Saturday, April 30, 2005

Debating Affirmative Action in Law Schools: Writing in Slate, Emily Bazelon contends that the critiques of Richard Sander's Stanford Law Review article on affirmative action "pounce" on the argument, "destroy" it, and "throw" so many "punches" that the debate became a "bloodletting" that left Sander speechless. I haven't followed the back-and-forth very closely — some of Sander's assumptions seemed a bit off to me when I first skimmed his piece, but this is hardly my field — but I'm wondering if any VC readers have read the critiques and agree with Bazelon's assessment. I have enabled comments; links to the various responses are availible from Slate.

Friday, April 29, 2005

The Weird Politics Before the Rehnquist Retirement: Is it just me, or has the news relating to the courts and the legal system been a bit weird recently? The big stories in the past few weeks have been filibusters in the Senate, Justice Sunday, the alleged Constitution-in-Exile movement, and Tom DeLay's criticism of Justice Kennedy. All of these stories have something in common, I think. They are mostly proxies for the political struggle to confirm the Bush Administration's choice to replace the ailing Chief Justice Rehnquist.

  Of course, much of this is under the radar screen. The Chief hasn't even announced his retirement yet, so it seems a bit strange to be waging the battle for his replacement. But the battle clearly has begun: more and more news stories about the law and the courts are being triggered by one side or the other jockeying for political advantage. The goal for both sides seems to be to create a political environment designed to influence the swing votes in the Senate. When Rehnquist retires, Bush's nominee to replace him will face a tough time in the Senate. Lots of people are figuring that anything they can to do to fire up the base or shift the political environment to help their side might just make the difference.

  Of course, it's hard to do this on the merits. We don't even know who the nominee will be, so we don't yet have a human story to tell and a record to scrutinize. And most people don't know or care about the details of what the courts do, so an advertising campaign on Eleventh Amendment law or the original meaning of the Fourteenth Amendment seems unlikely to shift the political ground. In this environment, demonizing the worldview of your opponents is key. The other side has to be more than just wrong; the other side needs to be sneaky, suspect, and downright dangerous.

  The most popular strategy on both sides seems to be to take some possible negative effect of your opponent's conduct or position, imagine a very extreme position of it, and then accuse your opponent of intentionally trying to bring that about. You end up with a very weird debate: if you believe all the accusations, you would think that the key question is whether the anti-religious bigots in the Senate will confirm nominees who want to restore the Constitution-in-Exile. After awhile, you can't help but think that no one on either side fully believes what they are so emphatically saying.

  What's the answer? I don't think there is one, except perhaps to wait it out. The political stakes are high, and political actors will do what they think they need to do to help out their side. In the meantime, if you're watching TV and you hear someone say something about the courts that you think is simply absurd, you can probably chalk it up to the weird politics before the Rehnquist retirement.

  Any thoughts? I have enabled comments. As always, civil and respectful comments only.
Wilentz Plays with Numbers:

In today's NYT, Princeton's Sean Wilentz has a letter (second item) responding to Bob Dole's op-ed on the filibuster of President Bush's judicial nominees. Republicans obstruction of Clinton's nominees "was much more 'extraordinary' than anything since," Wilentz claims. His evidence is the rate at which appellate nominees were confirmed.

between 1995, when the Republicans regained control of the Senate, and 2001, the Republican majority blocked 35 percent of President Bill Clinton's nominees to the federal appeals bench without giving them an up-or-down vote. Many did not even receive a hearing.

By contrast, President Bush has, since 2001, nominated 34 candidates to the federal circuit courts, 10 of whom the Democrats have blocked with filibusters - or just under 30 percent.

Wilentz is not comparing apples with apples here. He's comparing the rate of appellate confirmations under Clinton during a time period when there was a Senate controlled by the opposition party with the rate of appellate confirmations under Bush during a time period when the opposition party was only in control for a short time. To do this Wilentz omits data from the first two years of Clinton's Presidency when Democrats controlled the Senate. Why does he present this selective data? Perhaps because it helps him make his argument. If one looks at the overall confirmation rate of appellate nominees, his claim completly falls apart.
Bush 41 - 78 percent confirmed

Clinton - 74 percent confirmed

Bush 43 - 67 percent confirmed
President Bush has the lowest appellate nominee confirmation rate of the last three Presidents. This is even more remarkable because, of the three, President Bush has had the Senate under the control of the opposition party for the least amount of time. Democrats have controlled the Senate for less than half of Bush's Presidency. Clinton got more of his appellate nominees confirmed, even though the Senate was under opposition control for 75 percent of his Presidency.

UPDATE: On Mark Kleiman's blog, Jonathan Zasloff accuses me of being a "crybaby" and then proceeds to misrepresent this post. Daly Thoughts has a more complete response to Zasloff's post here. I'll defer to Daly's take on the numbers, and would add a few points.

First, Zasloff says I complained about comparing Clinton's first term to Bush's first term. Not so. I complained about Wilentz' omitting the first two years of President Clinton's presidency in making a comparison with President Bush. Last I checked, the first two years of a presidency are part of the first term.

Second, Zasloff accuses me and others of "cheating" by including President Bush's nominations in the 109th Congress to inflate the numbers. Not so again. Every pending circuit court nominee was originally nominated in Bush's last term, so there already included in any term-to-term comparison, and Senate Democrats have threatened to block each and every one of them.

Third, in rehashing the 2000 election, Zasloff claims Bush "proceeded with his policy agenda as if the popular vote made no differnece." This may be true in some contexts, but judicial nominations is not one of them. When President Bush announced his first twelve appellate nominees, he took the unprecedented step of renominating a Clinton nominee whose confirmation had been held up by Republicans and nominated a Clinton-nominated district court jduge for elevation to an appeals court — even though the Senate was still in Republican hands and some Republicans opposed the move.

For a more comprehensive rundown of nomination and confirmation statistics, see Daly Thoughts post here. There's also more historical data in this CRS study. The historical data confirms a point I have made consistently about judicial nominations in my posts on the subject: The politicization and obstruction of the judicial nomination process began in the 1980s, and has gotten progressively worse since then.

SECOND UPDATE & CORRECTION: In my update, I erroneously suggested Bush renominated two of Clinton's blocked nominees. Bush actually renominated one -- Roger Gregory, blocked from confirmation on the Fourth Circuit by Senator Jesse Helms. Bush also nominated Judge Barrington Parker, a Clinton nominee to a federal district court, for elevation to the Second Circuit. The text above was edited to correct the error.

Parody and Copyright:

I'm delighted that Bill Patry, one of the leading copyright scholars in the nation — and the author of a treatise on fair use — has started The Patry Copyright Blog, which I'm sure will become a great source of news and opinion for people interested in copyright. The inaugural substantive post is particularly interesting — it's about parody, copyright, the political valence of parodies, and "Yiddish with Dick and Jane" (which Bill didn't much care for).

I don't think I entirely agree with Bill's analysis; in particular, I think the "compelled speech" argument for letting authors block copying is mistaken, for reasons I discussed at pp. 727-732 (PDF pages 31-36) of this article. But I still highly recommend the post.

Thursday, April 28, 2005

For Law Geeks Only:

So when you're citing a Supreme Court from the 1800s, when the reporters didn't include the date a case was decided but only the term (e.g., "October Term, 1878"), what do you use for a date?

You might go with the term year, though many of the cases will have been decided in the following year; and I wouldn't fault you for it. But while proofreading the second edition of my First Amendment textbook, I noticed that Reynolds v. United States -- the leading Mormon polygamy case -- was cited in one place as 1879 and in another as 1878, and I didn't want to maintain the inconsistency or to just guess which is right. A WESTLAW search revealed that 1273 articles cite it as 1878, and 432 articles as 1879, but 24 Supreme Court cases cite it as 1879, and only 4 as 1878. What should I, law geek that I am, do?

The answer is to look things up in Dates of Supreme Corut Decisions, United States Reports Volumes 2-107, August Term 1791-October Term 1882, prepared by Anne Ashmore of the Supreme Court law library. The answer: The case was handed down in early 1879.

The Guardian (U.K.)

has a sneak preview of Ariana Huffington's new blog. Thanks to Daniel Schmutter for the pointer.

