"I don’t believe that the filibuster rule makes much sense for the Senate...In fact, you could argue that it is only the Senate Democrats in the last four years who have ever done it." Law Professor John Yoo Talks about the U.S. Supreme Court’s Use of Foreign Law, Possible Vacancies and Filibustering Nominees

Last week, University of California-Berkeley law professor John Yoo spoke with the Center for Individual Freedom’s Renee Giachino, who hosts the radio talk show “Your Turn — Meeting Nonsense with Common Sense” on WEBY 1330 AM in Northwest Florida, about the U.S. Supreme Court’s position on foreign court decisions, likely vacancies and President Bush’s current and impending judicial and executive nominations.

What follows are excerpts from the interview.

GIACHINO:  My next guest we have been fortunate enough to have on the program before and it is always a delight.  It is my extreme pleasure to welcome back Professor John Yoo, who is a law professor at the University of California-Berkeley and a visiting scholar at the American Enterprise Institute.  He is also a former law clerk to Justice Clarence Thomas and has been in the press lately because of his prior service as Deputy Assistant Attorney General in the Office of Legal Counsel for the Justice Department where he served from 2001 to 2003.

As I said, it is always a pleasure to welcome you back, John.  Are you there?

YOO:  Yes, thank you for having me on again.

GIACHINO:  Let’s talk about the Supreme Court first if we can.  I am sure you read last week that Justices Scalia and Breyer engaged in a debate at American University Washington College of Law about whether the Supreme Court should consult the opinions of foreign courts in making its own interpretations of the U.S. Constitution.

As a former law clerk to Justice Clarence Thomas, do you think that foreign court decisions play any role in the decisions of U.S. courts?

YOO:  Actually, I have written a short law review article about this subject so I have given it quite a bit of thought.

GIACHINO:  Where can we find that?

YOO:  Well, it’s not out yet.  It is going to come out in the University of Hawaii Law Review some day soon.  University of Hawaii had a symposium on it last year and I had to go in person to deliver it.

GIACHINO:  That was terrible! (laughing)

YOO:  (Laughing) You can find it on line at a database of papers called www.ssrn.com and it is there along with a bunch of other things that I have done.

This is something that the Supreme Court has been doing for a few years now but only recently has it gained any prominence.  There have been two cases probably most well-known for citing foreign law, the Lawrence case, which struck down Texas’ law prohibiting sodomy and the Court there held that it disenfranchised the rights of gays by subjecting them to disfavored treatment by the state for no reason.  And then it also appeared in the case of Virginia v. Atkins recently where the Court said it was unconstitutional for a state to carry out the death penalty on someone who is mentally retarded.

In both of those cases the majority of the Court looked to foreign law and said we ought to take notice and it is important that other countries also prohibited these kinds of laws.  I don’t think this is a very good idea for a number of reasons.

One, I think the most important reason is that the Supreme Court is suppose to be interpreting our Constitution, and our Constitution was written by people who in fact were trying to get away from European and other forms of government.  And they are trying to interpret that Constitution for Americans today.  People abroad may have their own views about gay rights or abortion or the death penalty and they certainly are entitled to have those policies in their own country, but I don’t see why their views should interpret how we view our own Constitution which is for our country and our political climate.

GIACHINO:  I agree.  I think one of the points that Justice Scalia made at the debate that is extremely valid is that when you start consulting foreign law, which laws do you use?  He raised this point with respect to abortion, noting that the United States is only one of three democratic countries with legalized abortion.  And he said “why is it that we don’t look to other nations when we talk about abortion but we look to other nations when we talk about sodomy.”  I think that is a very fair statement, don’t you John?

YOO:  It is a good point.  What he is really getting at is that the use of this kind of stuff is going to be selective.  That people — judges and Justices — are going to look out into the world and, like someone once said, it is like looking out into a crowd and picking out your friends.  So judges are going to go out and look at the world’s practices and just pick out the ones they happen to agree with.

So Justice Scalia’s point is that we have to be concerned about judges because they are going to try to read their personal policy views into the Constitution and this is just going to be another avenue for them to do it.  And so abortion and some of the other cases are good examples of how the Court, when it has done this, has only looked at a very few number of cases from a very few number of countries.  Almost all the decisions come from European Courts — there are not Asian Courts or African Courts or Latin American Courts cited in any of these opinions.  That’s because some Justices happen to agree with the preferences of the Europeans on these matters.

GIACHINO:  Well, let them move there.

On an entirely separate issue, although still one involving the U.S. Supreme Court, let’s talk about retirements and the composition of the Court.  Any predictions for the remainder of this term?

