Q & A with Jim Huffman, Dean Emeritus of Lewis & Clark Law School
From 1993 to 2006, during your time as dean of Lewis & Clark Law School, the Environmental Law program was consistently ranked one of the top two programs in the country. You were also the chair of the Executive Committee of the Environmental and Property Rights Practice Group of the Federalist Society. How were you able to manage such ideologically juxtaposed legal philosophies? Were there conflicts?
My job as dean was to promote the interests of the law school and to support the efforts of the faculty and students. The environmental law program was responsible for putting on the national map what previously had been a local law school. So promoting and developing the program was critical to advancing the law school's interests. If there was conflict, and there was some, it was largely about the appropriate direction and content of the program. I always advocated for a curriculum encompassing both traditional natural resource law (water, oil and gas, mining and public lands) and the law inspired by the environmental movement of the 1970s (pollution and hazardous waste control, environmental assessment, endangered species and wildlife habitat protection, etc.). I also resisted our becoming an "environmentalist" law school. While I recognized that the majority of our students are drawn to environmental law because they want to represent environmentalist organizations and interests, I also knew that we have students seeking to represent property owners and resource development interests. More importantly, I believe the role of legal educators is to prepare students for representation of any and all interests affected by our environmental and natural resource laws. The conflict over the mission of the environmental law program surfaced most prominently in my efforts to create a clinic in which students would represent natural resource developers (farming, ranching, mining, logging, etc.). Some faculty opposed the clinic as inconsistent with the law school's environmentalist image. The compromise was the creation of the Western Resources Legal Center as an independent 501(c)(3) where law students earn academic credits while working for resource users.
My work with the Federalist Society's environmental and property rights practice group did sometimes conflict with many of the environmental policy objectives of the law school's environmental faculty, but was consistent with my own views on the relative merits of command and control regulation versus approaches that rely on property rights and markets to achieve environmental goals -- what has come to be known as free market environmentalism and is reflected in several policy initiatives including emissions trading, congestion pricing, and user fees for access to environmental amenities. I suspect some of my faculty colleagues had reservations about my Federalist Society association, but they never suggested it was inappropriate.
I did occasionally ask myself why my generally left-wing colleagues would want me as dean. My answer, only partly in jest, is that they figured a libertarian and fiscal conservative like me would be better able to commune with people of means who might be persuaded to support the law school, and that getting me out of the classroom would lessen my influence on students.
In 2010, you were the Republican nominee for U.S. Senate against Sen. Ron Wyden. What did you learn from that race, and what conflicts and intersections do the worlds of academia and modern American politics share?
I learned that our politics is hopelessly devoid of serious policy debates, that the dominant task for a political candidate is to raise money, that the campaign contributions disclosure laws discourage support of long-shot challengers (contributors do not want the likely-to-be-reelected incumbent to know they supported the opposition), that Oregon is deeply divided between the Portland-Eugene corridor and much of the rest of the state, that much of rural Oregon is economically depressed with little influence on state policy, that the Oregon Republican Party provides very little support to Republican candidates, and that it is extremely expensive to advertise on statewide television and radio, making it difficult for challengers to communicate beyond the relatively small activist base of the party. But not all of the lessons were negative or discouraging. I met many wonderful people in every corner of the state and had the pleasure of visiting every county and seeing up close the amazing natural beauty of the state.
I suppose a parallel between academic politics and Oregon politics is that both are dominated by the left. But fortunately most of academic politics has limited consequence for the broader community. It is often said that academic politics are so rancorous because so little is at stake. Modern American politics is equally rancorous, even vicious, but much is at stake. Getting past the deeply partisan state of our politics is one of our biggest challenges as a democratic republic.
On July 9, President Trump nominated Judge Brett Kavanaugh to the U.S. Supreme Court, replacing Justice Anthony Kennedy. That same day, Sens. Wyden and Merkley issued statements rejecting Kavanaugh's nomination.
Wyden: "There can be no mistaking Trump's Supreme Court nomination for anything but what it is: a direct attempt to overturn Roe v. Wade. American women could lose the right to chart the courses of their own lives, finding their futures are determined by whims of fanatical state legislators and the availability of contraception. Make no mistake: We will not go back to those days."
