DOCSLIB.ORG

Does Congress Find Facts Or Construct Them - the Ascendance of Politics Over Reliability, Perfected in Gonzales V

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Does Congress Find Facts Or Construct Them - the Ascendance of Politics Over Reliability, Perfected in Gonzales V Cleveland State Law Review Volume 56 Issue 2 Article 5 2008 Does Congress Find Facts or Construct Them - The Ascendance of Politics over Reliability, Perfected in Gonzales v. Carhart Elizabeth De Coux Florida Coastal School of Law Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Law and Politics Commons, and the Legislation Commons How does access to this work benefit ou?y Let us know! Recommended Citation Elizabeth De Coux, Does Congress Find Facts or Construct Them - The Ascendance of Politics over Reliability, Perfected in Gonzales v. Carhart, 56 Clev. St. L. Rev. 319 (2008) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss2/5 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. DOES CONGRESS FIND FACTS OR CONSTRUCT THEM? THE ASCENDANCE OF POLITICS OVER RELIABILITY, PERFECTED IN GONZALES V. CARHART ∗ ELIZABETH DECOUX I. CONGRESSIONAL COMMITTEES AND THEIR HEARINGS AS TOOLS USED IN THE LEGISLATIVE PROCESS .............................................................................. 326 A. The Early Development of the Congressional Committee.................................................................... 326 B. Congress’s Authority with Regard to Committees....... 328 C. A Hearing in the Aftermath of the Lincoln Assassination as an Early Indication, in a High-Profile Matter, of Congress’s Concern with the Reliability of Evidence ................................... 332 II. MODERN CONGRESSIONAL HEARINGS AS INDICATORS OF THE DEGREE TO WHICH CONGRESS VALUES RELIABILITY ........................................................................ 336 A. Evidence Rulings in the Age of Televised Hearings ...................................................................... 336 B. The Rules of Congress Say Little About Evidence....... 337 C. What Impeachment Trials in the Senate Reveal about Legislators’ Emphasis on Reliable Evidence .... 338 1. Reliability in the First Impeachment Trial Hearing in More than Half a Century: The Claiborne Impeachment ................................ 340 2. Reliability in an Impeachment in Which Senators Vote Without Being Present When the Evidence Is Received: The Case of Walter Nixon .................................................................... 341 3. Reliability in an Impeachment Where the Senate Convicts After a Jury Acquits: The Hastings Impeachment ......................................... 344 ∗Assistant Professor of Law, Florida Coastal School of Law, J.D., Mississippi College School of Law 319 Published by EngagedScholarship@CSU, 2008 1 320 CLEVELAND STATE LAW REVIEW [Vol. 56:319 4. Reliability in an Impeachment in Which the Senate as a Whole Makes the Decision, but Does Not Hear Any Witnesses in Person: The Clinton Impeachment .................................... 344 D. High Stakes and Low Blows: The Senate Judiciary Committee’s Hearing on Sexual Harassment Charges Against United States Supreme Court Nominee Clarence Thomas ........................................................ 348 E. Oversight and Investigation by a House Subcommittee: Responding to Hurricane Katrina ............................... 361 III. THE PARTIAL-BIRTH ABORTION PROHIBITION ACT OF 2003: CONGRESS MAKES FINDINGS BEFORE HEARING EVIDENCE; THE COURT EMPLOYS THOSE FINDINGS, THOUGH ACKNOWLEDGING THEY ARE INCORRECT................................................................... 362 A. Erroneous Legislative Findings Underlying the Partial-Birth Abortion Prohibition Act of 2003 .......... 362 B. Judicial Review of Congressional Findings, Erroneous and Otherwise............................................ 364 C. The Court Incorporates Congress’s Erroneous Findings into Its Analysis in Gonzales v. Carhart ....... 370 IV. CARHART II: A RULING IN SEARCH OF A RATIONALE? ........ 374 A. Searching for Answers in the Text of the Court’s Opinion........................................................... 374 B. Searching for Answers in the Subtext .......................... 377 V. CONGRESS SHOULD EMPLOY NEUTRAL FACT-FINDERS OR ADOPT AT LEAST RUDIMENTARY EVIDENCE STANDARDS ......................................................................... 