The Solomon Amendment - Dare We Ask?

The Supreme Court upholds the Solomon Amendment which obliges colleges (and law schools) to host military recruiters.

Ann Althouse and Prof. Bainbridge have thoughts, the ScotusBlog digs deep, but I have an unrelated notion:

It strikes me as entirely likely that many of the law school profs that backed this resoundingly defeated challenge to the Solomon Amendment also back the notion that the NSA warrantless surveillance program is blatantly illegal.

Does anyone else think it might be fun and/or informative to try and match up professors and opinions on those two issues?  After all, folks who could take seriously a bunch of arguments that were shot down 8-0 might be slightly less credible on other legal issues where their own political agenda is clear.

It's just a thought, and time does not currently permit me to tackle this.

UPDATE:  Harvard's own Laurence Tribe joined an amicus brief in support of FAIR (30 page .pdf), and thinks the Admin position on the NSA is "poppycock".

The Taxprof Blog rounds up some blogger reaction.

Comments

[ajacksonian]

Interesting, yes. And it would indicate that many of them do not actually bother to read the document upon which the system of laws is based.

How unfortunate for them.

[vnjagvet]

A good point, Tom. I think it is very likely that you will find the same "usual suspects" vociferously opposing the NSA surveillance as suppported the FAIR suit.

When you don't even get one of the three or four liberals to go along with your argument, how good can your argument be?

Answer: Not good.

And how about the legal judgment of those who pushed this case and its rationale?

Answer: Not sound.

But these are the "best and brightest" the Academy has to offer?

Answer: Yeah, but they teach and do not litigate for a living.

[Gary Maxwell]

Holy cow vnjagwet nailed. I posted the quote of George Mason dean of the law school elsewhere where he calls it a "stinging rebuke."

Seriously though jagvet they could not see what a loser this was? Crimey even Ginsburg ( former general counsel of the ACLU) abandoned them on this. Or Roberts has the charm of an advanced intellect and she was dozing...

[vnjagvet]

I think they were counting on Stevens,Ginsburg and Breyer to carry their water for them in a five to four decision.

That at least would have gotten them the requisite "good" publicity in their circles, and kept the DADT issue in the public eye.

Sadly for them, they did not even come close to that result.

Rather, this makes them somewhat of a laughing stock and should diminish their credibility.

[Rick Ballard]

Gary,

The correct question (IMO) is "Who the hell appointed these mush brains to the Third Circuit?"

For the most part, the answer is "The most dangerous woman in America".

The case should have been howlingly laughed out before Roberts touched it. The key here is that the Third Circuit joins the Ninth in the "very suspect" category pending sufficient retirements.

I can't wait 'til the "other Roberts" is hung out to dry in the DC District on the NSA matter. That sucker is a danger.

[Gary Maxwell]

Rick

Was it just one of the strange empanelments that occur sometimes, where you get 2 or 3 liberals on a three judge panel? If yes we didn't the government ask for an en banc review of the opinion. Inquiring minds want to know!

[Gary Maxwell]

Other Roberts = Julia?

[Rick Ballard]

The Third Panel hearing the case was:

AMBRO - Clinton

ALDISERT - Johnson (my, how they cling)

STAPLETON - Reagan

So I missed by a bit.

[Gary Maxwell]

Johnson? Oh my how old is this dude, 112?

[Rick Ballard]

Gary,

No, the other Roberts is DC District - he's the one who was also a FISA judge and resigned from the FISA bench. Here is his bio. Note the '74 graduation from Vassar - makes ya feel sorta Alan Aldaish, no?

[Gary Maxwell]

I dont care if Vassar is now totally coed, its just not right to go there if you are male. Kinda like having a degree from Texas Womans University which says its coed now. who wants to put the sheepskin on the wall? Think aobut it.

[Gary Maxwell]

Got his M.I.A. (What the hell is that?) and J.D. the same year?

Dude kinda looks French to me.

[Anonymous Liberal]

I don't know, Tom. I suspect many law professors hoped this Solomon amendment issue would come out the other way, but I doubt too many of them expected it to. They knew it was a long shot at best. The NSA issue is very different. On that issue I'm pretty sure most law professors would bet the ranch that the administration would lose, even with this court.