Words To Live By:

From PG at De Novo: "UPDATE: Note to self -- always check Volokh first." Hear, hear!

Hollywood Communists:

Cathy Seipp has a very good column on this.

Minority Political Success Stories:

Here's the question for today: Who are now the highest-ranked, and who have been the highest-ranked

  1. Atheist or Agnostic, expressly self-described (it's not enough that the person have no known religious sensibilities; he has to have openly described himself as such, much as people of other religious groups often openly describe themselves as such)
  2. Baha'i
  3. Buddhists
  4. Hindus
  5. Muslims
  6. Sikhs
  7. Armenian-Americans
  8. Filipino-Americans
  9. Georgian-Americans (and I don't mean of the Jimmy Carter variety)
  10. Iranian-Americans
  11. Korean-Americans
  12. Thai-Americans
  13. and
  14. Vietnamese-Americans
in U.S. government positions, federal or state, appointed or elected. For our purposes, though, let's say that the rank of an office is generally inversely proportional to the number of people who hold that sort of office, so the President (1) beats U.S. Supreme Court Justices (9) who beat Cabinet officials (15) who beat Governors (50) who beat U.S. Senators (100) who beat state Supreme Court Justices (roughly 350, I think) who beat U.S. Representatives (435) and so on. On the other hand, I reserve the right to downgrade un-influential offices — there are fewer state Secretaries of State than state Supreme Court Justices, but I say the latter beat the former, and I'll brook no argument on that. Also, the list above was chosen rather arbitrarily (though one guiding principle was that I tried to choose relatively tough ones; Greek Orthodox and Mormons, for instance, are pretty easy).

I give a few answers that I think I know below; please post your own answers in Comments. (I won't alter my original answers, so please note that a commenter may have bettered them.) Each answer should (1) include the person's name and position, (2) in cases where there might be any controversy, proof, preferably a link to a site that confirms this, and (3) say whether he's the current highest or the all-time highest. Also, please check all previous comments, as well as my answers, to make sure that yours (4) isn't a duplicate (make sure to check my answers, hidden below, to see if yours duplicate them), and (5) hasn't been trumped by a clearly higher-ranked official that has already been named. More broadly, (6) please read the question and the rules carefully, and (7) please don't post arguments about why the rules are sound or unsound or how they should be amended.

UPDATE: A reader asks why I lump together atheists and agnostics. In theory, the two may be quite different, but my sense is that in practice people have such different definitions of the terms that "I am an agnostic" and "I am an atheist" don't really reliably distinguish the two.

FURTHER UPDATE: I'd like the comments to be a good and readable source of answers for readers, so I've deleted some comments that were erroneous, duplicative, nonresponsive, and the like. Don't take it personally . . . .

House Passes Abortion Bill: The House passed a bill yesterday that would make it a federal crime for any adult to transport an under-age girl across state lines to have an abortion without the consent of her parents. I haven't followed this bill and haven't read the Supreme Court's relevant cases in this area since law school, so I have a question for any VC readers who are experts in this area: Under existing Supreme Court precedent, is this bill constitutional? What are the key cases and arguments?

  I have enabled comments; descriptive legal analysis only, please.

  UPDATE: The bill text is avilable here.

  ANOTHER UPDATE: Several commenters decided that it would be cool to use the comment section to discuss the normative question of whether the Constitution should be read to include a right to privacy. I have deleted those comments. To be more clear this time, I am interested only in the question of whether the bill is consistent with existing constititutional law. (Sorry to be so uptight about that, but I think most VC readers are more interested in hearing from specialists about existing doctrine.)
Religious Test Clause:

I've gotten some e-mail arguing that Senators' objections to judges who have expressed strongly pro-life views violate the Religious Test Clause of article VI, clause 3 of the Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

I'm not an expert on the Religious Test Clause, and my quick research hasn't found much that's terribly dispositive about its original meaning. My sense is that it was primarily focused on laws or official government policies -- which had existed in England -- that required people to swear that they belonged (or didn't belong) to one or another religious group. The tests were oaths, hence the placement of the provision alongside the oath requirement. I'm not sure that the Clause was understood as extending further, for instance to religiously discriminatory appointment or confirmation decisions by particular officeholders; so if a President decides to nominate a Catholic to some post because he thinks it will help get him the Catholic vote, or even if a Senator just doesn't like Mormons or Jews and decides to vote against them, I'm not sure that there's a Religious Test Clause violation there. The action may well be reprehensible, but not, at least on these grounds, unconstitutional.

But even if I'm wrong and the Clause was or should be understood as barring all discrimination based on religion or on inherently theological beliefs (e.g., on whether the nominee believes in the Trinity), I think it can't properly be read as barring discrimination based on beliefs on political issues (at least ones that aren't inherently religious), such as abortion, capital punishment, war, and so on.

There are many arguments supporting this position, I think. First, such discrimination is a political test, not a religious test, even if a person's political beliefs happen to stem from religion. Second, saying that it's a religious test when a person's political beliefs happen to stem from religion would itself be facially discriminatory in favor of religious nominees. If potential nominee X opposes capital punishment on secular grounds, and Y opposes it on religious grounds, it seems to me that the President must be equally free to refuse to nominate them -- if he really wants appointees who support capital punishment -- rather than having a right to reject X but no right to reject Y.

But most importantly, consider: The Religious Test Clause applies to all officeholders, including executive ones. It was clearly meant to cover cabinet members, their subordinates, and other executive officeholders as well as judges. But beliefs on contested moral issues are an important and necessary part of the President's decisions about whom to appoint.

A President who strongly believes in enforcement of the death penalty would want to appoint an Attorney General and other high Justice Department officials who support the death penalty. If a potential appointee believes that the death penalty is morally murder, the President may quite properly refuse to appoint him. It's not enough that the candidate promises to enforce the laws fairly -- the President rightly wants zeal (even if, I hope, zeal tempered by caution) and not just grudging agreement to enforce the law. And such a decision by the President is proper, I think, whether the potential appointee's opposition to the death penalty stems from secular reasons or from religious ones.

Likewise, a President who is appointing Defense Department officials may well want to avoid people who are morally committed to pacifism; a President who is appointing officials that will administer a program that distributes contraceptives may well want to avoid those who are on the record as viewing contraception as immoral; and the list could go on. And the same goes for Senatorial decisions about whom to confirm.

It seems to me the same must apply equally to judges, who are no more and no less covered by the Religious Test Clause than executive branch officials. As I've said before, there are lots of arguments as to why Senators should generally defer to Presidential choices here, or why they shouldn't reject judges based on the judges' moral views. But the Religious Test Clause does not provide such an argument -- Senators are as entitled under the Religious Test Clause to scrutinize judges' moral views as a proxy for the judge's likely future legal decisions as Presidents are entitled to scrutinize prospective Attorney Generals' moral views as a proxy for the Attorney General's likely future policy decisions.

Finally, consider a hypothetical: Say that it turns out that a judicial nominee believes that women are morally inferior to men -- not just that they are biologically different in various ways, or even that society operates better when the law treats the sexes differently, but that women are unclean and less worthy of moral concern. Senators say that they'll refuse to confirm this candidate because of such views, since they're afraid that a judge with such views will interpret the law in ways that the senators think will be unjust. "No, you can't do that," says the nominee. "My views about women stem from my religious beliefs, so your rejecting me based on my views about women is a violation of the Religious Test Clause." Is he right? Do the Senators have a constitutional duty to ignore those views? Would the President have a similar constitutional duty to ignore the person's views when making a nomination decision in the first place?

Naturally, I do not believe that Catholic pro-life views are morally on par with the views of this hypothetical nominee. But surely the Religious Test Clause doesn't protect only morally sound religions and not morally reprehensible ones. (The whole point of the Clause was to treat religions equally, without legal judgment that one or another religion is reprehensible.) Either (1) considering a candidate's pro-life, anti-death-penalty, anti-war, and anti-woman views is equally permissible under the Clause, because it is a political test, not a religious test, or (2) it's equally impermissible, and Presidents and Senators must ignore a prospective judge's anti-woman views, a prospective Defense Department official's pacifist views, or a prospective Justice Department official's anti-death penalty views. I think the answer is pretty clearly #1.

