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Newsroom Doug Kendall and Jennifer Bradley on Senator Specter's letter to Judge Roberts ACSBlog Doug Kendall is the Executive Director of Community Rights Counsel. Jennifer Bradley is Community Rights Counsel's Federalism Project Director. As previously reported by ACSBlog, last week Senator Specter sent Judge Roberts this letter to prepare him for his confirmation hearings. “Was it over when the Germans bombed Pearl Harbor? NO!” From the movie Animal House It seems ungrateful to quibble with the letter Senator Arlen Specter sent to John Roberts last week. After all, Specter’s letter was both courageous and transformative. In it, Specter excoriated “the judicial activism of the Rehnquist Court.” Specter’s principal target was the Court’s 5-4 ruling in U.S. v. Morrison, a 2000 case that struck down parts of the Violence Against Women Act despite reams of data showing how this violence detrimentally affects interstate commerce. Five years after Morrison, Specter plainly remains furious at the Court’s disrespect of Congress’ judgment of the need for a federal role in addressing gender related violence. Specter expressed his determination to confirm only “new justices who will respect Congress’ constitutional role.” Specter then laid out pointed and specific questions that he expects Roberts to answer to allay his concerns, including a question that expressly calls on Roberts to express his thinking “on the jurisprudence of U.S. v. Lopez and U.S. v. Morrison, which overturned almost 60 years of Congress’ power under the Commerce Clause.” Specter’s letter is far from the first criticism directed towards Morrison. In Morrison, a bipartisan coalition of 36 state attorneys general asked the Court to maintain a federal role in addressing violence against women. The Court rejected this plea, leading Justice Souter (a former state attorney general) to acidly note in his dissent, “It is, then, not the least irony of these cases that the States will be forced to enjoy the new federalism whether they want it or not.” More recently, Judge John T. Noonan, a now retired Reagan appointee to the Ninth Circuit Court of Appeals wrote a blistering critique of the Rehnquist court, accusing it of aggrandizing itself by placing unjustified curbs on federal power. But until Specter’s letter, Republicans on the Senate Judiciary Committee had been nearly silent on these cases, particularly in the context of appeals court nominees like Bill Pryor, William Myers, and Janice Rogers Brown that had records supporting the roll back of federal protections. Specter’s letter is thus welcome, if overdue. More importantly for present purposes, Specter letter alters the Supreme Court confirmation landscape rather dramatically. It should ensure a thorough vetting of Roberts judicial philosophy at his upcoming hearing. It is one thing for Democrats to demand that Judge Roberts answer specific questions about his views: it is another when this request comes from the Chair of Senate Judiciary. Specter has also laid down an important marker for future Supreme Court fights. John Roberts, whose record on the Commerce Clause is somewhat indeterminate, may be able to assuage Specter’s concerns. But it will be much harder for potential future nominees such as Michael Luttig, Edith Jones, and Janice Rogers Brown, who have more fully developed records of hostility to Congressional exercises of Commerce Clause authority, to meet Specter’s test. But the importance of Specter’s letter makes its flaws all the more important to highlight. While Specter is right to criticize Morrison, he’s trying to prevent its extension in the wrong way. Roberts can easily assuage Specter’s concerns about disrespect for Congress in the Lopez and Morrison decisions by criticizing the Court for questioning Congress’s “method of reasoning” (as it did in Morrison) and by explaining his views of judicial restraint. While this might mollify Specter, it will not reveal anything about Roberts’ views on the critical constitutional line that Lopez and Morrison try to draw between economic and non-economic activities in Commerce Clause cases. That is the most important federalism jurisprudence question for Roberts, not whether he’ll be polite to Congress. Specter asks about both the Lopez and Morrison cases, but he’s clearly most bothered about Morrison—as he should be. The impulse behind the Gun-Free School Zone Act (GFSZA) invalidated in Lopez is admirable, but the legislation itself showed little regard for basic principles of federalism. To progressives, federalism should mean that Congress has the ability to craft national solutions to national problems; and the states should have latitude to address problems that are particularly acute within their own borders. In the GFSZA, Congress did not establish a record showing that there was a national problem of gun violence that it was trying to address. (That doesn’t mean one didn’t exist, it just means that Congress didn’t “show its work.”) Second, Congress did not create a national solution. Instead it took a cherry-picking approach, focusing only on school zones. Because it reminded Congress that federalism means something, Lopez is a welcome addition to Constitutional jurisprudence. Morrison is a very different case. Before it passed the Violence Against Women Act (VAWA), Congress collected an enormous amount of research that justified its conclusion that violence against women is a national problem with significant impacts on interstate commerce. The VAWA provision that the Court struck down did not apply just to isolated geographic areas, but everywhere. Yet the Court still found that the section of VAWA at issue violated the Commerce Clause and impinged on state prerogatives because Congress was inappropriately trying to regulate non-economic activity. After Morrison, Congress is more or less free to regulate economic affairs, but it has to meet some as-yet-unspecified test before it can regulate non-economic actions. This economic/non-economic distinction sounds clear, but it dissolves under a little analytical pressure. Is crime an economic or non-economic issue? Education is ostensibly a non-economic issue, but it dramatically affects markets and workers. The economic/ non-economic distinction seems just as slippery and hard to discern as the line between “commerce” and “manufactures” that the Court tried to police in the 1920s. And this economic/non-economic line goes to the heart of the concerns many have expressed over Judge Roberts’ views on the Commerce Clause. While on the DC Circuit, Judge Roberts wrote an opinion seeking reconsideration of an Endangered Species Act case involving a now famous “hapless” arroyo toad. Viewing the regulated activity narrowly as the harming of the toad – and ignoring the commercial development that put the toad and other endangered species in peril – Roberts questioned whether the regulated activity was actually “economic” and suggested that he might rule that important parts of the Act are beyond Congress’ Commerce Clause power. Specter should recognize that the economic/non-economic distinction is a much more significant threat to Congress than the Court’s careless language in the Morrison opinion about Congress’ “method of reasoning” in contrast with the Court’s own “uniquely judicial competence.” We already know that Roberts will not say that federalism requires the Court to be rude to Congress. We must find out—Specter must ask—whether Roberts believes that federalism requires a slippery, troubling economic/non-economic distinction in Commerce Clause jurisprudence.
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