[David Walser]

On a (slightly) related note, if you were helping your child select a law school, how impressed will you be if a majority of the law school faculty thought this case was a winner? If they can't spot a 8-0 loser, just how good at teaching the law can they be?

[Jimmy's Attack Rabbit]

In the Right-angle to Reality world failure is success. 8-0 is evidence of the dark night setting in.

[Rick Ballard]

"who wants to put the sheepskin on the wall?"

Gary,

Don't tie this into "Why Brokeback Mountain Didn't Win".

[clarice]

It's a good thought,TM, but it'll take some research. The case was brought by FAIR..and until you dig into the papers it's not clear which law schools were plaintiffs.

And then to see who backed this, you'll need to google and find news reports of professors at the various schools supporting it.
Why not play antique media games and just claim that every professor who speaks out against the NSA surveillance was a supporter of the Rumsfeld suit?
AlthoughTurley for one thinks the NSA action is wrong and yet thought this case was wrong, too.

[clarice]

BTW Yale was I believe the principal supporter of this suit. And everytime I think of Yale law school I remember why I still have fond thoughts of Juan Williams.
During the Thomas hearings some really horrific witnesses against Antia Hill showed up. A couple of black male Yale law students who'd attended school with her and testified that she was a wanton woman--that hey knew this from the way she looked at them across the room at a party or something equally bizarre..

The next day Juan wrote in the Wash Po that these witnesses proved the saying,"Yale law school had ruined more good Black minds than crack."

[Gary Maxwell]

OT Sheehan arrested again

want to see the views of her spokesperson at this media staged event. here you go:

http://rwor.org/a/020/ann-wright-interview.htm>Ann Wright Diplomat?

Foreign service type who resigned in protest of the Iraq war. Called it an illegal war that violates international law. Funny another article I found using Dogpile says when she resigned that she got 150 e-mails of support from foreign service types and State Dept eggheads. State Dept is crawling with these folks. And the publication above she is conversing with? An avowed organ of the Communist Party. Dont believe me?, try your own lying eyes then. Just follow the link at the top of the artilce and then surf around. It will soon be very apparent to you.

[Gary Maxwell]

Dont you love the pic of Dip Wright? Tell me why do the commies get all the hotties? LOL

[clarice]

Pheeeh--Well. now you csn see why we should leave national security in the hands of mandarins like Ms Wright and Mr Pillar..can't trust an elected executive to deal with matters of such moment.

[Gary Maxwell]

Here is a cut and paste of the article I found talking about Dip Wright. Several unintentionally funny graphs actually. Here goes:

Wright is the third senior diplomat to resign in two months over the administration's Iraq policy. But in her letter, Wright also expressed her concern that the administration has ignored the threat posed by North Korea as it pursues a nuclear weapons program. Wright also criticized the lack of participation over the past several months by the administration in resolving the Israeli-Palestinian conflict, and what she sees as the curtailment of civil liberties in the U.S. since the Sept. 11 attacks.

Since sending her letter to Powell, Wright said she has received about 150 e-mails from Foreign Service officers around the world expressing support for her actions.

John Brown, a career diplomat who also resigned this month, has said there is an air of dissent in the State Department over the administration's policies. But it's rare that Foreign Service officers use public resignations as a means of protest, or an attempt to influence administration policy.

Bush didn't solve the Israeli/Pali conflict, what a slacker! Are you shitting me? How about the screed about the curtailing of liberties in the US. How exactly would you know about that from the far reaches fo Mongolia? Rumors from your stateside foreign service jockey buddies?

And funny how the foreign service rarely uses the public resignation as a symbol of their protest ( and CONVICTIONS ). If only a few hundred money would just get on with the protest already then we could put John Bolton clones into the mix.

[clarice]

Ah, but should you find yourself in some dusty souk at the end of the earth, you'd want to have a list from the nearest foreign service officer who can tell you exactly where to get the finest beadedd slippers and the best harissa. And should you need to know how to pronounce the name of Mugabwe's deputy assistant associate Minister of Sewage..they are just what you need.

