the notion of a gender quota never gets any traction. (This is the John Roberts precedent — there were some minor complaints about replacing Justice O’Connor with a male, but no one could reasonably argue he wasn’t qualified. The male-female issue gained a little more traction with Samuel Alito’s nomination because it was the second chance to nominate a woman to replace O’Connor.) And if the GOP opposes a nominee like Roseborough to the point that she can’t get on the circuit court, that would leave her without that credential if she were nominated for the Supreme Court.

My point is that the odds of a Democratic president — especially if that president is Hillary Clinton — nominating the three women Goldstein suggests, in that order, is small. But the odds are good that the next president will have several chances, and I’m confident that the Democrats will take those opportunities very seriously. (What will be very fascinating to see is if the lefty blogosphere erupts in a Bizarro Harriet Miers scenario, if it feels a candidate isn’t liberal enough.) But, as Prof. Balkin suggests, the primary focus of a Democratic administration, from Day One, should be stocking the federal bench with potential future nominees. And even if those future judges never get elevated, I think Democrats have seen enough in the last six years to understand the value of filling the lower courts with the type of judges they want. The Democrats need to think systemically, and long-term, and I have no doubt they will.

Anyway, all this is so wildly speculative now that it borders on the absurd to imagine how the judicial nomination landscape will look in three or four years. But it sure is fun for law nerds like me.

There is a lot to this story, so I will try to stick to the relevant parts and not get too bogged down in the details.

Our daughter loves animals. Breaks into laughter every time she sees a cat or dog. Problem is our cats would have nothing to do with her. For a while her mom and I knew what we wanted to get her for her 1st birthday. A puppy, of course.

We’ve know for a while the kind of dogs we wanted. I grew up with German Shepherds, and still love them. The Mrs. on the other hand wanted a Saint Bernard. Who knew I would be lucky enough to find a wife that wanted a bigger dog than I did?

Mrs. Haff found an ad in our local paper for 10 week old St Bernard puppies. AKC certified, in our price range. The breeder had one male and 4 females left. In case this wasn’t painfully obvious to long time readers, we were getting male dogs. I need all the testosterone help I can get around here. The male was discounted some since he didn’t have perfect markings. We didn’t care, and made arraignments to pick him up on Saturday, when we had a babysitter to watch the kid. The seller said he could meet us between 8 -9 am, or 4:30-6 pm, because he had a job at a local farm. Given that he lived about 1.5 hours away, we initially set up an evening meeting time. After thinking about it, we decided it would be better to pick the dog up early so that he would have all day to adjust to his new home. Not to mention that if we brought the dog home at night, there would be no chance of getting the kid to go to sleep. So Sat. morning we brew some coffee and head south of town.

Immediately upon reaching the house we had a bad feeling. My initial thought was that this was every house I have ever seen on COPS. Dogs chained up in the front yard, a mountain of Dr. Pepper cans next to the front door, junk everywhere. This was not a place where AKC champion bloodline dogs lived. Regardless, we had our hearts set on a dog, and went ahead inside the house. More COPS material. The house was filthy, reeked of cigarettes, and had trash everywhere. There was one large male dog, the father, who was incredibly friendly, and several puppies running around. Our puppy was laying down between the sofa and the coffee table. A sofa, I will add, that was positioned in front of the largest TV screen I have ever seen outside of a sports bar. This thing literally took up the better part of one wall of the house.

We check out the dog, and he lifts his head but doesn’t get up. The other dogs are all over us checking out the new people. The guy brings over the AKC papers, showing us the documentation on the 4 generations of bloodlines, plus the registration form we need to send in once we have him named. The Mrs. and I look at each other, she writes the check, and gets ready to take the dog. At that point the guy mentions that he’s had 15 puppies, and that he didn’t have enough money to get them all vaccinated. And part of the reason he thinks our dog is sluggish is that he was outside during the storms that had rolled through the last few days. He said he probably just has a cold. He recommended we stop by his vet on the way out of town to have him checked out. Said the vaccinations would be cheaper there then back in Dallas, and they could give him some quick antibiotics if he needed it. Also said to let him know if the dog had a fever, since he had the 4 other puppies that were out back and wanted to know if they might be sick. The dog still wasn’t up, so we carried him to the car and headed to the vet.

Got to the clinic and the vet checked him over. Took his temperature, checked his ears, looked in his mouth. Vet said he looks a little skinny, but other than that looks like you’ve got a healthy dog. They gave him a vaccination shot and some worm medicine. As we were leaving the vet, the breeder showed up. He asked what the vet said. We told him the dog didn’t have a fever. He was happy to hear that, and went on inside. and we were on our way home. About 20 min down the road, right as we were pulling in to grab some lunch, the dog starts to throw up. What comes up is exactly the color of the worm medicine he was just given. We call the vet. They say to come back, and they will give us another dose to give him later. We go back to pick it up and head home.