YOO:  I think many people are expecting that Chief Justice Rehnquist will retire some time in the next year because of the seriousness of his health problem.  So that will give President Bush one nomination.  If you look at the ages of the Justices — Justice Stevens is well over 80, so you would think he might retire some time during this presidential term, Justice O’Connor is also someone often discussed in Washington circles as someone who might retire, and so one could see President Bush having three appointments to the Supreme Court maybe by the end of his term.

In fact, I think it is correct that Justice Thomas is the only Justice on the Court now who is younger than 60.  So you could see there could be unexpected retirements, as well, just because of the advanced ages of the Justices.

Also, one other factoid, this Court has been together longer and there have been no retirements on this Court.  The last time there was a Court together this long with no retirements was in the early 19th Century under Chief Justice Marshall.  So just historically you would expect to see a number of retirements in the next few years.

GIACHINO:  You mentioned Justice Thomas.  Let’s talk a minute about him.  What I am getting to is the coveted, or perhaps not so coveted, position of Chief Justice.  If, in fact, the rumor proves true as you mentioned that Chief Justice Rehnquist will retire this term, it opens the door for President Bush to nominate a replacement.  What I did not really appreciate, and many of the listeners may not actually know, is the factoid that precedent is not for a sitting associate justice to be elevated to Chief Justice.  In fact, I think in the history of the Supreme Court this has happened less than five times.  Am I right about that?

YOO:  I think that is right.

GIACHINO:  That being said, John, you wrote last week an article that we republished on our website at www.cfif.org that Clarence Thomas is in the right seat as an Associate Justice and would serve the Court and our nation better from that seat rather than as Chief, which some are speculating.  As you mentioned, he is the youngest and perhaps could be elevated to Chief.  As a former Supreme Court clerk to Justice Thomas, would he be unhappy to hear that you are making the argument that he should stay where he is?

YOO:  I hope not.  I certainly hope he would not be.  My argument has two points.  The first is that the actual job of Chief Justice is not such a great improvement over being an Associate Justice.  Certainly it would have immense symbolic value — he would be the first African American Chief Justice in the Nation’s history and that has a lot of symbolic importance.  On the other hand, the only real power that the Chief Justice has is that when he is in the majority in an opinion he gets to assign who writes the opinion.  And that’s it.  Other than that his vote counts the same as the other Associate Justices.  He does not have any greater power in how the Court actually decides cases.

He has a lot of symbolic ceremonial functions, like sitting over impeachment trials, giving the inaugural oath and being the administrative head of the courts.  But in terms of real change from what Justice Thomas does now, it would only be assigning the opinions.

And the second thing is that I think it would change the way that Justice Thomas approached the job.  Chief Justices, even though they have only the extra job of assigning the writing of the opinions, they have to be cognizant of the courts as an institution, they are the head of the institution, they have to be conscious that the Court does not appear too fractured.  The Chief Justice is not out on either ends of the extreme.  They are trying to keep the law fairly settled.

That is exactly what Justice Thomas does not do now.  I think the reason a lot of people know his opinions is because he really tries to push aside excessive legalism and tries to push aside clever arguments and really tries to expose the real sides being made in a case and what the Court is really doing and whether it is imposing its policy choices on the Nation when it should be decided through elections.

One thing he is really conscious of is when he thinks experts or intellectuals or people who think they know better are trying to put some fancy new theory into practice — he is very suspicious of that.  And in his opinions he points out when he thinks that is happening.  I think he would not be able to do that as much if he were Chief Justice.  As an Associate Justice he is free to speak his mind clearly in a way that everyone can understand.  I think if he were Chief Justice he has to be more concerned about the Supreme Court as an institution than saying what he thinks is necessarily right or wrong.

GIACHINO:   I think you make a great point in the article about how it changed Rehnquist —- he use to be a rebel of sorts as Thomas is and able to speak his mind a little more freely than he does now that he is Chief Justice.

We have a caller on the line with a question for you.

CALLER:  You mentioned the sodomy case in Texas, but that is a citizen against their state.  It is unconstitutional for the federal court to even rule on such cases, yet they continue to do so.

YOO:  I think that is a good point.  What the Supreme Court held there is that the federal Constitution, which does grant to us as citizens certain rights against our states — so what the Supreme Court said is that some of those federal guarantees of rights are triggered by a law like the sodomy law.  I think people on both sides of the case would admit that the Court had never done that before in the context of the rights that affect gays.  In fact, the Court had a decision from 1986 called Bowers v. Hardwick where the Court had upheld such a law and said the federal Constitution does not intervene to prevent states from regulating sodomy in that manner.  And so the Court in Lawrence reversed itself and announced this rule for the first time.