[Dumbledore]

The (peskily ubiquitous) Lawrence Tribe (who authored an amicus brief on behalf of HLS in Solomon) also wrote:

http://www.house.gov/judiciary_democrats/letters/tribensaconyersltr10606.pdf

"The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. It follows that the presidential program of surveillance at issue here is a violation of the separation of powers — as grave an abuse of executive authority as I can recall ever having studied".

There are, of course, all sorts of things wrong with his argument (including the fact that he - a bit earlier - actually uses the word, "Poppycock", which sounds silly from pretty anyone but Margaret Thatcher).

Especially egregious is that I believe that he made a similar assertion about the Hamdi case (in which the court later ruled that AUMF actually provided the authorization for Hamdi’s detention). You'd think he'd have noticed that bit really.

[clarice]

Good, we nailed Tribe.
Now, we need to pair him with a Harvard clown.

[clarice]

I meant a YALE clown..

[Gary Maxwell]

Tribe as in Gore v Bush right?

So which is it Harvard or Yale leading the charge here. The resemblance to Picketts Charge is quite striking and may lead to both institutions demurring on claiming credit for the lead.

[Gary Maxwell]

Dumbledore

The thought just stuck me after thinking aobut your post about how close Dip Wright and Lawrence Tribe Esq are in their views. Maybe my thread is not OT in the least. Think I am stretching? Go read the bit about loss of civil liberties and then think about the Hamdi stuff. Scary.

[clarice]

Bruce Ackerman at Yale argues the NSA surveillance is illegal as is the Hamdi detention--haven't found anything on his views on Solomon Act yet..

[clarice]

Duke law professor Erwin Chemerinsky is a named party in the suit along with FAIR and he argues the NSA surveillance is illegal.http://tinyurl.com/l7ukq

[clarice]

The membership of FAIR is apparently secret. Their site says they will not disclose the names of members unless they authorize that so it is hard to know which schools participated in this challenge.

Prof Bainbridge says the richer ones may simply forego federal funding.I think that's not likely. Especially as he notes the Court observed Congress could just order the recruiting be allowed even without the substantial monetary grants.

[Daddy]

I think I just figured out how Yale and Harvard can get the recent egg off both their faces.

First Yale should unload that Ramatullah Hashemi, their wonderfully multicultural 4th grade educated exchange student, who by coincidence just happened to be the Taliban's former Deputy Foreign Secretary in Afghanistan. That'll shut up John Fund and the WSJ from asking rude questions.

Hashemi should then be publically shipped over to Harvard where he can now take over Lawrence Summers Job as University President. (If he's qualified to enter Yale with a 4th Grade Education, surely now with a year in Undergrad, he's qualified to be University President, right?)

This'll help Harvard instantly because now when Hashemi holds faculty meetings and calls females ignorant sluts and cattle, etc, while simultaneously proposing stoning homosexuals, instead of suffering fainting spells, the faculty babes'll be enthusiastically cheering such a prestigious, cutting edge tolerant effort at outreach to the downtrodden.

Yale will now have to go some distance to maintain their own Ivy League multicult cred, but unfortunately what with Tookie Williams being dead and all, they can't use him to bale 'em out. I think however they can regain their status if, for their Driver's Ed Program, they hire that Islamic SUV driver with the lead foot from UNC Chapel Hill. Then anytime the U.S. Army Jag Recruiter's show up on campus to set up their little recruiting booth on the quad, square, whatever, just pass the keys to Muhamed, and tell him to take the Jeep Grand Cherokee for a spin down there to check 'em out. It goes without saying that Yale's got plenty enough free lawyers available to help him out should he get any more traffic tickets. That'd like like 2, 3, maybe even 4 birds with one stone. Might even give him one of them skull and bones license plates from that Frat Club Kerry and Bush used to belong to.

[Syl]

Daddy

LOL

I like the way you think. Hashemi as Pres of Harvard! Love it!

[TM]

Prof Bainbridge says the richer ones may simply forego federal funding.