379 A. Evidentiary Rigor as Institutional Competency........... 379 B. Models of Non-Partisan Fact-Finding ........................ 381 VI. CONCLUSION........................................................................ 385 On July 7, 1988, Marine Lieutenant Colonel Oliver North,1 his uniform crisp and 1North’s “spit and polish” image had a positive influence on the public’s perception of him. LAWRENCE E. WALSH, FIREWALL: THE IRAN-CONTRA CONSPIRACY AND COVER-UP 133 (1997) (referring to a tidal wave of public support for North). Otto Friedrich, “The Roughest Year” Scandal, War, Crash, Plague . and Who’s in Charge, TIME MAG., January 4, 1988, at 32 (referring to the public support for North). A native of San Antonio, Texas, an altar boy, and a graduate of the U.S. Naval Academy, North saw combat in Vietnam, service for which he was awarded two Purple Hearts, the Bronze Medal and the Silver Star. Richard Stengel et https://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss2/5 2 2008] DOES CONGRESS FIND FACTS OR CONSTRUCT THEM? 321 his medals gleaming, stood ramrod straight before a panel of lawmakers and a bank of television cameras.2 Raising his right hand with the sharpness usually reserved for a salute,3 he swore to tell the truth. North was testifying before the congressional committee4 investigating a matter popularly referred to as the Iran-Contra Affair: the U.S. government’s covert sale of arms to Iran and diversion of the monetary proceeds to Nicaraguan rebels known as Contras.5 North, a National Security al., True Belief Unhampered by Doubt, From Small-town Boy to Shadow Secretary of State, Oliver North Did Not Know When to Stop, TIME MAG., July 13, 1987, at 28. When Marine Pvt. Randy Herrod, who had served under North, was accused of participating in the massacre of sixteen women and children during a search-and-destroy mission in the Vietnamese village Son Thang, North testified in his defense, crediting Herrod with saving his life in battle; Herrod was acquitted. Michael D. Sallah & Mitch Weiss, Experts: Earlier Tiger Force Probe Could Have Averted My Lai Carnage, TOLEDO BLADE, Oct. 19, 2003, at 1, available at http://www.toledoblade.com/apps/pbcs.dll/article?AID=/99999999/SRTIGERFORCE/110190 166. After North’s Congressional testimony, North faced a criminal trial on three charges: accepting an illegal gratuity; aiding and abetting in the obstruction of a congressional inquiry; and destruction of documents. United States v. North, 920 F.2d 940, 942 (D.C. Cir. 1990). He was convicted on all charges, but the convictions were later overturned because of the likelihood that North’s widely publicized, immunized testimony before Congress had influenced the testimony of witnesses at his criminal trial. Id. On remand, the independent counsel who had prosecuted North moved to dismiss all charges because he believed it was impossible to establish that witnesses had not been influenced by North’s congressional testimony; the trial court granted the motion. John W. Mashek, Charges on North Dismissed, Prosecutor Can’t Meet Requirement, BOSTON GLOBE, Sept. 17, 1991, at 1. In 1994, North ran unsuccessfully for the U.S. Senate. Nancy Mathis, Election ’94: Nation/Republicans gain Senate control/But Democrat Robb holds off Oliver North in Virginia, HOUSTON CHRON., Nov. 9, 1994, at A42. 2 Sally Jacobs, North the Family Man Faces BC Crowds, Pro and Con, BOSTON GLOBE, Nov. 3, 1988, at 31. 3Associated Press, Photo: Lt. Col. Oliver North shown taking the oath before the Iran- Contra committee in Washington on July 7, 1987, reprinted in Dawn Ceol, High Court Gives North Big Victory, WASHINGTON TIMES, May 29, 1991, at A1; also available at http://images.google.com/imgres?imgurl=http://www.washingtonpost.com/wp- srv/politics/images/daily/north_070787ap.jpg&imgrefurl=http://www.washingtonpost.com/wp -srv/politics/special/clinton/frenzy/iran.htm&h=152&w=200&sz=16&hl=en&start=11&um=1 &tbnid=VETlLNOlGGp5pM:&tbnh=79&tbnw=104&prev=/images%3Fq%3Doliver%2Bnort h%2Bap%26svnum%3D10%26um%3D1%26hl%3Den%26rls%3DTSHA,TSHA:2005-52,T SHA:en. 4The Senate and the House each had a committee investigating the matter, so the title of the proceeding is Iran-Contra Investigation: Joint Hearings Before the S. Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition and the H. Select Comm. to Investigate Covert Arms Transactions with Iran, 100th Cong. pt. I (1987) [hereinafter Hearings Iran] (testimony of Oliver L. North). 