IHS Offers Independent Study Guides:

One implication of the ideological imbalance of the modern academy is that students who are interested in classical liberal, libertarian, or conservative ideas must look outside their university for education. I was pleased to see that the Institute for Humane Studies at GMU is in the process of rolling out a series of "Independent Study Guides" for students in the Social Sciences and Humanities.

It was through IHS that I first came across Hayek and other classical liberal thinkers, as I was not exposed to free-market thinking when I was in college. The first unit IHS has provided is on Economics, and it heavily features on-line resources. Subsequent units will be on Political Science, Law, History, Literature, etc., and it looks like they are scheduled to premier once a month for the foreseeable future.

They also have a short, but essential bibliography.

ISI also publishes a series of books on its Guides to the Major Disciplines.

Wednesday, April 27, 2005

Blogging and Exams:

As I was updating the post below, I realized that it would have made a great short problem for my Free Speech Law exam -- an exam that I need to write by tomorrow morning, and on which I'm still suffering a little bit of writer's block. But of course it was too late; I'd already blogged half the answer, and some of my students may well be reading my blog. Rats!

Jokes About Killing the President:

Drudge reports:

Government officials are reviewing a skit which aired on [Air America] Monday evening . . . .

The announcer: "A spoiled child is telling us our Social Security isn't safe anymore, so he is going to fix it for us. Well, here's your answer, you ungrateful whelp: [audio sound of 4 gunshots being fired.] Just try it, you little bastard. [audio of gun being cocked]."

The audio production at the center of the controversy aired during opening minutes of The Randi Rhodes Show.

"What is with all the killing?" Rhodes said, laughing, after the clip aired.

"Even joking about shooting the president is a crime, let alone doing it on national radio . . . we are taking this very seriously," a government source explained. . . .

A brief First Amendment analysis: Joking about shooting the President certainly isn't a crime as such; threatening to shoot the President is. Threats (whether against the President or not) are indeed constitutionally unprotected, but to be a punishable threats, a statement must at least be understood by a reasonable listener as a true threat, rather than just hyperbole (or humor). Here's an excerpt from the leading case, Watts v. United States (1969):

[D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

[P]etitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President....

We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"].... The language of the political arena ... is often vituperative, abusive, and inexact. [Watts'] only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise....

My sense is that the same applies here; and while the Secret Service does need to investigate all such statements, out of an abundance of caution, the speakers can't be prosecuted given the context.

The speakers may also have another defense: Virginia v. Black (2003) also held that a statement can't be a punishable threat unless it's made "with the intent of placing the victim in fear of bodily harm or death." Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression.

Before Black, there had been a lot of debate about whether such an intention is required, or whether negligence on the speaker's part is enough. (Under the negligence test, it's enough that a reasonable speaker would have recognized that a reasonable listener would see the statement as threatening, even if that wasn't the speaker's purpose. This is something of an oversimplification of the lower court caselaw, but it's close enough for our purposes, I think.) Oddly enough, the Supreme Court didn't discuss this debate, or explain why it was taking one side of it. Nonetheless, the Court did announce the likely-understanding-plus-intent requirement, and a plurality later kept stressing the speaker's intent as an important part of the analysis. So I think the Air America speakers are probably protected from legal punishment on those grounds, too (though of course this assumes that the speakers weren't intending to put the President or the Secret Service in fear, and that reasonable listeners would indeed understand the statement as a joke).

This may leave some people with the question: What about all those signs in airports saying that even joking about bombs is a crime? I can't tell you for sure whether, following Black, someone can be prosecuted for his joke when (1) he doesn't intend to threaten anyone with the joke but (2) the joke is understandably interpreted as possibly serious. Perhaps courts would draw some distinction based on the joke's likely lack of political content, and the joke's potentially highly disruptive effects (the area may have to be closed down while the potentially bomb-filled luggage is isolated and then destroyed, and so on). But the speaker would have a decent defense based on Black, I think. And in any event, the Air America statement — a statement said about the President in a political context — would probably be protected by Watts, Black, or both.

Kudos to GMU Econ Department:

Nice column in the Baltimore Sun today praising the great bloggers in the GMU Econ Department, including Cafe Hayek and Marginal Revolution.

Top 10 Songs by Relatively Obscure Artists:

I was driving to work today and heard the great old song "Dancin' in the Moonlight" by the band King Harvest (had to look that up on the Internet). Which got me to thinking--what are the 10 best songs by relatively obscure bands? I'm looking for the tunes that have slipped through the cracks in my cd collection--songs that are fun, not really one-hit wonders but are still fun to listen to after many years.

Here's my partial list, in no particular order (yeah, I know some of them are kind of corny): 1. "Dancin' in the Moonlight" by King Harvest

2. "Brandy (You're a Fine Girl)" by Looking Glass

3. "Stuck in the Middle with You" by Stealers Wheel

4. "Go All the Way" by The Raspberries

5. "Sunshine" by Jonathan Edwards

6. "Green-Eyed Lady" by Sugarloaf

I'm still trying to decide whether "Kung Fu Fighting" by Carl Douglas makes the cut.

Comments enabled.


Wow--what a great list of suggestions! Here's my completely arbitrary final 4 rounding out the top 10 list:

7. "One Toke Over the Line," by Brewer & Shipley

8. "Ride Captain Ride," by Blues Image

9. "Incense & Peppermints," by Strawberry Alarm Clock

10. "Still the One" by Orleans

Honrable mentions:

Spirit in the Sky

Lady Marmalade

Build Me Up Buttercup

Stagger Lee

"Love the One Your With" (great song, but Stephen Stills not quite obscure enough, i.e., I didn't have to look up who sand the song)

As good as "Kung Fu Fighting" is, I'm not sure its quite up to par with the others.

Credit/Debt Recovery:

I've been checking out this blog off-and-on for awhile now, and it has some useful and interesting stuff on credit industry issues. Here's a nice post by Jeff Michael on whether filing for bankruptcy will be that much "harder" for most filers after reform, and a useful warning about the inevitable funny numbers that will pop up when the bill goes into effect this fall. (Remember that most of the provisions don't go into effect for 6 months, except for the new anti-abuse provisions regarding the homestead exemption which will apply immediately).

I liked this post too summarizing the media coverage of the bankruptcy reform legislation the day it was signed:

President Bush has signed the bankruptcy reform act into law. I'm not linking to a news article about it, because I can't find one (I've looked at over 238 articles now) that doesn't approach the news with a clear bias. All of them use phrases like "...making it harder for debt-ridden Americans to get relief..." etc. Journalism as it was taught to me is dead.

Investor's Business Daily Tosses Its Cookies:

Excellent Editorial earlier this week in Investor's Business Daily, "Tossing Our Cookies" ($) nails the obesity issue:

Nutrition: The recent announcement by PBS that Sesame Street's Cookie Monster will be a spokespuppet for healthy eating ignores the fact that obesity is caused by what children eat and not by what they watch.

No one recalls that the movie "Veggie Tales" caused any youngsters to start raiding the fridge in search of cucumbers and broccoli.

Yet the theory that movies and TV unduly influence what children eat is behind the decision by PBS to send his blue furriness, the Cookie Monster, to a politically correct reeducation camp, returning to advise kids who presumably don't have parental supervision that cookies aren't everything and let the chocolate chips fall where they may.

They also cite yours truly:

Furthermore, as George Mason University's Todd Zywicki notes, the average American child watches less TV that he or she used to because of competing influences such as video games, personal computers and cell phones. We now have cable and remote controls and TiVo. Kids don't just sit through commercials that much anymore.

Overall, it is a nice roundup of the paucity of evidence on the advertising-children's obesity link.


A funny email follow-up from a reader:

It's off topic, but I can't _believe_ you didn't stretch your post to include a reference to the old Lenny Bruce routine (I'm paraphrasing):

They say what you watch on television will result in you doing that same thing. Which, if true, means your kids are better off watching a stag film than The Greatest Story Ever Told. Because I don't mind my kids eventually doing the one thing, but if Jesus comes back to Earth, I don't want them to crucify him again.