Merkley: "We knew that if Donald Trump picked anyone off his lists of extremists, fundamental rights would be at stake. Now the decision has arrived, and everything we feared is on the line."
Is it true? Do you believe that Kavanaugh's appointment will lead to Roe v. Wade being overturned? Is it appropriate for Oregon's senators and other Senate Democrats to prematurely reject the appointment before hearings take place, without granting Kavanaugh a courtesy meeting?
The likelihood that Kavanaugh's appointment will lead to the overturning of Roe v. Wade is near zero. Kavanaugh has a strong record of support for the principle of stare decisis and deference to long-established precedent. But even if Kavanaugh would vote to overturn Roe, there are not four other votes on the Supreme Court to do so. Only Justice Thomas has ever argued for the reversal of Roe and I do not believe Chief Justice Roberts would ever agree to such an action. The more realistic fear is that Roe's protections might be whittled away as states enact various more limited constraints, but the basic premise of Roe will, I believe, survive Kavanaugh and even another Trump nominee should the occasion arise.
Our senators' immediate opposition to the Kavanaugh nomination is premature, but sadly consistent with the modern state of judicial confirmations. The process has become entirely partisan, with the only senators breaking party ranks being those who believe they need to do so in order to get reelected. Of course the Republicans would be similarly partisan and premature had Clinton been elected and nominated an equally well-qualified candidate for the high court. Unfortunately the Supreme Court is partially to blame for this rigid partisanship in the Senate. Particularly on issues of partisan political disagreement, like abortion and immigration, a division of left and right (based on the party of the appointing president) on the Supreme Court is all too predictable. The same is true in the courts of appeals. Perhaps the root of the problem is that political questions that should have been resolved in Congress or in state legislatures end up in the courts because legislators, unwilling to make the hard political choices, write vague laws that leave the political choices to the courts. Senators Wyden and Merkley should be leading an effort to restore a judicial confirmation process focused on judicial qualifications. Instead they have embraced the politicization of that process.
In the war between Democrats and Republicans in the U.S. Senate in recent years over federal judicial appointments and cloture, does either political party wear particularly a black hat in escalating this crisis? Was Harry Reid right to end the filibuster in the Senate over lower court nominations? Was Mitch McConnell right in not allowing President Obama to have a hearing of his nominee Merrick Garland during a presidential election year?
Neither party has clean hands. The process has always been political and there have been a significant number (in the range of almost 40) of Supreme Court nominees who have been rejected or withdrawn on the prospect of rejection. In most of the cases the failure of a nominee was more about politics than qualifications. But there was still a sense of comity on both sides out of recognition that no party stays in the majority forever and maybe even out of a sense of higher duty to the nation. But since the rejection of Robert Bork during the Reagan administration it has been downhill, and the partisanship has spread to lower court nominees as well. So Reid's ending of the filibuster for lower court nominees was a natural step in the general deterioration of the process, as is the Republican abandonment of the filibuster in Supreme Court confirmations of Supreme Court nominees and, more recently, the apparent abandonment of the deference to the views (expressed by returning or not returning the "blue slip") of the senators from the home state of a nominee.
As for the Merrick Garland case, I think it was disingenuous of Senator McConnell to attribute not acting on the nomination to the pending presidential election. If the Senate should wait until an election to take action on a judicial nominee because a new president might be elected, why shouldn't the Senate also wait to take action on any legislative item. But the reality is that the Democrats would have done exactly the same thing if the tables were reversed, so it is disingenuous of Democrats to argue that McConnell had somehow violated the constitutional process. The reality is that the Senate is not constitutionally required to act on any nomination no matter when it occurs. As with many other matters in the legislative process, inaction is action.
Leonard Leo of the Federalist Society is credited with constructing the list of 25 names that President Trump used to select both Neil Gorsuch and Brett Kavanaugh for the Supreme Court. Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution, recently told NPR, "The Federalist Society really grew up as an organization that promoted Antonin Scalia's conservative judicial philosophy."
As a long time member of the Federalist Society, does it surprise you that President Trump has worked so exclusively from Leo's Federalist society list in picking Supreme Court justices?