5United States v. North, 698 F. Supp. 322, 324 (D.D.C. 1998) (recounting North’s statements that the money raised by the sale of missiles to Iran was used to support the contras); United States v. North, 920 F.2d 940 (D.C. Cir. 1990) (vacating some of North’s convictions and reversing other); Abraham D. Sofaer, Iran-Contra: Ethical Conduct and Public Policy, 40 HOUS. L. REV. 1081, 1084 ( 2003) (“The first sale of arms to Iran during the Reagan Administration took place on August 20, 1985 . .”). Published by EngagedScholarship@CSU, 2008 3 322 CLEVELAND STATE LAW REVIEW [Vol. 56:319 Council aide in the administration of President Ronald Reagan,6 was accused of coordinating this secret
Load more

Recommended publications
  • By Patrick James Barry a Dissertation Submitted in Partial Fulfillment of The
    CONFIRMATION BIAS: STAGED STORYTELLING IN SUPREME COURT CONFIRMATION HEARINGS by Patrick James Barry A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (English Language and Literature) in the University of Michigan 2015 Doctoral Committee: Professor Enoch Brater, Chair Associate Professor Martha Jones Professor Sidonie Smith Emeritus Professor James Boyd White TABLE OF CONTENTS CHAPTER 1 SITES OF THEATRICALITY 1 CHAPTER 2 SITES OF STORYTELLING 32 CHAPTER 3 THE TAUNTING OF AMERICA: THE SUPREME COURT CONFIRMATION HEARING OF ROBERT BORK 55 CHAPTER 4 POISON IN THE EAR: THE SUPREME COURT CONFIRMATION HEARING OF CLARENCE THOMAS 82 CHAPTER 5 THE WISE LATINA: THE SUPREME COURT CONFIRMATION HEARING OF SONIA SOTOMAYOR 112 CHAPTER 6 CONCLUSION: CONFIRMATION CRITIQUE 141 WORK CITED 166 ii CHAPTER 1 SITES OF THEATRICALITY The theater is a place where a nation thinks in public in front of itself. --Martin Esslin, An Anatomy of Drama (1977)1 The Supreme Court confirmation process—once a largely behind-the-scenes affair—has lately moved front-and-center onto the public stage. --Laurence Tribe, Advice and Consent (1992)2 I. In 1975 Milner Ball, then a law professor at the University of Georgia, published an article in the Stanford Law Review called “The Play’s the Thing: An Unscientific Reflection on Trials Under the Rubric of Theater.” In it, Ball argued that by looking at the actions that take place in a courtroom as a “type of theater,” we might better understand the nature of these actions and “thereby make a small contribution to an understanding of the role of law in our society.”3 At the time, Ball’s view that courtroom action had an important “theatrical quality”4 was a minority position, even a 1 Esslin, Martin.
    [Show full text]
  • Headshrinkers Manmunchers Moneygrubbers Nuts & Sluts
    Cornell Law Review Volume 80 Article 18 Issue 4 May 1995 Headshrinkers Manmunchers Moneygrubbers Nuts & Sluts: Reexamining Compelled Mental Examinations in Sexual Harassment Actions Under the Civil Rights Act of 1991 Kent D. Streseman Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Kent D. Streseman, Headshrinkers Manmunchers Moneygrubbers Nuts & Sluts: Reexamining Compelled Mental Examinations in Sexual Harassment Actions Under the Civil Rights Act of 1991, 80 Cornell L. Rev. 1268 (1995) Available at: http://scholarship.law.cornell.edu/clr/vol80/iss4/18 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. NOTE HEADSHRINKERS, MANMUNCHERS, MONEYGRUBBERS, NUTS & SLUTS: REEXAMINING COMPELLED MENTAL EXAMINATIONS IN SEXUAL HARASSMENT ACTIONS UNDER THE CIVIL RIGHTS ACT OF 1991 Introduction ................................................... 1269 I. The Evolution of the Sexual Harassment Cause of Action .................................................. 1276 A. Sexual Harassment Under Tort Law ................ 1278 B. Sexual Harassment as Sex Discrimination Under Title VII ............................................ 1281 1. Quid Pro Quo Harassment........................ 1282 2. Hostile Environment Harassment................... 1283 3. A Matter of Perspective: The Evolution of the Standardfor Proving a Hostile Work Environment... 1285 a. Split Circuits: The Unreasonableness + Actual Injury Test v. the Purely Objective Standard ................................... 1286 b. The Death of the Actual Injury Test: Harris v. Forklift Systems, Inc ...................... 1288 4. The 1991 Civil Rights Act ........................ 1289 II. Judicial Treatment of Motions to Compel Mental Examinations ..........................................