Lewis F. Powell and the Vast Right Wing Conspiracy: Over at the American Prospect, Mark Schmitt pokes holes in a puzzling theory that apparently is quite widely circulated but I don't think I have ever heard before: that the blueprint of modern conservative legal thought and activism was authored by that mild-mannered Southern gentleman and quintessential centrist, Lewis F. Powell. Schmitt writes:
  The story of the Rise of the Right is the great fable in recent American politics, one that is endlessly revised as it is told and retold by its participants and by envious observers from the left bank. In recent versions, a central place in the story has been given to a memo written in 1971 by Richmond corporate lawyer (and future U.S. Supreme Court justice) Lewis Powell to a neighbor who was active in the U.S. Chamber of Commerce.
  Powell’s eight-page memo, titled “Attack on American Free Enterprise System,” was a call for American business to defend its interests against criticisms of capitalism emanating “from the college campus, the pulpit, the media, the intellectual and literary journals,” and particularly from Ralph Nader (whose model of public interest litigation and publicity was then at its height). Powell recommended to the chamber a number of strategies, including building a group of scholars-on-call to defend the system; monitoring and critiquing the media; and building legal organizations that could fight back in the courts.
  The memo was circulated within Chamber of Commerce circles and became public after Powell’s confirmation to the court, when journalist Jack Anderson unearthed it to question Powell’s judicial temperament. After that, it seems to have been forgotten.
  Today, though, the Powell Memo is routinely invoked as the blueprint for virtually all of the conservative intellectual infrastructure built in the 1970s and 1980s — “a memo that changed the course of history,” in the words of one analysis of the anti-environmental movement; “the attack memo that changed America,” in another account.
  Never heard of this Powell memo? I hadn't, either, as far as I recall, at least until it was mentioned briefly in Jeffrey Rosen's piece on the alleged Constitution-in-Exile movement a few weeks ago. Fortunately, Schmitt has good news: the apparently "canonical" view that Lewis F. Powell is the sorcerer behind the Vast Right Wing Conspiracy is false.

  UPDATE: I should also point out that Mark Schmitt has an excellent blog, The Decembrist, which is thoughtful and smart. If you're not reading it, you should be.
Economics for lawyers:

I am pleased to recommend the new book — Economics for Lawyers — by my colleague Richard Ippolito. Are you looking for a work that will explain the concepts of moral hazard, adverse selection, the Coase Theorem, externalities, and other widely used concepts? This is the place to go. The very careful 415 pages of text cover the major ideas behind law and economics. The book uses graphs but no calculus. The exercises and questions are very useful. Each chapter starts with a list of new concepts to be presented. This is more of a text than Posner's Economic Analysis of the Law, more systematic, and more objective. The two are complements rather than substitutes. Highly recommended.

"Anti-Catholic in Effect":

Juan writes:

I think it is fair to say that at least some Democratic Senators — and some outside interest groups — have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect.

If a group specifically said that it opposed nominees who accept the Catholic Church's teaching on abortion — but not people who are equally anti-abortion but not Catholic — then it would indeed be anti-Catholic bigotry. But I take it that Juan's point is broader still: Any group that opposes nominees who believe abortion is murder, even if they do that without regard to the nominee's religion (or lack of religion), is setting up a test that's "anti-Catholic in effect."

I think, though, that "anti-Catholic in effect" isn't a helpful term here, because "anti-X" generally suggests hostility to Xs, or at least a deliberate desire to exclude Xs as Xs, and not just the adoption of a neutral rule that ends up burdening X. I wouldn't, for instance, call a university's decision to admit students based on high school GPA and SAT scores "anti-black in effect," even if it has the effect of excluding many black applicants (and a higher fraction of those applicants than of Asian or white applicants). Likewise, I don't think that we'd call professional sports teams "anti-woman in effect" simply because their selection criteria lead them to be all-male, unless we thought that the criteria were deliberately stacked against women.

More to the point here, say that President Bush decides that he's tired of anti-death-penalty judges who either vote to strike down the death penalty generally, or undermine it in lots of ways short of striking it down altogether. He says that he will not nominate any appellate or Supreme Court judges who are on the record as being strongly morally opposed to the death penalty. Would we call this "anti-Catholic in effect"?

I don't think so; again, "anti-Catholic" suggests opposition to someone because of his Catholicism. We should reserve the term, which has the connotation of hostility, to situations that do exhibit such hostility. "Has the effect of excluding Catholics / blacks / women" is much more accurate, both in its denotation and its connotation.

UPDATE: I had meant to note this in the original post -- I realize that Catholics are not doctrinally forbidden from supporting the death penalty, but there is, as I understand it, a considerable amount of modern teaching against it. The refusal to nominate judges who support the death penalty thus won't eliminate all Catholics (though neither would the refusal to confirm judges who deeply oppose abortion, since some Catholics are pro-choice, though there they are indeed running up against official church doctrine), but it would have a substantial disparate impact on Catholics, as I understand it. But in any event, one could substitute some other religious group that does oppose, as a matter of doctrine, the death penalty; I believe, for instance, Quakers are such a group -- would one call the policy I discribed "anti-Quaker in effect"?

Government Databases Help Police Identify Serial Rapist: The existence and use of massive government databases raise a number of important questions about invasions of privacy. As this interesting New York Times article suggests, however, such databases can also help the police crack very important criminal cases:
  A forgotten piece of evidence in a rape case from more than 30 years ago - a pair of underpants - has led to the DNA identification of a suspect in at least 24 other rapes and sexual assaults stretching from New York to Maryland, the authorities said yesterday.
  The DNA matches have linked the man to a notorious series of unsolved rapes that terrorized Montgomery County in Maryland and drew comparisons with the rampage of the Boston Strangler. Manhattan authorities said the Maryland cases might be only the beginning, as other states run the suspect's samples through their own DNA databanks.
  The man, identified by his lawyer as Fletcher Anderson Worrell, 58, was located in an Atlanta suburb late last year after he tried to buy a shotgun. The background check turned up two arrest warrants for him in New York City.

Tuesday, April 26, 2005

Chart of OT2004 Cases: Michael Cernovich has posted a handy chart listing all the cases on the Supreme Court's docket this Term with links to the parties' briefs, the oral argument date, and links to any filed opinions.
Dartmouth Gets Too Close to the FIRE:

Some interesting exchanges between Dartmouth and FIRE regarding Dartmouth's now-you-see-it-now-you-don't speech code. See Dartmouth: the Spin Unravels and Dartmouth: Still Mysterious.

Early 2008 Republican Presidential Poll:

Vote here. (Hat Tip Joe Malchow).

I was surprised at who appears to be the Condorcet winner.


When I first posted this, George Allen was beating Rudy, and Rudy was beating the others, which I found surprising. Looks like the tide has definitely turned against my fellow UVA lawyer in subsequent voting, however.

Judicial Ideology and Judges of Faith:

As much as I hate to disagree with my host, I think I have to side with Professor Bainbridge on this one. As I explained some time ago in posts on the nomination of William Pryor, here and here, I think it is fair to say that at least some Democratic Senators -- and some outside interest groups -- have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect. Larry Solum also had some thoughts on the matter here.

Objections to Judges' Ideology:

Stephen Bainbridge writes:

I was persuaded by [Stop the Bleating]'s take on this issue:

If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related. I would argue that since judges aren't paid to enact their personal preferences — moral or otherwise — into law, and many of them respect their limited role in our system, a judge's personal moral beliefs should be a concern only if there's some concrete reason to suspect they'll unduly influence the performance of his judicial duties, i.e., if he's likely to substitute his own moral judgment for high quality legal reasoning, or his reasoning is likely to be heavily colored by his personal preferences.

Well, one can argue that; but how persuasive is that argument? Judges do have the power to implement their moral beliefs into law. Obviously, many have exercised this power in the past, and there's little reason to doubt that they'll do it in the future.

Even those judges who try very hard not to let their moral beliefs affect their legal judgments may end up doing it inadvertently. Even if judges sincerely try to be bound by text and original meaning, constitutional text is often not very specific, and the original meaning is often highly ambiguous. Even if they sincerely try to be bound by precedent, the precedents can often be interpreted in different ways, and one's moral beliefs have a tendency to influence which interpretation one chooses. And sometimes the text, original meaning, and precedent, even when interpreted with perfect honesty, leave questions unresolved. At that point, judges have to make up some of the rules, and it's very likely that their moral beliefs will influence that process. You don't have to like this, but that's the reality of how judges operate.