CALLER:  But they don’t have jurisdiction according to the federal Constitution.  Something between a citizen and his own state the Court does not have jurisdiction so they should not be ruling on those cases.

YOO:  I guess what I would say is that is not true for all cases.  There are some cases between a state and its own citizens where it does have jurisdiction.  For example, one example that has been in the Constitution since 1791, since the Bill of Rights, is the Takings Clause.  So, for example, if the state takes your property without just compensation, federal courts can hear those cases and decide that it must either give the property back or pay you just compensation.

I think the problem is when the Court starts reading more open-ended phrases in the Constitution like “due process.”  The Constitution requires that the states provide their citizens with due process before it denies the citizens of life, liberty or property.  When the Court starts to read that clause really broadly to include the kind of law that we saw in the Lawrence case then I do think you have a legitimate concern about whether this is really an appropriate case for the federal court to exercise jurisdiction and to intervene in the relationship between a state and its own citizens.

GIACHINO:  Let’s go back to the Supreme Court.  We were talking about predictions and what might happen during President Bush’s second term.  I think one thing that we can all bank on when it comes to the Supreme Court is that any nominee will have an uphill battle in the Senate.   Do you think the filibustering of President Bush's judicial nominees is constitutional?

YOO:  I don’t think a filibuster against a Supreme Court nominee can succeed.  It’s only been done once and that was to Abe Fortas, who was an Associate Justice who President Johnson tried to elevate to the Chief Justice position at the very end of his presidential term.  And there were some ethical issues about Fortas and his relationships with Johnson.  The filibuster there was in some ways done to hold the seat open because it was so close to the next election in which President Nixon won.  So there is a single precedent but it wasn’t done to try to defeat him but more to keep the choice open for the next election which was right around the corner.

That said, I don’t think a filibuster of Supreme Court nominee at this time, so early in the President’s term, could succeed for a Supreme Court vacancy.  It would really be unprecedented.

Let me say one other thing.  There is a big difference between the Supreme Court and some of the lower courts.  Whatever the legality or justification for filibustering appellate court judges, there are 175 appellate court judges so if one or two do not get confirmed right away, you don’t see the judiciary screeching to a halt.  But there are only 9 Supreme Court Justices and there are plenty of cases decided 5-4 so you can’t leave a vacancy at the Supreme Court very long because it will affect the Supreme Court’s ability to do its very job.  I just don’t think one on the Supreme Court is going to succeed.

Secondly, I don’t believe that the filibuster rule makes much sense for the Senate.  Certainly,  it’s up to the Senate itself to decide its own rules.  It’s up to each House of Congress to decide its own rules and how it will decide things.  And the House and Senate have very different procedures.  There is nothing set in stone that the filibuster has to apply to nominees.  In fact, you could argue that it is only the Senate Democrats in the last four years who have ever done it. 

Another thing about the filibuster is that it is really designed for legislation to give the minority in the Senate the ability to slow things down so they can negotiate compromises in legislation and make changes.  It was never really designed for appointments, and that’s why it has never really been applied for appointments before.  You don’t make negotiations and compromises about a person — you make choices about a person and that person either gets voted up or down. You can’t negotiate the change of use of that individual and what they will do in office.

And the final thing is that I think there is some truth to the argument that the Constitution only says specifically that supermajorities are required for certain things like treaties and Constitutional amendments and everything else is presumed to be decided by majority vote.  If one party in Congress uses the filibuster consistently to turn the number of votes you need to get anything passed to a supermajority, then I think that is unconstitutional.

GIACHINO:  On the subject of filibustering, and we only have about a minute left, I want to get your opinion, as the purported author of the “torture memos” that have come under great controversy now with the confirmation hearings that began last week for Attorney General-designate Alberto R. Gonzales.  Do you think he will be confirmed by the Senate or meet the same filibuster debacle as did his fellow Hispanic last year, Miguel Estrada?

YOO:  I expect that Judge Gonzales will be confirmed by a large majority of the Senate.  I don’t think any Attorney General nominee has ever been filibustered.  The other thing I will say is that we have had a national discussion about interrogation and what kind of policies we should pursue against the terrorists and I think there was a difference between President Bush and Senator Kerry on these issues and I think the American people in the electorate made a choice and made a decision.  At this point Judge Gonzales is being nominated because he agreed and helped promulgate those policies.  I think the Senate does not have a lot of grounds to stand on to reject the outcome of the election and so I don’t expect there to be a big vote against him.

GIACHINO:  John, we are out of time.  Thank you so much for joining us this afternoon.  I would like to invite you back again to talk further about the nomination of Alberto Gonzales.  I thank you for your time this afternoon and all of your service to your country.  We appreciate it.

YOO:  Thank you, it was a pleasure.

January 27, 2005
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