My understanding is that the threat of a Federal funding cut-off applies to the whole university, not just the law school. Hard to believe any school is that rich and principled.

I also beleive that Harvard was criticized for not joining the law suit.

I suspect many law professors hoped this Solomon amendment issue would come out the other way, but I doubt too many of them expected it to.

Someone in pursuit of the truth would want to keep that in mind. OTOH, a Partisan Attack Hack would be thrilled to find some table-pounding nuance-free advocacy article insisting that the law schools had solid winning arguments.

[TM]

Apparently some Harvard profs did file an amicus brief on behalf of FAIR. The amicus briefs would be a good starting point for tracking down suspects.

[Gary Maxwell]

Prof Bainbridge says the richer ones may simply forego federal funding

Not a chance I will offer odds to anyone who thinks this is a good bet. Easy pickings for me.

Before you lay your markers down, remember all Federal aid including sudsidized student loans are Federal aid. When Harvard is down to only getting the Sultan kid, some swells from West Manhattan and Malibu it might mean some profs have to get real jobs. Remember who is running the show here, as they ran off the President unceremoniously. And just like the Foreign Service folks its rare to see the symbol of protest that is putting your job on the line for what you believe, especially in the Ivory Towers.

[noah]

AL, you previously refused to bet me on the NSA issue but I still want to get some serious money down...maybe you could put me in touch with some of those law profs that are ready to "bet the ranch" (gee isn't that something Bush would say?).

[Gary Maxwell]

Todd Zywicki says this:

Several dozen amicus briefs were filed on the losing side (including briefs in behalf of the professors at Yale University, Harvard University, Columbia University, New York University, Cornell University and the University of Pennsylvania

What Dartmouth and Princeton failed to get in on the fun?

[clarice]

They don't have law schools..And as I understand it this was to allow military recruiters to recruit law school grads.

[Gary Maxwell]

Well I did something I rarely do, I strolled over to Kevin Drum's site and took a gander at the comments section there. At least a few of the lefties are in full froth, one apparently threatening to pull California out of the Union. I would hate to see the Kos and DUmp right now. Really really sucks to be a liberal now, cant even count on Ginsburg to validate your views.

[clarice]

Gary, I agree..I cannot see them turning down the money. And should they do so, remember in this "symbolic case" they lost even more than they'd anticipated. The opinion says under the Constitution, Congress can compel on campus recruiting even without the grants. So, they end up with the possibility of losing the money and the point anyway.

[Sue]

Totally off topic, but what about this from New Jersey?

http://www.njleg.state.nj.us/2006/Bills/A1500/1327_I1.HTM> Makes certain operators of interactive computer services and Internet service providers liable to persons injured by false or defamatory messages posted on public forum websites

This bill would require an operator of any interactive computer service or an Internet service provider to establish, maintain and enforce a policy requiring an information content provider who posts messages on a public forum website either to be identified by legal name and address or to register a legal name and address with the operator or provider prior to posting messages on a public forum website.

The bill requires an operator of an interactive computer service or an Internet service provider to establish and maintain reasonable procedures to enable any person to request and obtain disclosure of the legal name and address of an information content provider who posts false or defamatory information about the person on a public forum website.

In addition, the bill makes any operator or Internet service provider liable for compensatory and punitive damages as well as costs of a law suit filed by a person damaged by the posting of such messages if the operator or Internet service provider fails to establish, maintain and enforce the policy required by section 2 of the bill.

[Gary Maxwell]

They are just gonna strut around with signs with various BDS shit on them ( forgetting this is BJC policy )and then gather and pat themselves on the back for being so so open minded and diverse.
Finally back to class with a soy double latte in one hand and a copy of Mother Jones in the other, one birkenstock in front of the other.

[Gabriel Sutherland]

Should I expect the law school to be handing off to the political science department on most issues?

Obviously the FAIR case is actually a political argument that they know they cannot win. Ergo, obtuse abuse of the courts to usurp the the rights of the people via legal decree. In this case, the court didn't screw the people.

Full froth eh Gary? The gays are to the left what latin ball players are to major league baseball; the future.