What's more, you can't fire judges. In normal employment, you could argue that the employer should set aside prospective employees' beliefs, so long as the employees agree to follow the rules; then, if the employees show that their moral judgments are interfering with their jobs, they could be fired. (I don't think the employer should have such an obligation, but it's at least a plausible one to impose, given religious accommodation law and religious disparate impact law.) But this won't work for judges: If it turns out that a judge does deliberately or inadvertently let his moral views mold his legal decisions, he can't be removed short of impeachment — which is not a procedure that's likely to be used, or that we'd like to see frequently used.

Consider an analogy: Say that you support the death penalty, and you're the President deciding whether to appoint a judge, a Senator deciding whether to confirm him, or a voter deciding whether to vote for him (if he's a candidate in a state in which judges are elected). The judge is on the record as saying that the death penalty is murder, and that the court decisions upholding it are an abomination; but the judge has a reputation as an honorable man, and he promises not to let his moral judgment influencing his legal decisionmaking.

Would you feel obligated to take him at his word, and ignore his statements of his moral views, since otherwise your decision might have a "disparate impact" on judges who belong to those denominations that oppose the death penalty? Or would you feel that it's at least permissible for you to have reservations about the judge because of those views, regardless of whether those views have a religious foundation (even if you're ultimately willing to set aside those reservations for other reasons)? I think the answer is that such reservations are indeed quite permissible, even if the judge is entirely honorable.

None of this suggests that the filibustering of the judicial candidates is proper; there are all sorts of other plausible arguments against it. I'd like to see the Senate confirm more of President Bush's controversial nominees. But disagreement with a judicial candidate's strong moral views on legally significant topics is not religious bigotry, and can't be faulted on "disparate impact" grounds.

Justice Breyer Defends Gun Possession:

Well, kinda. In Small v. United States, Justice Breyer writes the majority opinion holding that the federal prohibition on gun possession by any person "convicted in any court" of a crime punsishable by more than one year in jail does not apply to foreign convictions. Joining Justice Breyer on the side of the gun owner were Justices Stevens, O'Connor, Souter and Ginsburg. Justice Thomas dissented, joined by Jsutices Kennedy and Scalia, holding that a conviction in a Japanese court would qualify as "any court."

The case is quite interesting on two levels. First, the justices one would expect to be most "pro-gun" ruled against the gun owner, while the justices one might expect to be most anti-gun came out the other way. On the other hand, the ideological line-up is precisely as one would expect if one focuses solely on the quesiton of statutory interpretation. Justice Thomas and the more conservative justices read the statute quite literally -- "any court" means any court -- even if it produced a non-conservative result; while the more liberal justices read "any court" in a broader context to determine its meaning apart from the literal meaning of the words.

I also think the Small decisions are interesting because they completely avoid the elephant in the room: the Second Amendment. Even though the petitioner did not challenge the statute on Second Amendment grounds, or even suggest that the statute should be given a narrow reading so as to avoid potential Second Amendment problems, I might of thought one of the justices might have dropped a footnote to note the opinion did not address any potential Second Amendent concerns. Justice Thomas did this in his Printz v. United States concurrence, so I found it interesting that neither Justice Thomas nor any other Justice did so here.

Related Posts (on one page):

  1. Justice Breyer Defends Gun Possession:
  2. Interesting New Case:
A Great Judicial Opinion:

I was just rereading one of my favorite court opinions — Justice Jackson’s dissent in United States v. Ballard, 322 U.S. 78 (1944) — and I enjoyed it so much that I thought I’d blog it. Here’s the background, from the majority:

Respondents were ... convicted for using ... the mails to defraud ... by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought “by means of false and fraudulent representations, pretenses and promises.” The false representations charged ... covered respondents’ alleged religious doctrines or beliefs.... The following are representative:
“that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged ‘ascertained masters,’ Saint Germain, as a divine messenger; and that the words of ‘ascended masters’ and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

“that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged ‘ascended masters,’ including the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the ‘I Am’ movement;

“that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments.” ...

[T]he indictment ... alleged: “At the time of making all of the afore-alleged representations ..., ... the defendants ... well knew that [the] representations were false ... and were made with the intention on the part of the defendants ... to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value ....” ...

The majority reasoned, I think quite correctly, that a court couldn’t inquire in such a fraud case whether the defendants’ religious beliefs were true, but it could inquire into whether they were sincerely believed. This is still the legal rule, and it may well be correct. Among other things, courts would have to decide the sincerity of religious belief in at least some situations, for instance when people are claiming some religious or conscientious exemptions (say, to the draft), whether those exceptions are constitutionally mandated or statutorily provided.

Still, I think that Justice Jackson’s dissent, whether you agree with it, is a model of clear, concrete, plainspeaking eloquence. Anyone who’s interested in how to use facts and everyday experiences in crafting an argument (not an argument that won any other adherents on the Court, but I think still an excellent one) should read it:

Interesting New Case: The Supreme Court handed down Pasquantino v. United States today, holding that a plot to defraud a foreign government of tax revenue violates the federal wire fraud statute. The vote was 5-4, with Thomas writing for a majority joined by the Chief, O'Connor, Kennedy, and Stevens. Ginsburg dissented, joined by Scalia, Souter, and Breyer.

  UPDATE: While you're at it, read Pasquantino in conjunction with Small v. United States, also handed down today, on whether foreign convictions count as convictions under the felon-in-possession statutes. The Court voted 5-3 that they don't, with the Chief not voting and Scalia, Kennedy, and Thomas dissenting.

Related Posts (on one page):

  1. Justice Breyer Defends Gun Possession:
  2. Interesting New Case:
When Professors Read Pseudonymous Student Blogs: This fall, I came across a pseudonymous GW 1L student blog, Idle Grasshopper. Mr. Idle Grasshopper blogged a lot about his professors (appropriately anonymized, but still recognizable to an insider), and I decided to tip off one of those professors so he could check out what the student was saying about him. That professsor is one of GW's best young teachers, and Idle Grasshopper was appropriately wowed by his teaching — and also a bit nervous about getting called on given the professor's demanding Socratic style.

  My colleague started to visit the student's blog on occasion to see the student's reaction to class and also to see if he could figure out the student's identity. After visiting the blog on a semi-regular basis for a few months, he was able to piece together the evidence and determine who was Idle Grasshopper. He also realized that he had never called on the student in the course of the entire year (the course was Civ Pro, a year-long class). He decided not to call on Mr. Idle Grasshopper until the very last case on the very last day of the semester. And when he did, it was with a very cleverly crafted introduction:
Professor: So, Mr. [ ].
Student: Yes sir.
Professor: You've been sitting back there idle all year, laying low in the grass, but I'd like to put this seating chart in the hopper, so I thought I'd call on you.
  Check out the student's reaction here.
TV and Radio Looking to the Blogosphere: It may be just a coincidence, but in the last 24 hours I have read posts by two lawprof bloggers noting that their blog posts had been discussed on major television shows (here) or radio programs (here). A new trend, perhaps?
The "Most Ideologically Extreme"?

Yesterday Election Law Blog's Rick Hasen had an op-ed in Roll Call arguing that the filibuster is no more inherently "undemocratic" than the Senate itself. Setting aside the merits of Hasen's comparison, I was struck by the opening of his piece:

Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees.
This caught my eye because it is false.

Setting aside whether, say, filibustered Ninth Circuit nominee Carolyn Kuhl is more or less "ideologically extreme" than, say, confirmed Sixth Circuit Judge Jeffrey Sutton, or whether filibustered Fifth Circuit nominee Justice Priscilla Owen is more or less "ideologically extreme" than confirmed Fifth Circuit Judge Edith Brown Clement, Senate Democrats have readily acknowledged that they are filibustering several Bush nominees as payback for Republican obstruction of Clinton nominees, and not because of ideology. Specifically, Senate Democrats oppose confirmation of four nominees to the U.S. Court of Appeals for the Sixth Circuit from Michigan — Henry Saad, Richard Griffin, David McKeague, and Susan Neilson — because Republican Senators blocked Clinton's Michigan nominees, including one who is related to Senator Carl Levin. As detailed here, and here Michigan Senators Levin and Debbie Stabenow said they would "blue slip" all Michigan judicial nominees until Bush agrees to renominate two of Clinton's nominees. When Senate Republicans disregarded the blue slips and sought to confirm three of these nominees over the home-state Senators' objections, the Democrats resorted to a filibuster.

