Monday, July 27, 2009

Sessions and Sotomayor on Making Law

Senator Session and Judge Sotomayor agreed during her confirmation hearing on at least one thing - good judges should not make law. They were both wrong.

The fact is that judges, particularly Supreme Court Justices, do make law. They cannot avoid it. Judge Benjamin Cardozo wrote the definitive work explaining how judges make law. Judges rely upon precedents, which are decisions in other cases with similar facts and issues. In most cases these precedents are not “on all fours.” The court must select the most persuasive precedent which controls the case at hand. In so doing they extend the influence of one precedent and limit the application of another. Cardozo thus pointed out that the law is made in the interstices between precedents.

Consider the Firefighters case in which Judge Sotomayor’s court was reversed by the Supreme Court last month. The City of Hartford had given a civil service test to firefighters in order to determine who was entitled to promotion. All of the successful applicants were white, and if the test were allowed to stand, no Afro-American firefighters would have been eligible for promotion. The white firefighters claimed that this action was reverse discrimination. Essentially the case involved the primacy of two competing values. On the one side the City was concerned about its duty to avoid discrimination against the historically disadvantaged, primarily Afro-Americans and women. They were apparently concerned that failure to promote any non-whites would be deemed to be unlawful discrimination itself. The white firefighters challenged the city’s action as discriminatory towards them who had achieved the eligibility to be promoted based on merit. The Second Circuit panel, which included Judge Sotomayor, deemed the city’s concerns to be adequate to avoid constitutional challenge. The Supreme Court reversed.

Did the Supreme Court make law in that case? Absolutely. You can be assured that city attorneys throughout the country are writing opinion letters advising their clients that from now on, when they give these tests, they should be prepared to live with the results.

Would the Supreme Court be making law if it had ruled for the city? Absolutely. The opinion letters would have contained different advice that even after the test is taken the city must take a second look to determine whether the exam results had a discriminatory effect.

Regardless of the ruling, the opinion letters would treat the decision of the United States Supreme Court with the same respect and authority as a statute enacted by Congress on the subject.

The Supreme Court makes law in another way. There are thousands of cases filed with the Court every year and which actually hears only about a hundred of them. The decision as to which cases will be heard is highly discretionary. The court does not necessarily pick cases on the basis of whether the decision in the lower court is right or wrong. They search for the cases the are of sufficient importance for them to address the issue.

This process of deciding what case will be heard gives the court the opportunity to pick the subject which the court itself wants to speak about. For instance, when Earl Warren was Chief Justice, a liberal Court took many case involving criminal justice and civil rights. A more conservative Court under Chief Justice Rehnquist look harder as cases dealing with states rights.

Which brings me to another misstatement which Sessions and Sotomayor also cozily agreed upon. They seemed to agree that the personal values of the judge do play a role in judicial decision making. I do not know where they got that from. Court opinions are rifled with explanations as to why their decisions produce a just result. The determination of justices as to what is just is inexorably tied to their own personal moral, practical and ethical values.

Judge Sotomayor made a gaffe in her speech at Duke University when she suggested that a Latino female may be able to decide cases wisely than others. After all a gaffe is frequently an inadvertent blurting out of an unpopular truth. It is foolish to deny that judges are not strongly influenced by their own life experiences when defining what is just and fair. From her point of view I am sure that she believes that her humble beginnings allow her to bring a fresh point of view to the Court. I am disappointed that she backed down on that point.

I am not suggesting that Senator Sessions was making an improper inquiry. He simply did not frame the issue correctly. Court should act within the framework of the law and not stray into matters that are legislative. Activist courts are sometimes accused of attempting to achieve a desired result by disregarding the legal framework in which they operate. Two cases that have been heavily criticized as being non-judicial are Roe v. Wade and the presidential election case which broke the tie between George Bush and Al Gore. Sessions was addressing a concern as to whether Sotomayor acknowledged the constraints that should be placed on the exercise of judicial power. Sotomayor understood what he was driving at and professed that she knew her place. By so doing she has probably avoided a bloody fight over her nomination.

Saturday, July 11, 2009

Global Warming III - What is the solution?