[maryrose]

If their main goal is diversity in student population ,the Ivy League colleges are going to have to take some students with financial aid needs. Unless they are ready to give them a free ride , government grants and loans will make up the majority of that financial aid package.
THe fact that a former Taliban person is taking a spot away from one of our students in America cries to heaven and is why diversity as an admissions factor is under fire.

[clarice]

As the ABA forced the law schools into anti-trust vilations (basically setting the salaries and cutting off lateral hires), they are now forcing them to violate the law on diversity in admissions, by requiring certain results and disregarding evidence of efforts to recruit qualified minorities. I think the FAIR case may be the beginning of the end of this kind of blinkered behavior.

[Gary Maxwell]

Gabe in both cases I think the proper term is the present reality.

[clarice]

While at least one law school professor who acknowledged the FAIR case ws weak, justified it as a "symbolic" protest of the (Clinton ordered) military policy re gays, the affect of this unanimous decision is broader than you might imagine. This language can be used if Congress chooses, to compel all schools, including high schools, to permit on campus recruiting:
[quote]The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and support Armies,” and “[t]o provide and maintain a Navy.”Art. I, §8, cls. 1, 12.13. Congress’ power in this area “is broad and sweeping,” O.Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981). But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, judicial deference . . . is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70.
Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’ choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities.[/quote]

[Gary Maxwell]

You know I have believed for a long time that the two most crucial of government functions were: To form a standing army and provide a common currency. Everything else can potential be done by the private sector but these are bedrock government functions best done by the government and without interference from fuzzy headed thinkers.

[maryrose]

OT
Dorn of the CIA is inclined to reject requests from Libby's lawyers because of security concerns and it would take 4 months to retrieve all that info.Fitz feels defense is trying to derail his case.

[larwyn]

Taranto today:

....Burt said. "We have a special claim that we have autonomy in running our affairs because we are a university, and there's a tradition of special respect for universities, and a special protection . . . to protect students from discriminatory or demeaning behavior. That argument was simply not presented to the court, and they didn't deal with it."

It seems highly unlikely that the Supreme Court, having rejected the argument that the access requirement is unconstitutional, will reverse itself on the ground that universities are "special."

Meanwhile, here is a complete list of universities that have said they will decline taxpayer funds rather than allow military recruiters on campus: .

They really didn't lose, just used wrong argument?

[Other Tom]

Contrary to Anonymous Liberal, I would bet the ranch that the NSA program would pass muster in the D.C. Circuit and in the Supreme Court--if not under the use-of-force resolution, then under the Constitutional argument. For separate federal appellate courts, including the FISA court, have acknowledged the president's undoubted power to gather intelligence concerning a foreign power without any need for a warrant. No court has ever suggested otherwise.

[clarice]

Well, if you're going to decide cases on the law and not feeeeelings...

[clarice]

larwyn--good catch..We ought to bookmark that one..Under SPECIAL.

[JohnH]

I'm not a constitutional expert, but it seems pretty obvious to me, regarding Yale's claim of "special treatment" for universities, that the pecking order begins at the top with the constitution (Court says no problem with Solomon there), then goes to Congress (which has legislated its intent rather plainly) and then somewhere down below that comes "special treatment" as a tradition for universities. How can any law prof. argue that tradition trumps legislation and the constitution?

[Rick Ballard]

Other Tom,

I'd be careful about the DC Circuit bit. It has a distinctly blueish hue to it. En banc it could determine sunrise occurs in the west if it would be politically helpful. I agree 100% about SCOTUS though. I keep wondering if Kennedy and Breyer are beginning to feel the shade from the emanations of the penumbras of the latest election returns.

You want to go out a winner, you know?

[JohnH]

The Left has spewed its guts all over this ROTC case. Once again, they have given a gift to the Republicans for the next few elections. How does Hilary or any other Democrat answer the question, "Do you support ROTC on campus?" It is a wedge that makes it very difficult for Dems to hang onto their base while portraying themselves as strong on defense.

[clarice]

I'm glued to the computer waiting for news of the first school to turn down the federal money.

[maryrose]

JohnH:
perfect wedge issue but I bet Hil finds a way to straddle it.