Senators Levin and Stabenow have repeatedly stated that they are concerned with "fairness" and not the ideology of these particular nominees. As they wrote to President Bush last year, they are "willing to discuss any compromise offer that addresses the unfair treatment of the two Michigan women previously nominated by President Clinton to vacancies on the Sixth Circuit so that the tactic used to deny them hearings does not succeed."

Whether their concerns are legitimate grounds for a filibuster — or whether Republican Senators' obstruction of Clinton's nominees was any worse or less justified than Democratic obstruction of the first Bush's nominees — is a debate for another day. Here I merely seek to correct the record as to why Senate Democrats are filibustering some of President Bush's nominees, and to make clear that those filibustered to date are not the "most ideologically extreme" of Bush's nominees.

UPDATE: Rick Hasen responds here. I think he concedes my point, but also notes (correctly) that my criticism does not address or undermine the primary substantive argument of his piece. Larry Solum also chimes in on substance of Hasen's column, and Hasen responds here.

More on Decisions About Political Candidates and Appointees and Religion:

Stephen Bainbridge responds to Cathy Young's column that I noted and largely agreed with; Cathy responds in turn. I think Cathy's response is quite right.

UPDATE: Stephen has a further response, but I think Cathy is still correct here.

Related Posts (on one page):

  1. "Anti-Catholic in Effect":
  2. Judicial Ideology and Judges of Faith:
  3. Objections to Judges' Ideology:
  4. More on Decisions About Political Candidates and Appointees and Religion:
The Secret Is Out: Vanessa Blum explains how to get a high-level political appointment at the Justice Department here.

Monday, April 25, 2005

The Conservative Intellectual Movement in America Since 1945:

Geroge H. Nash's book, The Conservative Intellectual Movement in America Since 1945 is a book that has long been on my reading list and I finally got around to reading it over the past few weeks. It is a really comprehensive and insightful analysis of the development of modern conservatism and libertarianism. In particular, Nash's key theme is ongoing story of the way in which disparate strands of thinkers have been able to be melded together into a stable conservative "movement". The core is the alignment of traditionalists, libertarians, and anti-communists into a coherent conservative movement. It is very reminscent of the recent David Brooks article that made waves, where Brooks notes that conservatism has always been an "ideas" movement.

The book was originally published in the 1970s, but remains remarkably fresh today. A new edition appends a discussion of Reagan and the development of the Religious Right. The main outdated concept of the book is the repeated use of the concept of Gnosticism, a term I had never previously come across, but which apparently was a theme of Eric Voegelin's work.

I think that Nash overstates the influence of the Southern Agrarian tradition specifically, which I think has failed to exert much of a force over the development of conservatism, although he does note the way in which it has grown into the traditionalist element of conservativism. Reading between the lines here, I think that part of what Nash is up to is trying to identify an indigenous American traditionalism that is not as reliant on Burke as Kirk was, and he finds this in the Southern Agrarians (such as Weaver). He also has an interesting discussion of the rise of Tocqueville's influence on American conservatism that I found very interesting.

And neoconservatism comes along a bit after this book (Bill Kristol, for instance, is referred to as a nameless Harvard undergraduate in this book).

Otherwise, the debates described in the book are remarkably fresh today and Nash does a great job describing them.

Another striking element of the book is the way in which conservative thought was fundamentally spawned outside the academy, and of course, remains so today in the form of think-tanks. Even academics like Russell Kirk and Wilmoor Kendall ended up outside the academy. Kendall was an especially interesting discovery to me--I've only known him as a character who flits in and out of William F. Buckley's various novels, so it was interesting to learn more about him as my impression is that he has not withstood the test of time as well as some of the other thinkers discussed here.

What I liked best was Nash's even-handed treatment of all of the various strands of the conservative movement--it is rare to find someone equally adept and sympathetic to people as diverse as Kirk, Mises, Chodorov, Nock, and Frank Meyer. The knowledge here is really encyclopedic. I found it a great read, very informative, and I learned a lot about the roots of the modern conservative movement that I didn't previously know from the generations that preceded mine. Nash places a substantial emphasis on the role of Catholics in building modern conservatism, and the debates within the Catholic conservative community.

So, especially for the general reader interested in the roots of various strands of modern conservative thought (I consider myself a general reader in this area), I commend Nash's book.

Nash's book is especially useful when read in conjunciton with William Rusher's great book The Rise of the Right, which I read many years ago. Rusher focuses more specifically on the development of the conservative movement as a popular and political force, in packaging and retailing conservative thought. Rusher has some great stories and info about Goldwater, Reagan, and the National Review, stuff that I hadn't previously read anywhere else. Rusher also is a great writer and tells a great story.

More on Wikipedia:

Jonathan Zittrain at Harvard writes:

I'm teaching a special session of my spring cyberlaw class later this afternoon with Jimbo Wales, founder of the wikipedia. In the spirit of a wiki, please feel free to tune in. There will also be an opportunity to submit questions and comments remotely. The class is today, Monday, April 25, 2005, from 4:30-6:30 EST. Webcast and participation tool [here].

I imagine much of the session will be focused on the sustainability of a completely open content-generation model; the use of quasi-law to moderate users' submissions, especially as more and more people seek to influence the Wiki's content for reasons other than refining a "neutral point of view" on useful facts; and the implications of the Wikipedia's apparent success for other forms of content generation.

A New Blog to Compete With Drudge!--

The New York Times has a strange story on Arianna Huffington's new celebrity blog designed to compete with the Drudge Report. Yes, that's what the story says:

Among those signed up to contribute are Walter Cronkite, David Mamet, Nora Ephron, Warren Beatty, James Fallows, Vernon E. Jordan Jr., Maggie Gyllenhaal, Arthur M. Schlesinger Jr., Diane Keaton, Norman Mailer and Mortimer B. Zuckerman.

"This gives me a chance to sound off with a few words or a long editorial," said Mr. Cronkite, 88, the longtime "CBS Evening News" anchorman. "It's a medium that is new and interesting, and I thought I'd have some fun."

In some ways, Ms. Huffington's venture is a direct challenge to the popular Drudge Report. Started nearly a decade ago by Matt Drudge, the Drudge Report lifts potentially hot news from obscurity and blares it across a virtual "front page," usually before anyone else. While his squibs are sometimes cast with a conservative slant, his "developing" scoops often send the mainstream media scrambling to catch up.

But--you might object--Drudge doesn't really run a blog. Well, you just have to read the story to see how a celebrity group blog with 250 posters might compete with Drudge. Although most of the story is about the celebrity posters, the crucial fact in the story might be this:

Ms. Huffington's effort - to be called the Huffington Post ( - will also seek to ferret out potentially juicy items and give them legs. In fact, she has hired away Mr. Drudge's right-hand Web whiz, Andrew Breitbart, who used to be her researcher.

Aha! So someone who is not well known (or, more precisely, is about as well known as a lot of prominent non-celebrity bloggers), Andrew Breitbart, may be writing a news service to compete with Drudge. That is at least a plausible hook--someone with web expertise but without a famous name might provide important content.

The format is not disclosed. Will all 250 celebrities be posting one after another on the same page? I could imagine that working, somewhat like NRO online. If so, a small fraction of the 250 celebrities are likely to dominate the dialogue. Or will there instead effectively be a blogroll on the side with 250 celebrity names to click on? The article ambiguously says that "Notables will oversee certain sections, with Gary Hart . . . taking the lead on national security issues." It was thus unclear whether there would be a filter for bloggers wanting to post, which would discourage posting considerably.

One interesting passage:

Ms. Ephron, the writer, who is one of the bloggers, said it was this casual aspect of the venture that appealed to her. "The idea that one might occasionally be able to have a small thought and a place to send it, without having to write a whole essay, seems like a very good idea," she said.

She also sees the Post as a chance for the left to balance out the right.

"In the Fox era, everything we can do on our side to even things out, now that the media is either controlled by Rupert Murdoch or is so afraid of Rupert Murdoch that they behave as if they were controlled by him, is great," she said. But sometimes, she added, "I may merely have a cake recipe."