    [Show full text]
  • The Evolution of Political Rhetoric: the Year in C-SPAN Archives Research
    The Year in C-SPAN Archives Research Volume 6 Article 1 12-15-2020 The Evolution of Political Rhetoric: The Year in C-SPAN Archives Research Robert X. Browning Purdue University, [email protected] Follow this and additional works at: https://docs.lib.purdue.edu/ccse Recommended Citation Browning, Robert X. (2020) "The Evolution of Political Rhetoric: The Year in C-SPAN Archives Research," The Year in C-SPAN Archives Research: Vol. 6 Article 1. Available at: https://docs.lib.purdue.edu/ccse/vol6/iss1/1 This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. The Evolution of Political Rhetoric: The Year in C-SPAN Archives Research Cover Page Footnote To purchase a hard copy of this publication, visit: http://www.thepress.purdue.edu/titles/format/ 9781612496214 This article is available in The Year in C-SPAN Archives Research: https://docs.lib.purdue.edu/ccse/vol6/iss1/1 THE EVOLUTION OF POLITICAL RHETORIC THE YEAR IN C-SPAN ARCHIVES RESEARCH Robert X. Browning, Series Editor The C-SPAN Archives, located adjacent to Purdue University, is the home of the online C-SPAN Video Library, which has copied all of C-SPAN’s television content since 1987. Extensive indexing, captioning, and other enhanced online features provide researchers, policy analysts, students, teachers, and public offi- cials with an unparalleled chronological and internally cross-referenced record for deeper study. The Year in C-SPAN Archives Research presents the finest interdisciplinary research utilizing tools of the C-SPAN Video Library.
    [Show full text]
  • Linda Gregerson CSST Working CRSO Working Paper
    "Powers of Desire: Specularity and the Subject of the Tudor State" Linda Gregerson CSST Working CRSO Working Paper #?9 Paper #4?.5 May 1992 1 Linda Gregerson Department of English University of Michigan AM Arbor MI 48109 Powers of Desire: Specularity and the Subject of the Tudor State The subject of the subject has left us, of late, in something of a muddle. Post- modernism has taken the post-enlightenment subject for a standing joke. The "thinking subject," the subject that begins in the mind's consciousness of its own motions and becomes the locus of all cognitive action and the measure of all truth, the subject launched by Cartesian philosophy and reified by Romanticism, this universal and universalizing subject now strikes us as provincial and platitudinous, if too coercive in its workings to be quaint. We have come to regard the "historical subject" as a concept of superior political and explanatory power, and we argue about essence and constructedness, and we try in the midst of our arguments to leave a space for agency, which is to say for narrative--for affect and effect, for memory and change. In the midst of capitalism's late decline and ironic "triumph," in the midst of theoreti- cal and political developments that sharply dispute the supposed autonomy and coherence of the bourgeois subject, that subject exhibits remarkable durability as a default cognitive and political device. Stories organized and authorized by individual experience (biographical, psychodynamic, parabolic or exemplary) still seem to us (late capitalism's uneasy survivors) to possess uniquely satisfying explanatory capacities.
    [Show full text]
  • The Thomas Hearings: Watching Ourselves
    University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 1992 The Thomas Hearings: Watching Ourselves Robert F. Nagel University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Judges Commons, Labor and Employment Law Commons, Law and Gender Commons, Law and Politics Commons, Legal Ethics and Professional Responsibility Commons, and the Supreme Court of the United States Commons Citation Information Robert F. Nagel, The Thomas Hearings: Watching Ourselves, 63 U. COLO. L. REV. 945 (1992), available at https://scholar.law.colorado.edu/articles/871. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 63 U. Colo. L. Rev. 945 1992 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Aug 8 13:47:44 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. ESSAY THE THOMAS HEARINGS: WATCHING OURSELVESt ROBERT F.