We get to the house, let the dog out in the back yard. He walks around just long enough to go to the bathroom, and then lays down on a mat on the porch. The Mrs. had tried to shampoo him, since he also had some fleas and she didn’t want them getting on the cats. The dog started to shiver, and it was about to rain, so we brought him inside. We had a blanket for him to lay on. This whole time he had shown no interest in treats, and only had a little water. Once on the blanket he started to throw up the water. The Mrs., who had had a dog die of the illness when she was younger, said I think this dog has Parvo. I’d never heard of it, but I knew something sure the hell wasn’t right. She called our vet here in Dallas. After describing the dog’s behavior and the conditions of the house where we picked him up, they said to bring him in immediately. So we packed him back up in the car and headed to the vet. We went to an exam room, the Dr. did a quick exam and took some blood, and said they would have the results back in about 20 min.

So we waited, which is always the hardest part. The Dr. comes back. The dog has Parvo, a bad case of hookworms, and an ear infection. They think it was caught in time, and they wanted to get him admitted and hooked up to IV fluids and antibiotics immediately. We were given an estimate for the bill assuming a 2 day stay and it was around $650. We tell them to do whatever they need to do to get the dog better. We go home, put the kid to bed, and have stiff drink to calm our nerves.

Sunday we go down to visit the dog. He is in isolation due to the fact he is very contagious. We talk to the vet about his condition. His blood work is good, and we are told that while the 2 day estimate was wildly optimistic, they expect him to make it. We spend some time there with him, and then head home.

Monday morning the Mrs. calls for an update, and we get some bad news. He had a rough night of vomiting and diarrhea, plus he has a fever of 105. Plus he had thrown up the worm medicine they tried to give him. The doctor recommends some stronger antibiotics, which we immediately approve. Mrs. and I spend the morning chatting on what to do if he does not improve soon. Mrs. went to visit the dog over her lunch break. She reported that he laid down and didn’t open his eyes the entire time she was there. That evening I call the vet to get an update. The Mrs. didn’t want to be the receiver of anymore bad news that day. I called expecting the worst. Instead the Dr says, “Guess who was standing up looking at the door when I went to check on him.” Apparently the stronger antibiotics were having some effect. He was standing up for the first time in 2 days and his fever had dropped by two degrees. The power of a single phone call to swing you mood from despair to hope is truly remarkable.

The next day the morning checkup is still cautious but positive. His fever is still dropping, his blood work still looks good, and best of all he tried to squirm away from the vet when she tried to take his temperature. Wed. and Thurs. he continues to improve. Thurs we’re told they are going to try giving him some solid food the next day, and it he can keep that down for 24 hours, we can take him home. Thursday evening Mrs. Haff gets an email from the breeder. He says he followed us to his vet to make sure we were going to take good care of his dog. That he has incurred a great deal of expense at his bank due to our canceled check, that he is going to sue us for $5,000. He says as soon as he gets the check back from the bank with our address, he plans on coming to get his dog. With a great many exclamation points, he suggests we call our lawyer.

As emotionally drained as we were from a week of watching the dogs life teeter back and forth, we weren’t in a great state of mind to deal with threats. A bottle of wine helped that situation immensely. We decided to take the breeder’s advice. Except we didn’t contact a lawyer. We contacted nine (including Milbarge). The universal response from all of them was pretty much laughter. One here in Dallas (who offered to represent us for free) said you want him to sue you, because our counter suit will be for twice that amount and you will get your vet bill paid for. The lawyer also checks to see if the breeder has filed a suit yet. He hasn’t, but interestingly has two domestic judgements pending against him. We talk to our vet clinic. Everyone there is adamant that this jackass is not getting the dog, they fax over all documentation, and one of the vets insists that we call her if he sues and we need witnesses. We like out vet.

Also Mrs. Haff, animal lover and rescuer extraordinaries, began talking with local dog rescue groups about going in to the get the four other puppies he was advertising. She talks with many people, some as far off as Arizona, some as close as dog foster ranch 20 min from our house. One of the groups plans to do an investigation, but on the scheduled weekend, the investigator is ill and can’t go. Fearing for the puppies, Mrs. Haff contacts the local sheriff about the situation. They send a deputy out to look. When we get the report back, they weren’t able to do anything. Per state law, as long as he provides adequate food, shelter, and water, he’s not breaking any laws. The worst news is that the deputy reported that there were no 4 female puppies on the premises. Everyone assumes they didn’t make it. We receive another email from the breeder. He says the deputy has just left his house, he is going to sue us, and is adding slander to the charges. We don’t respond, but our reaction was “Slander? Is he just picking out words he’s heard on Law & Order?”

Meanwhile, our puppy is home. It is a draining weekend, since both he and the baby need constant supervision. The Mrs. and I take turns working from home the first week. Partially so the dog has someone at home with him and partially to keep an eye on the house in case the jackass breeder is dumb enough to try to actually take the dog back. The puppy puts on weight and continues to gain energy. He still cannot be around other dogs, since he is contagious. We make sure all neighbors and family with dogs have their animals’ vaccines up to date, and that they wash their hands throughly after coming over to the house.