Ms. Walsh of said that managing the politics of the site could be tricky. The initial enthusiasm is likely to be among the left, who feel like they are getting kicked by Drudge and the right, she said. But the blogosphere is independent and skeptical and rejects political cant, she said, adding, "You don't want to be doing predictable journalism and pandering to people."

The blog will not be up until May 9.

More at Tim Blair.

UPDATE: Ann Althouse commented earlier in the day.

Punctuation and Quotation Marks:

The dominant American style is to include commas and periods within quotation marks even when that punctuation doesn't belong to the quotation. Thus, you'd write

This is an example of what the Court has called "the chilling effect."

rather than

This is an example of what the Court has called "the chilling effect".

The latter style isn't wrong, and some prefer it because it seems more logical; my Oxford English Grammar says that it's the norm in British English. But most American publishers always put the period and the comma inside the quotation mark.

That much most people know, but quite a few editors erroneously generalize this to semicolons and some other punctuation marks. The rule for those punctuation marks is that they are never moved before the quotation mark; they appear immediately before a quotation mark only when they appear in the quoted material. Thus,

Right: This is an example of the "chilling effect"; there are others.

Wrong: This is an example of the "chilling effect;" there are others.

Right: Do you think this is an example of the "chilling effect"?

Right: The Court asked, "is this an example of the chilling effect?" [The question mark is part of the quoted material.]

Wrong: Do you think this is an example of the "chilling effect?"

Remember — only commas and periods get moved within quotation marks. This is the American norm, and the one to which most readers' eyes are used. Some day the error of today may become common enough that it becomes standard usage for the future; descriptivist that I am, I won't be able to condemn such a usage as "wrong" then. But right now, as best I can tell, the moved semicolon/colon/question mark/exclamation point is still a rarity, and seen as an error rather than an alternative style. That's what the Authorities (which are a decent guide of what current usage is) say, and it's my sense of what's actually done by publishers. And even if you want to be a maverick yourself, don't change the author's correct semicolons-outside-quotes into your own idiosyncratic semicolons-inside-quotes.

Why, by the way, were commas and periods ever moved within quotation marks? I'm not positive, but the most plausible account that I've read is that this just looks better in proportionally-spaced typeset fonts. UPDATE: Several readers e-mailed with an alternate explanation, which is summarized here:

According to William F. Phillips . . ., in the days when printing used raised bits of metal, "." and "," were the most delicate, and were in danger of damage (the face of the piece of type might break off from the body, or be bent or dented from above) if they had a '"' on one side and a blank space on the other. Hence the convention arose of always using '."' and ',"' rather than '".' and '",', regardless of logic.
Presumably the problem occurred in Britain as well as the U.S., but the Americans were more pragmatic, unconcerned with logic, or cost-conscious.

Reports of Sensible Decisionmaking May Have Been Greatly Exaggerated:

Reader Jason Walta passes along this item from The Advocate:

The Defense Department has sharply contradicted reports in The New York Times and other media that sodomy would no longer be categorized as a criminal act in the U.S. military.

Defense Department spokesman Lt. Col. Joseph Richard told Advocate/OutQ News that the Pentagon is only recommending that the laws prohibiting consensual sodomy be moved from one section of the Uniform Code of Military Justice to another.

"We have placed it where it belongs, in the Manual [for] Court[s-] Martial. Acts committed under that article are prejudiced to good order and discipline in the military. We have not decriminalized sodomy," he said. . . .

[T]he Pentagon believes that its specific claim that sodomy between service members is detrimental to "good order and discipline" will be enough to keep the ban from being struck down [as unconstitutional]. . . .

I'm puzzled, though: The current ban prohibits all "unnatural carnal copulation," whether with another service member or with one's non-service-member spouse or lover. Is the military planning to limit sodomy to nongenital sex among service members? Will it limit it only to nongenital sex that is within a unit or the chain of command and thus potentially detrimental to "good order and discipline," or is its claim that nongenital sex with any fellow service member, even someone in a completely different unit, or possibly even with a non-service-member, is somehow prejudicial to good order and discipline?

Also, why would nongenital sex be more prejudicial to good order and discipline than genital sex? I assume (though maybe I'm mistaken) that genital sex among service members is not a crime, unless there is something that makes it a potential threat to good order and discipline (for instance, that it's within the chain of command, or of course that it's nonconsensual).

In any event, as usual with press accounts quoting or paraphrasing people, take all this with a grain of salt; some important details may have been omitted or misreported.

UPDATE: Reader Paul Johnson, a former military lawyer, suggests that the change may indeed be to decriminalize nongenital sex except when it's detrimental to good order and discipline (or brings discredit on the armed forces). He suspects that the Pentagon may be planning to repeal Article 125 (as the New York Times reported) but to shift some sodomy prosecutions to Article 134, which prohibits "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." He also writes that "I don't see that genital sex and non-genital sex would be treated differently under Article 134 (except that genital sex between a married person and an unmarried person can also be prosecuted under Article 134 as adultery). If it's performed under circumstances that would be prejudicial to good order and discipline, or constitutes service-discrediting conduct, it's punishable under Article 134."

If this conjecture about what the Pentagon is planning — and again I stress the difficulty of speculating based on press accounts — then the New York Times article is largely right, the Advocate article is mistaken or at least incomplete, and the Pentagon's decision is indeed sensible.

Related Posts (on one page):

  1. Reports of Sensible Decisionmaking May Have Been Greatly Exaggerated:
  2. About Time:
About Time:

[UPDATE: For a report that the Pentagon is not planning to decriminalize consensual sodomy, see here.]

The New York Times reports:

The office of the general counsel at the Pentagon has proposed decriminalizing consensual sodomy among adults . . . .

Under Article 125 of the Uniform Code of Military Justice, it is a crime to engage in "unnatural carnal copulation with another person of the same or opposite sex," even with mutual consent.

The changes proposed by the Pentagon's lawyers would narrow the definition to prohibit acts of sodomy with a person under age 16 or acts "committed by force." . . .

While the change would not alter the military's policy against gay men and lesbians in uniform, advocates for gay rights said that recent court decisions and the proposed changes to the military code could have broader implications for gay men and lesbians in the armed forces. . . .

I'm quite skeptical of the arguments against allowing gays in the armed forces, but at least there's a plausible — though in my view on balance unpersuasive — justification for that policy: the concern that homosexual relationships may interfere with discipline and cohesion in all-male or nearly all-male units. (I don't see how that argument could justify the exclusion of lesbians, but that's a matter for another day.)

What plausible relation, though, could there possibly be for banning nongenital heterosexual sex — including oral sex, which the overwhelming majority of heterosexuals engage in — among servicemembers? How does banning our soldiers from having oral sex make them a more effective fighting force? How is the rule anything other than a waste of time, money, and military resources if enforced, and anything other than a mockery if unenforced?

The only explanation I've ever heard for such rules is that they make it easier to prosecute nonconsensual sex when the evidence of lack of consent is weak. But that strikes me as a lousy justification, a recipe for injustice against perfectly innocent, decent people who happen to get on the wrong side of a prosecutor or a commanding officer. And it seems to me that in the military even more than in civilian life, the rules should be enforced, and rules that we aren't prepared to enforce (at least in the normal cases, setting aside the exceptional ones) shouldn't be rules.

Finally, I realize that the decriminalization of nongenital sex would indeed eliminate one argument against excluding practicing homosexuals. But if the real reason for the exclusion is the concern about unit cohension, then that's what the argument should be about — not the practicing homosexuals' violation of a rule that's pointless and that's routinely violated by most heterosexuals.

State Median Incomes (Revisited):

Bizzyblog reports that my pointer to the FY 2004 Census Numbers for state median incomes is too simple.

Bizzyblog on Bankruptcy Reform:

Tom Blumer at Bizzyblog has a roundup of all of his commentary (and future commentary) on the Bankruptcy Reform Legislation, mostly from a critical perspective.

Tom has been posting a lot on this issue, and unfortunately because of my other commitments, I was unable to respond on much of it. For those looking for coherent criticisms of the legislation as well as some potential practical problems that he foresees arising. My apologies to Tom for not being more responsive to his posts, but I was also trying to respond to congressional inquiries as well as other traditional media reporters (as well as trying to hold down my day job, finish up an article, and run for the Dartmouth Board of Trustees...).