[clarice]

John H, which Congress critter do you see introducing legislation directing that all high schools must permit on campus recruiting by the military?

[topsecretk9]

Thanks Larwyn...and

DO NOT miss Taranto's "Great Moments in Journalism" at the bottom.

NyTimes ALREADY having reported on the bogus blonde extinction story and Aaron Brown and CNN's 5 months of Tsunami coverage.

Priceless

[JohnH]

Clarice, I am more of the contrarian bent, and I hope that no legislation is adopted to force anyone to admit recruiters. It would take away a potent issue. Also, when and if Ivy League law schools admit recruiters under duress, what will happen? Protests?

It is truly sad that we as a country have come to the point where so many believe such outrageous nonsense about members of the military, who are their former neighbors. Even at my extremely leftwing church, the bulletin each Sunday has a list of church members who are serving in the military, and the list is close to one hundred. Yet plenty of members of my church would keep the military recruiters out of schools.

[JM Hanes]

Sue

Since betting seems to be the theme du jour, I'd say odds are Assemblyman Biondi got slimed in a forum and wants to know who dunnit. Add a new folder to the files and call it Vanity Legislation! The guy doesn't even bother to state the purpose of the regulation he's proposing. LOL!

[Sue]

JM,

Good grief.

[clarice]

John H ..I don't see Congress doing this though the Court said it could.
Yes, there will be protests and when there are there will be consequences..In the meantime, the universities look like moral midgets..Not one has yet announced it will turn down the money. What they wanted was a cheap shot to look like their opposition to the war was really an effort on a different,high moral plane--a plane which was, in fact, so low it doesn't include giving up a penny. They hoped, of course, to compel the government to do THEIR bidding because...well..they're so SPECIAL.

[Rick Ballard]

Clarice,

The SCOTUS decision is effective today, right? Shouldn't notices be going out to students informing them that their loan guarantees are null?

"Sorry dude, your loan got called - you're outta here."

Usually, burning an effigy is sufficent, but I imagine the kids could dig up something from Savanorola's auto da fe that would be appropriate. You just need a nearby river in which to toss the ashes...

[clarice]

Aren't you astonished that not even the schools like Harvard and MIT and Yale with endowments that would make a Pharoah blush with envy haven't yet announced they're opting out? Wow, what a surprise.

[clarice]

Once is enough when it comes to negatives per sentence--leave out this one
that[ not] even the schools

[larwyn]

If you read Dr.Sanity you know it isn't wise to be on the wrong side:

CHEAP GLORY at Dr.Sanity

........And not only that, these legal eagles were so outraged by this horrible group, that they absolutely insisted that it was their right to continue to recieve millions of dollars from them--even as they tried to exclude them from their campuses.

Now, seriously, don't you think such a position takes real moral courage and a willingness to stand up for what you believe--even as you pocket the payola? No, I don't think so either.

Not only is this an example of supreme narcissism in its most entitled and malignant form; but consider this: these are the legal intellectuals who are supposedly teaching the next generation of legal scholars the meaning of the constitutional values on which our country was founded. That is truly frightening.

Not only are they cheap literally and figuratively; they're also remarkably deficient in the intellectual and moral departments.

- Diagnosed by Dr. Sanity

[maryrose]

I'll lay odds that NO ONE I repeat no one will turn down federal dollars, because they need fed money to continue paying their tenured anti-government professors.circa Ward Churchill-Is that guy ever going to get kicked out after plagirizing and spewing anti-American venom as well as lying about his ethnic heritage.

[Rick Ballard]

Correct Dr. Sanity link - it really is a smasher.

[JM Hanes]

Dr. Sanity points out:

Those who engage in the behavior, spend a lot of time rationalizing it, too. That is why the most blatant examples are so sensitive to any comments about their patriotism.

Or anything which could conceivably be declared to resemble such an affont, whetner explicit or tacit. I thought his emphasis on narcissism was a particularly well placed.

[Charlie (Colorado)]

Maryrose, I went to one of those places, and I can tell you, the Earth will stop spinning before Duke gives back the DARPA money.

Not to mention NIH money to Duke Med.