Do you agree with Hollis-Brusky that Scalia's ideas of originalism and original meaning in the Constitution define the Federalist Society?
It surprises me only in that President Trump seems to take little advice on most other issues. Why he has been completely dependent on the Federalist Society for judicial appointments at all levels of the federal court system is a bit of a puzzle. But it is a very good thing from the perspective of conservatives and libertarians. A more puzzling question in my mind is why most previous administrations on both sides of the political spectrum have not been prepared to hit the ground running on judicial appointments. The Federalist Society has been committed since its founding to the principle of judicial restraint as an essential attribute of the separation of powers. Leonard Leo was well prepared for this opportunity should it come along. That Trump presented the opportunity to Leonard and the Federalist Society may be a reflection of Trump's recognition that, but for the judicial appointments power of the president, he would probably have lost the election. When I challenged many of my Republican friends and associates to explain why they were supporting Trump, almost to a person they said because of the courts. They did not want to see the federal courts filled with Hillary Clinton appointees. The genius and fortuity of the Federalist Society's list is that the prospective nominees are both philosophically attuned to the conservative/libertarian agenda and supremely qualified to serve on the federal bench. That is why Democrats are scrounging for dirt on Kavanaugh. They cannot seriously challenge his qualifications.
I do not agree that the ideas of originalism and original meaning define the Federalist Society, but I do acknowledge that those ideas are widely adhered to by members of the Society. The Federalist Society is far more diverse that its detractors acknowledge. Its membership encompasses social conservatives, fiscal conservatives of moderate or even liberal social views, and libertarians. For example there are Federalist Society members who object vigorously to a constitutional right of gay marriage and others who strongly agree with the Supreme Court's ruling on that subject. While they might all agree with the abstract principle of originalism, it yields very different results depending on your reading of basic constitutional principles. Many Federalist Society members adhere to Robert Bork's (and Justice Scalia's) view that individuals have only those rights expressly enumerated in the constitution while other members believe that the 9th amendment means what it says in recognizing unenumerated rights. What unites Federalist Society members, I believe, is rejection of the idea of a "living constitution" -- the view that the courts are responsible to adapt the Constitution to changing circumstances and changing social values.
If Brett Kavanaugh is confirmed, the U.S. Supreme Court will be made up of five lawyers from Harvard Law School and four lawyers from Yale Law School. Are there no other good law schools in the country? Why does the Supreme Court seem to be one of the last and deepest bastions of American elitism?
There are other good law schools, including my own Lewis & Clark. But the reality is that with rare exceptions, the very best students end up at the very best law schools. Harvard and Yale are certainly among the very best (in significant part because they get the best students), but there are a dozen others that compete with them for students and graduate equally stellar judicial prospects. So I think it is unfortunate that the entire court is drawn from two law school located less than 200 miles from each other. While I don't believe the courts should be in the business of accommodating the law to local or regional differences, I do recognize that judges are unconsciously influenced by where they come from. Having justices from a broader range of law schools would be a good thing. On the other hand, I don't condemn elitism out of hand, if what it means is recruiting the very best (the elite) lawyers to the judiciary.
Last month a New York Times article, "Lessons From a Failed Nomination, for Brett Kavanaugh and the Senate," describes how Sens. Wyden and Merkley worked behind the scenes to torpedo the confirmation of Ryan Bounds to the U.S. Ninth Circuit Court of Appeals.
Bounds' nomination survived 1) Sens. Wyden and Merkley's refusal to return their "Blue Slips" on the appointment, 2) a partisan Judiciary Committee vote, and 3) a Senate cloture vote. Then, on July 19, Senate Majority Leader Mitch McConnell withdrew Bound's nomination after South Carolina Sen. Tim Scott changed his mind about confirmation.
The NYT quoted Sen. Wyden on the withdrawal. "'Today, the Senate came to its senses with respect to judges,' said Wyden, who teamed with his home state Democratic colleague, Jeff Merkley, to try to educate Republicans about Mr. Bound's writings from his time at Stanford. (Democrats cited numerous articles they considered racist, inflammatory and offensive.)"
