Not Ready for Prime Time

There is---or at least there should be---no shame in a Senator not being an expert in administrative law, civil procedure, or Supreme Court jurisdiction. These are quite intricate areas of the law, and Senators are by nature generalists focused primarily on policy. To be sure, some members of the Judiciary Committee have, over the years, shown themselves to be real students of the law. Over 20 years ago, Joe Biden and Arlen Specter bested Robert Bork at his own game. And longtime Judiciary member Orrin Hatch knows his stuff (despite the error he made on Tuesday in characterizing the holding of Presser v. Illinois, as I noted in my FindLaw column yesterday). But most Senators, even most members of the Senate Judiciary Committee, cannot reasonably be expected to master all the intricacies of the law.

So why do they pretend that they have? Yesterday's proceedings included the following Senators making a mess of the law in the following ways:

1) Al Franken was quite exercised over the Supreme Court's ruling in the Brand X case, which he seemed to think rejected net neutrality as a requirement of the Telecommunications Act. Yet the case--which produced a non-ideological split (Thomas for the majority, joined by Rehnquist, Stevens, O'Connor, Kennedy, and Breyer, versus Scalia dissenting, joined by Souter and Ginsburg)--was only indirectly connected to net neutrality. The Court ruled that the FCC was entitled to Chevron deference in classifying cable internet service providers as providing "information service" rather than a "telecommunications service," and thus not subject to mandatory common-carrier regulation under the Act. (The case is best known among administrative lawyers for its rejection of the 9th Circuit ruling that a statute, once construed by a federal court, cannot be construed differently by an agency, even though the agency interpretation would be upheld as permissible under Chevron were it not for the initial judicial construction.)

I share Franken's concern about net neutrality, but, as he eventually seemed to realize based on Judge Sotomayor's answers to this line of inquiry, Congress is well positioned to require net neutrality if it wants. Indeed, even without new legislation, the FCC under Chairman Genachowski (a net neutrality supporter) could, consistent with Chevron and Brand X, now reverse the prior policy and re-classify cable internet providers as offering a "telecommunications service." Brand X said the current FCC interpretation is permissible, not required.

2) Herb Kohl expressed concern about the damage that had been done to antitrust enforcement by Justice Souter's opinion in Bell Atlantic v. Twombly, which, Kohl said, requires antitrust plaintiffs to offer a great deal of evidence before getting discovery. Judge Sotomayor corrected him by pointing out that because Twombly is a case about what one must plead, not what one must prove, it doesn't directly speak to evidence at all. The whole discussion was a mess, and it was embarrassingly clear that Kohl had no idea what the case was about, but was simply reading what his staff had (sloppily) prepared for him. He twice asked Judge Sotomayor to assume that he was correct in his incorrect understanding of Twombly and then asked whether she would follow his version of the precedent. Oy!

The pity here is that there is a real issue that could have been explored. First of all, the Court held earlier this year in Ashcroft v. Iqbal that Twombly's rule is not limited to antitrust cases; as an interpretation of Federal Rule of Civil Procedure 8, it applies in all federal civil cases. Second, Kohl was (perhaps unwittingly) onto something. Although Twombly and Iqbal do not directly require a plaintiff to produce evidence in the complaint, in requiring that complaints satisfy the Court's newly minted "plausibility" standard, these cases effectively require considerable factual detail. And here's the kicker: In order to allege factual detail in a complaint to satisfy Rule 8, one must have a reasonable basis for believing the allegations or else violate the requirements of Rule 11. So, as an indirect consequence of Twombly and Iqbal, all manner of plaintiffs are now going to be unable to proceed beyond the pleading stage because they haven't seen enough evidence to plead their case. For some plaintiffs, the new rules really do create a Catch-22.

If Kohl had been aware of any of this, he might have asked Judge Sotomayor whether, in her years as a district court judge, she had difficulty administering the prior rule of Conley v. Gibson (which Twombly overruled). If confirmed, Sotomayor will be the only Justice with experience as a federal district court judge, and that experience would be highly relevant to cases about the core of civil procedure.

3) Chuck Grassley asked a question that was positively brimming with misunderstanding. Here's what he said:
I want to say to you that there's a Supreme Court decision called Baker v. Nelson, 1972. It says that the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws, quote, "for want of a substantial federal question," which obviously is an issue the courts deal with quite regularly. I mean, the issue of is it a federal question or not a federal question. So do you agree that marriage is a question reserved for the states to decide based on Baker v. Nelson?
In the ensuing colloquy, Judge Sotomayor pretty clearly got that Senator Grassley was asking about same-sex marriage (a question she ducked), but eventually said this:
It's been a while since I've looked at that case, so I can't, as I could with some of the more recent precedent of the Court or the more core holdings of the Court on a variety of different issues, answer exactly what the holding was and what the situation that it apply to.
I'm guessing that prior to hearing Senator Grassley's question, Judge Sotomayor had never looked at Baker v. Nelson. Why not? Because it isn't really a Supreme Court case at all. Since 1988, the Supreme Court has had virtually complete discretion to decide what cases to hear by way of certiorari. But before that, it had a category of mandatory appellate jurisdiction. Of course, the Court couldn't realistically give plenary consideration to all of the cases on its appellate (as opposed to its certiorari) docket, and so the Court would often dismiss for want of a substantial federal question. The Supreme Court's entire "opinion" in Baker is as follows: "The appeal is dismissed for want of a substantial federal question." Really. That's it. The Court in essence summarily affirmed a Minnesota Supreme Court ruling that there is no federal constitutional right to same-sex marriage. In 1971.

Now we can't blame Senator Grassley for trying to make a big deal out of Baker. The blame for that falls on the Obama Justice Department, which is arguing in the federal court challenge to California's Prop 8 that Baker counts as a holding of the U.S. Supreme Court that is no less entitled to respect than any other precedent. That argument might work in the lower federal courts, for more or less the same reasons that Judge Sotomayor thought she was bound by Presser in her Maloney decision (discussed in my column at some length): Even the most cursorily reasoned decisions of the Supreme Court bind the lower federal courts unless and until overruled. But for the very reasons that Justice Scalia in his Heller footnote thought that the issue of 2d Amendment incorporation ought to be considered anew in the Supreme Court, notwithstanding Presser, so too, in light of Romer and Lawrence, it would make sense for the Supreme Court in a future case to take up the constitutionality of prohibitions of same-sex marriage de novo. In other words, Baker isn't really much of a precedent for the Surpeme Court itself.

It's also worth noting a spectacular confusion in Senator Grassley's initial question. The argument the Obama Justice Department is currently making asserts that Baker was a ruling on the merits. Yet Grassley says that the case holds that the federal courts lack jurisdiction to entertain challenges to state marriage laws. That's ridiculous. Perhaps someone should provide Senator Grassley with a copy of Loving v. Virginia.

Finally, let me re-emphasize that I don't think Senators Franken, Kohl and Grassley are fools. There is no reason for them to be well-versed in all the details of the law in the areas in which they were asking their questions. But given that, they might have asked themselves whether there were other questions they could have more usefully put to Judge Sotomayor.

Posted by Mike Dorf