After another week or so had gone by, we hear from the rescue lady in AZ. She told the story to a friend, and that friend had decided to get the other four puppies. She called, and the breeder was very anxious to get rid of them. He must have had a hunch that someone was going to come check on them. In her conversations with him, he
1) Lies about the dogs’ age, since they are so underweight
2) Claims they are up to date on shots, including Parvo
3) Says the dogs are trained not to jump over his fence because he beats them with a newspaper
4) Says a neighbor shot one of his puppies, claiming it had killed a cow. When the buyer says that doesn’t make sense, the breeder responds, “Well, I think he was just getting me back. His two Great Danes came on my property a while back and I shot and buried them.”

The lady agrees to buy the four puppies. She pays using PayPal (knowing she can stop the payment), and sends him 4 brand new crates to ship the dogs in. Naturally, the breeder keeps the new crates and ships the puppies in crates so old, the airline baggage have to patch them to keep them from falling apart. He also found a way to save on air fare, by not sending them direct, but routing them through Atlanta with a layover. I don’t need to link to a map to show you that Atlanta is not on the the way from Dallas to Phoenix. The dogs were on the plane for 20 hours with no food or water. Of course they go straight to the vet, and of course they all have Parvo as well. The weakest one weighs 15 lbs (ours from the same litter was bone thin at 25 lbs almost a month earlier) and has undergone two blood transfusions. The other three were not in as bad a shape, and seemed to be making a recovery last we heard.

After the stopped payment, charming breeder man threatened to sue her for $20,000. She called us and we put her in contact with our lawyer here in Dallas. So far the breeder has been all talk, and we have not heard from him since that last email. Both Mrs. Haff and the other lady have reported the breeder’s vet to the state, and an investigation is ongoing. A few media outlets have asked to use our story for publicity to get the breeder shut down.

The puppy, named Magnus, has made a full recovery. He has doubled in size since we got him, and weighed in at 55 lbs at his last checkup. He and the kid get along famously. He knocks her to the floor, she sits on his head and sticks her fingers up his nose. It’s all great fun. Magnus also gets lots of compliments on his trips and walks. People are not used to seeing a St Bernard around town. As Mrs. Haff says, it’s fun having the biggest dog at the dog park.

Here’s an interesting story. An Australian boxer named Omar Al-Shaick has been banned from the sport for two years for refusing to provide a urine sample for drug testing. He claims that doing so would violate his Muslim beliefs because it would require him to expose himself during the test. (The examiner has to actually watch the urination to ensure that no one pulls a switcheroo.)

The Australian anti-doping organization which imposed the ban said that the testing method applied across the board, to athletes in many sports in many countries, including many Muslim athletes, and this had never been an issue.

Prof. Volokh has a nice, brief explanation here at NRO of the American law governing religious exemptions from generally applicable laws. To state the rule in one oversimplified sentence, sincerely held religious beliefs justify an exemption from generally applicable laws unless granting the exemption would create an undue hardship (say, on employers) or a compelling government interest outweighs the exemption.

Of course, the U.S. Constitution doesn’t apply to international anti-doping agencies. But one could easily imagine this sort of situation arising here instead of Australia. (And let’s assume that state action is involved.) How would such a claim be resolved under our law?

In Al-Shaick’s case, the Court of Arbitration for Sport said, “The athlete did not genuinely believe that it was contrary to his religious beliefs for him to give a urine sample in circumstances where strangers would have to observe that sample leaving his body.” If that were the case here — if the religious belief wasn’t “sincerely held” and was asserted as a ruse — the request for an exemption would fail.

But what’s confusing here is that the way the news story reads, the CAS may have been saying that Al-Shaick didn’t “genuinely believe” his religion forbids him to expose himself because other Muslim athletes have done so many times without complaint. However, as Prof. Volokh’s article makes clear, universality isn’t required under American law: “A claimant need not show that her view is common among Muslims, only that it’s sincerely held by this one particular Muslim.”

So, assuming the shy athlete’s belief is sincere (and not, as kind of appears to be the case here, a clever attempt to avoid a surprise doping test), we would have to move on to the second part of the analysis. I think most American courts would hold that the need for transparency and safety in sports is compelling enough to override a sincerely held claim of religious modesty. Plus, it could well wreak havoc on the sport if boxers (or other athletes) could avoid doping tests this way — it would defeat the purpose of universal testing.

After all, if one is to hew tightly to one’s religious or cultural scruples, there are simply going to be some activities one can’t participate in. For example, if boxer Al-Shaick got knocked out, he would expose the soles of his shoes. In a multi-cultural society, there are some offenses we just have to be willing to bear.

In sum, I don’t think Al-Shaick’s claim would be any more successful if brought by an American athlete in a U.S. court. But I could imagine it might have a better chance in a closer case. For example, if a devout student made this religious objection to a random, suspicionless drug test required to join the chess club. Even that might not win, but I’m glad the U.S. Constitution goes farther in protecting religious freedom than the rules applied by the Court of Arbitration for Sport.