Even if we have the political will to address the global warming threat, what can we do about it?

Carbon emissions increased globally from a rate from about 1.1% per year in the nineties to more than 3% a year in 2001-2004. Broecker and Kunzig comment, "[N]o matter what happens in the West, the world’s energy consumption is going to increase dramatically in this century, not decrease. And most of that energy will probably continue to come from fossil fuels, above all coal. They are cheap, readily available, and incredibly convenient to use - and we have a global infrastructure of power plants and refineries and pipelines and gas stations that is built around using them." (P.189)

The environmental lobby has understandably focused on conservation measures that cut down on the volume of emissions. The list of energy saving ideas is long and growing. Each proposal has its champions- higher gas mileage, electric and hydrogen powered cars, windmills, solar systems, nuclear power, ethanol and so on. All of these proposals appear to be more of a palliative than a solution. For instance, it would require a sixty five foot wind mill for every man woman and child to meet our needs. Nuclear power is promising, but until nuclear fusion or some other safe, reliable system of waste disposal is developed, it will continue to be limited. Solar power is a long way from becoming cost efficient. It now costs about twenty times as much as coal fired energy. And then there is ethanol. The best I can tell, the chief function of ethanol is to help politicians win votes in the Iowa caucus.

A second approach would be to remove carbon emissions before they reach the atmosphere. The power industry is enthusiastic about flue-gas scrubbing that removes carbon from the emissions before they are released into the air. Scrubbing can be effective on new plants under construction but there is no economical way to add scrubbers to existing power plants. Scrubbing is not practical for automobile emissions, which represent 20% of the carbon emissions. Scrubbing may never become a universal solution to carbon dioxide removal. Nevertheless, coal is the cheapest and most plentiful energy source, and technology that can make the product environmentally friendly should be a welcome addition to the arsenal.

Still another approach involves preserving the capacity of nature to remove carbon from the atmosphere. Much is made of the reduction of rain forests in places such as South America. A green world will be cleaner than not, but land sources for absorbing carbon dioxide such a rain forests tend to be overestimated as the means of containing the spewing of carbon into the air. Only about 15% of the carbon dioxide emissions are consumed by natural forces on land, less that half as much as is absorbed in the ocean. That leaves 50% to remain in the atmosphere. I suspect that the best means of retaining nature’s capacity to absorb carbon may be to avoid heating up the earth, because warm waters actually release carbon dioxide into the air. So we are in a Catch 22. The earth warms and the earth consumes less carbon. The carbon retained in the atmosphere heats up the earth in turn releasing more carbon. And so on.

There remains one more option, namely the removal of carbon dioxide from the atmosphere. This alternative was once considered the most ineffective solution because carbon is far less concentrated in the atmosphere than at the source of emissions. Flue gas is reduced from approximately one part in ten to one part in a million when it reaches the atmosphere. As a result, the scientific community long ignored that alternative.

Claus Lackner, a theoretical scientist, came to the conclusion that there is existing technology available that could remove carbon from the atmosphere efficiently and economically. He sold Walter Broecker on the idea, and Broecker became his champion. Through the use of venture capital, Lackner teamed up with Allen Wright to form a company that built an air extraction prototype. The prototype has been completed and Lackner’s company has declared the project a success.

If it works, the air extraction project solves many of the seemingly intractable issues. The new technology takes only a fraction of the space of wind power and does not raise the esthetic and environmental issues that wind power presents. A carbon waste must be disposed, but it can be done without presenting the toxic threat of nuclear waste. Also, because the carbon is found everywhere, the scrubbers can be located conveniently in the parts of the world where disposal is undertaken. Most important, this technology may prove to be affordable.

Broecker believes that the Lackner project holds the best prospect for fixing the climate. I certainly hope that he is right. Under any circumstances, I am convinced the ultimate solution, if there is one, will come out of our capacity to invent new technologies and that the best investment of public and private resources lies in research and development projects such as the Lackner company.
 
References:
Broecker and Kunzig Fixing the Climate (Hill and Wang 2008)
"Scrubbing the Skies," Economist.com (March, 5, 2009)