    [Show full text]
  • Anita Hill Meets Godzilla: Confessions of a Horror Movie Fan Wendy B
    Mississippi College School of Law MC Law Digital Commons Journal Articles Faculty Publications 1996 Anita Hill Meets Godzilla: Confessions of a Horror Movie Fan Wendy B. Scott Mississippi College School of Law, [email protected] Follow this and additional works at: https://dc.law.mc.edu/faculty-journals Part of the Civil Rights and Discrimination Commons, Law and Gender Commons, and the Sexuality and the Law Commons Recommended Citation Wendy B. Scott, 70 Tulane L. Rev. 1921 (1996). This Article is brought to you for free and open access by the Faculty Publications at MC Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of MC Law Digital Commons. For more information, please contact [email protected]. Anita Hill Meets Godzilla: Confessions of a Horror Movie Fan Wendy Brown-Scott" first a woman should be a woman first, but if she's black, and a woman that's special, that's real special.! PROLOGUE The cases and events discussed in this Essay involve African- American women who have confronted oppression in the civil and criminal courts, and other arenas, in both celebrated and unsung victories: victories not only for Black women, but for women and men of all hues who seek social justice. I will use these cases and events to illustrate the relationship between stereotypes and myths, born during the antebellum and Jim Crow era, and contemporary manifestations of sexual harassment and other forms of sex-based * Associate Professor of Law, Tulane Law School. B.A., Harvard University; J.D., New York University Law School.
    [Show full text]
  • Telling the Victim's Story
    2 TXJWL 277 FOR EDUCATIONAL USE ONLY Page 1 2 Tex. J. Women & L. 277 (Cite as: 2 Tex. J. Women & L. 277) Texas Journal of Women and the Law Spring, 1993 1992 Symposium on New Perspectives on Women and Violence ­ Part II *277 TELLING THE VICTIM'S STORY Mary I. Coombs [FNa1] Copyright © 1993 by the Texas Journal of Women and the Law; Mary I. Coombs A persistent theme in feminist work has been the complexity of sex: both a pleasure and a danger for women. [FN1] This Article involves a related complexity: the value and the danger of women talking about their sexual violations. Clearly, women need to come forward with their claims of rape and sexual harassment and assert these claims in the courtroom. Much valuable work of the feminist community has produced the doctrinal, evidentiary, and institutional changes that encourage women to report cases of sexual violation and to seek legal redress. I do not wish to undermine or impede those efforts. There is, however, a sociocultural cost to presenting claims of sexual violation in courtrooms or similar forums, such as the Senate Judiciary Committee hearing room, even when the woman and her advocates win. In this Article, I want to explore those costs and consider how to reduce them by making doctrinal changes, by exploding cultural myths, and, particularly, by encouraging women to share their stories of sexual violation in less risky environments. Sexual violation actually occurs, and its victims experience it as such in a wide variety of circumstances. The legal system, however, will not acknowledge many of these instances.
    [Show full text]
  • The Return of the Judicial Nomination Procedure, Part VI
    Journal of Civil Rights and Economic Development Volume 7 Issue 1 Volume 7, Fall 1991, Issue 1 Article 7 Teddy and Howie are Back: The Return of the Judicial Nomination Procedure, Part VI Ann H. Coulter Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. TEDDY AND HOWIE ARE BACK: THE RETURN OF THE JUDICIAL NOMINATION PROCEDURE, PART VI ANN H. COULTER* Although the past forty or so years of judicial tyranny must have given pause to the most devoted constitutional cultist, the nation is at last on the verge of reaping the benefits of its brilliant Constitution. For a long while, the Constitution's division of pow- ers and its checks and balances seemed to have been outwitted by the body charged with deciding cases under that document. Not only was the Supreme Court rapaciously seizing powers that prop- erly resided with other branches of government and, most often, with the states, but also it seemed impervious to the Senate's power of impeachment under the Constitution, despite public in- dignation reaching record highs.1 But despite the Justices' manifest understanding of their pow- ers, they are not, after all, immortal. Where the threat of im- peachment was ineffective, replacement is not.