Do you think Ryan Bounds was treated fairly by the Senate? Was it appropriate for Sens. Wyden and Merkley to work behind the scenes to destroy the nomination?
I do not think Bounds was treated fairly, but fairness has little or nothing to do with the process as it now functions. Both parties will do whatever it takes to defeat a nomination by the president of the opposite party. So what Wyden and Merkley did behind the scenes is exactly what I would expect them to do. It is wholly unprincipled, but it is the way the game is played. What I find most objectionable is to resort to personal disparagement. I know Ryan Bounds to be a good and decent man, not to mention a highly skilled lawyer. I would rather that Wyden and Merkley had forthrightly acknowledged that their opposition was entirely about politics and shown the decency not to defame a good man. If everyone who wrote provocative articles while in college is thereafter condemned to being a racist or misogynist, few of us with any gumption would qualify for any public office.
In the case of Janus v. AFSCME, this June the U.S. Supreme Court ruled 5-4 in favor of Janus and overturned the Court's 1977 unanimous Abood decision. Judge Alito wrote, "The state's extraction of agency fees from non consenting public employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled."
Assuming you agree with the decision and Alito's reasoning, how important is the decision for Oregon politics? Can we expect the public employee unions to conduct themselves in the future in the spirit of the Supreme Court's decision?
I do agree with the decision and I believe Justice Alito's explanation for why stare decisis does not dictate a different result in the case is sound. The Abood majority was simply wrong in concluding that it is possible to isolate political expenditures from the other things unions do with their members' dues. I believe the decision, if successfully enforced, will have a significant impact on Oregon politics. The Democrat Party has relied heavily on contributions from the public employee unions and Janus will result in significantly less capacity on the part of unions to make those contributions. But I would expect the public employee unions to do everything they can to avoid the consequences of the decision, as would any interest group negatively impacted by a Supreme Court ruling. I would anticipate creative new approaches to extracting support from non-union members and ongoing lawsuits testing the legitimacy of those creative approaches. Because the Oregon legislature is dominated by Democrats and those Democrats have been the beneficiaries of the Abood ruling, I would also expect the legislature to do what it can to help the unions circumvent the effects of Janus.
In an article in this month's Atlantic Monthly called "The Confirmation Wars Are Over, Partisanship won out -- and the contagion is spreading," Benjamin Wittes writes, "While America has seen ideological contest over the courts at various times in its past, we have never before in our history faced a reality in which our normative expectation was that the opposition party would oppose the average Supreme Court appointment of a nominee whose formal qualifications were not seriously in question -- and block that nominee if humanly possible. We have never faced a situation in which our working assumption was that Democrats would oppose all Republican nominees and the Republicans would oppose all Democratic nominees and that we would thus create partisan camps on every appellate court in the country."
Is the author right? Have we lost something in the modern growing partisanship of the Supreme Court and other courts? How worried are you and other legal scholars about this trend?
Although there have been partisan divides over Supreme Court nominations in the past, I do agree that the situation has never before been as partisan as it is today. Even as recently as the late 20th century, there were enough statesmen and women in the Senate to constrain the extreme partisans among them. Our own Mark Hatfield was among them. But national politics today is almost entirely about gaining and holding power, and then governing on the principle that the winner takes all. We saw it with President Obama who never got more than 53 percent of the vote and we are seeing it with President Trump who got barely 48 percent of the vote. What about the other half of the population? Being in a near 50 percent minority in a presidential election does not mean that your views count for nothing until you can be on the winning side. But that is where we are with respect to judicial nominations and federal legislation in general.
This partisanship in the nomination and confirmation process has led to a perception on the part of the public and the press that the courts are partisan in their decision-making. While I think that perception has some justification, I also believe that most federal judges most of the time do not act in a partisan way. On the Supreme Court there are numerous unanimous decisions, and divisions on the court are not always along partisan lines. But on matters of political and social controversy, it is all too predictable how the justices of the Supreme Court will rule. The same is true on the appellate courts. I believe this is a serious problem that will only be corrected when the public and the press stop celebrating and lamenting judicial partisanship and start demanding that the courts put politics aside and stick to the law.
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