Is now when I finally get to sleep?

Filibuster First Principles:

Here's a very simple puzzle that I don't get about the filibuster question. Leave aside the constitutional questions and particularities of procedures to change internal rules. As I understand it, the justification for the use of the filibuster in the Senate (contra the House) is that the Senate is a deliberative body, and that the filibuster permits extended debate on issues that come to the floor prior to taking a vote. But doesn't that imply that when the debate is done and there is no further deliberation, that there is some obligation to bring the matter to a vote?

So here's my question. Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending for 4 years? Are there some Senators who are still on the fence, undecided on how they want to vote on her nomination? If deliberation is done, doesn't that mean that there is an implicit obligation to allow the matter to come to a vote? And if there is no ongoing debate or further deliberation on the matter, then it seems to me that the the Senate should be able to adopt rules that allow fully-deliberated matters to come to a vote and not allow the minority to use the filibuster to kill a matter.

In fact, the majority needed to invoke cloture has fallen over time (summarized here). Looking at the history, it appears that the rationale for changing the filibuster rules over time has been to balance the rights of the majority to act versus the rights of the minority to state their case. Thus, where the filibuster has been abused by a minority to kill legislation, as opposed to merely slowing it and ensuring full deliberation, the Senate has moved over time to reduce minority abuse of the filibuster while preserving full deliberation. In light of this history, given the apparent absence of any further debate on some of the judicial nominees, it seems plain that the use of the filibuster against Justice Owen (most notably) is quite clearly an abuse of the power. As a result, if the minority fails to end its abuse voluntarily, the Senate majority would be well within its rights to adopt rules that eliminate abuse of the filibuster power, just as it always has in the past.

This distinction between the use of the filibuster to slow versus stop a particular Senate actions seems to be the intuition behind the historic criticism of the use of the filibuster to kill Civil Rights Legislation (and before that, the repeated use of the filibuster to kill anti-lynching legislation of the 1920s and 1930s). In each of those situations, the purpose of the filibuster was its use by southern Senators to kill the legislation outright, rather than merely to ensure full deliberation of the issue prior to a vote. Moreover, this may explain why in the public mind the abuse of the filibuster is associated with such stunts as Senators reading names from a phone book, because these sorts of speeches are seen as abuse of the filibuster, in that they are non-deliberative in nature.

I can't find anything in the Senate history that suggests that it has ever been thought an appropriate use of the filibuster to kill legislative action even after all debate and deliberation is effectively complete. And where the filibuster has been used in an abusive manner to kill rather than slow legislative activity, my reading of the history is that over time the majority has changed the rules in order to eliminate the abusive use of the filibuster power.

Of course, it should be noted the asserted rationale for the filibuster in the Senate may be an ex post rationalization more than an historic justification. Some have argued that the filibuster has nothing at all to do with the nature of the Senate versus the House, but rather is a historical accident. As a historian of the filibuster recently observed:

The right to extended debate was not created until 1806, when the Senate cleaned up its rulebook and dispensed—probably by mistake—with the rule that allowed a majority to limit the debate. Filibusters did not begin in earnest until the newly formed Democratic and Whig parties formed several decades later.

Federal Preemption of Some Product Liability Lawsuits, and States' Rights:

D.C. law holds manufacturers of semiautomatic guns liable when criminals use those guns to commit crimes in D.C., even though the manufacturers made and sold those guns entirely outside D.C. Last week, I complained about this; D.C., I argued, shouldn't be able to impose its policy judgments on behavior in other states:

You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee. . . .

[I]t's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.

This reasoning, of course, would apply equally to other products, such as alcohol (which I mentioned in my original post) or whatever else.

But what about states' rights, some readers asked? Here's one message that I got:

[A]llowing federal preemption of such [product liability] claims would vastly expand federal power into an undisputed traditional domain of state law — not the kind of thing I expected a defender of states' rights (such as yourself) to say.

My position, though, is all about protecting states' rights to govern behavior within their own states. I do generally think that on many (though not all) issues Oregonians should be deciding what's allowed in Oregon and Tennesseans should be deciding what's allowed in Tennessee. Rules of behavior in Tennessee should generally be set by the Tennessee Legislature, not the federal Congress.

But rules of behavior in Tennessee shouldn't be set by the California Legislature or the D.C. City Council, either. And that's precisely what the D.C. statute that I faulted does: By imposing tort liability on behavior in Tennessee, it operates as a tax, a regulation, or even (practically) a prohibition on what Tennesseeans can do in Tennessee.

It's a violation of states' rights, not a vindication, for one state to impose such regulations — whether framed as tort liability or otherwise — on behavior in another state. (Let's treat D.C. as a state for these purposes, since my call for federal preemption would apply equally if it had been a state.) Likewise, it's a vindication of states' rights, not a violation, for Congress to step forward to protect the rights of other states against this sort of unilateral imposition by D.C. law, or, for instance, by California law that is interpreted as holding Glock liable for Glock sales practices in Washington State.

Finally, I would caution against appeals to tradition here. It's true that most tort law has traditionally been state law; but that's partly because historically most tort liability has involved either entirely intrastate behavior or behavior that's largely intrastate. In particular, I don't think there has been a long tradition of tort law imposing liability on defendants' purely out-of-state behavior in the first place, especially when defendants' behavior was lawful in the state in which it took place.

Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what's "traditional" here.

Related Posts (on one page):

  1. Federal Preemption of Some Product Liability Lawsuits, and States' Rights:
  2. Why Congress Should Pre-Empt Most Lawsuits Against Gun Manufacturers:
Religion and Judicial Nominations:

Cathy Young writes:

On April 24, Senate Majority Leader Bill Frist is set, at the time of this writing, to participate in a "Justice Sunday" telecast at which America's most prominent evangelical leaders will lambaste the Democrats who are blocking conservative Bush nominees for federal judicial posts. A flier for the event, organized by the Family Research Council, decries "the filibuster against people of faith," accusing Democrats of an anti-religious bigotry comparable to "racial bias." . . .

This is not the first time Republicans have made this charge. Two years ago, Senate Democrats blocked the nomination of Alabama Attorney General William H. Pryor Jr., an orthodox Catholic with strong antiabortion views who had described Roe v. Wade as an "abomination," to the US Court of Appeals for the 11th Circuit. Conservative activists complained of anti-Christian bigotry and ran an ad showing a "Catholics need not apply" sign over a courthouse door.

Of course, the issue isn't simply "faith," but a nominee's views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies "serious" Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.

What if the issue was not abortion? Let's say that a Democratic president had nominated to the federal bench a judge known for passionate, Christian-based hostility to capital punishment. Would it be "anti-Christian" for Republicans to oppose the nomination? To take an even more ridiculous example: Would it be "religious bigotry" to oppose the presidential candidacy of a devout Quaker who declared that his policies would be rooted in his religious belief that all use of military force is wrong? . . .

Young's analysis strikes me as quite right. One can plausibly fault the Senate Democrats' opposition to the President's judicial nominees on various grounds, but "religious bigotry" is not one of them. As best I can tell, the Senators care about the nominee's politics, ideology on contested legal questions, and likely future votes on such questions, not about the nominee's religion.

Of course, there may well be a correlation between certain political or judicial views and religion. But as Young's examples show, this doesn't turn political and ideological hostility -- whether that hostility is justified or excessive -- into religious bigotry.

Sunday, April 24, 2005

PDF Copies of the United States Reports: Most lawyers and law students know that that the U.S. Supreme Court website posts slip opinions of recent cases. What you might not know is that as the Court publications unit finalizes its slip opinions and eventually compiles them into bound volumes of the United States Reports, it also makes the entire contents of individual volumes of the United States Reports available as individual .pdf files. The service begins with Volume 502 (October 1991), and currently goes as far as Volume 538 (through May 27, 2003). This means that you can download entire volumes of the U.S. Reports and save them to your hard drive for subsequent searching and use offline — with the correct pagination, italics, appendices, charts, and graphs — all for free. Really cool, at least if you're into that kind of thing.
Blog Readability Stats,

as reported by Stephen Bainbridge.