    [Show full text]
  • Weekend in the Woods President's Column
    SALT Volume 1992, Issue 2 Society of American Law Teachers March 1992 WEEKEND IN THE WOODS PRESIDENT'S COLUMN Fifth Annual Cover Conference HARVARD: Four More White Men Some 130 students, law professors and practitioners gathered at the Sargent Camp in On February 28th, Harvard Law School in- the New Hampshire woods for the fifth annual vited four white men to become tenured mem- Robert Cover Public Interest Retreat over the bers of the faculty. Two of these four white men weekend of March 6-8. As the vans arrived are currently visiting at Harvard, and a third, from Logan Airport, we began to build our who visited in the fall, was considered while he community for the weekend. After a welcome was still in residence. In the past two years, Har- by USC Professor Judith Resnik, a group of re- vard refused to even consider tenured appoint- turning conference attendees - public interest ments for three visitors of color, citing a firm rule practitioners who had previously attended as against considering visitors for faculty positions law students - introduced themselves and during the year of their visit. They have made no talked about what the Cover conference had offers to people of color or to women for many meant to them. BU Law Professor Avi Soifer years. The faculty was asked to vote for the four and Yale Professor Steve Wizner then intro- as a package, without regard to assessment of duced themselves and related the history of the the qualification of particular individuals. conference. Were this the Acme Widget Company, The Cover conference provides a unique these facts would constitute a strong prima facie opportunity for different groupings - practi- case of race and gender discrimination.
    [Show full text]
  • Treatment of Sex and Race in the Hill-Thomas Hearings*
    THE LEGACY OF DOUBT: TREATMENT OF SEX AND RACE IN THE HILL-THOMAS HEARINGS* ADRIENNE D. DAvIs** & STEPHANIE M. WILDMAN*** Justice Clarence Thomas has been sworn in as the 106th Supreme Court Justice. He is the second African-American Justice. After weeks of televised confirmation hearings, extensive public debate among citi- zens and in the media, and the final Senate vote, questions still remain whether justice has been served. There has been massive broadcast and print coverage of these events, which captured the country's attention.1 * © 1992 Adrienne D. Davis and Stephanie Wildman. Although recently changed in THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (15th ed. 1991), conventional legal scholarship has used last names of authors in standard citation form. Fighting this convention, Carolyn Heilbrun and Judith Resnik observed that the use of only last names makes gender invisible. Carolyn Heilbrun & Judith Resnik, Convergences Law, Literature, andFeminism, 99 YALE L.J. 1913, 1913 (1990). What full names still fail to reveal, however, is that Adrienne Davis is African American and that Stephanie Wildman is Jewish and white. Race is not irrelevant in American culture, any more than gender is. We thank University of San Francisco Law Librarians Lee Ryan and Marian Shostrom, and Tracy D. Swann, U.S.F. Class of 1993, for research assistance. We also thank e. christi cunningham, Trina Grillo, Anthony K. Jones, Christine Littleton, Steven Shatz, and Michael Tobriner for thoughtful comments on earlier drafts. ** Assistant Professor of Law, University of San Francisco School of Law; J.D. Yale Law School, 1991; B.A. Yale University, 1987.
    [Show full text]
  • Does Congress Find Facts Or Construct Them - the Ascendance of Politics Over Reliability, Perfected in Gonzales V
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Cleveland-Marshall College of Law Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 2008 Does Congress Find Facts or Construct Them - The Ascendance of Politics over Reliability, Perfected in Gonzales v. Carhart Elizabeth De Coux Florida Coastal School of Law Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Law and Politics Commons, and the Legislation Commons How does access to this work benefit oy u? Let us know! Recommended Citation Elizabeth De Coux, Does Congress Find Facts or Construct Them - The Ascendance of Politics over Reliability, Perfected in Gonzales v. Carhart, 56 Clev. St. L. Rev. 319 (2008) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss2/5 This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. DOES CONGRESS FIND FACTS OR CONSTRUCT THEM? THE ASCENDANCE OF POLITICS OVER RELIABILITY, PERFECTED IN GONZALES V. CARHART ∗ ELIZABETH DECOUX I. CONGRESSIONAL COMMITTEES AND THEIR HEARINGS AS TOOLS USED IN THE LEGISLATIVE PROCESS .............................................................................. 326 A. The Early Development of the Congressional Committee.................................................................... 326 B. Congress’s Authority with Regard to Committees....... 328 C. A Hearing in the Aftermath of the Lincoln Assassination as an Early Indication, in a High-Profile Matter, of Congress’s Concern with the Reliability of Evidence ................................... 332 II.
    [Show full text]