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Saturday, July 9, 2005

The BBC--It's "Terrorism" When it Happens to You:

Not long ago, the BBC said that it never used the words "terrorism" or "terrorist" because, and I quote, "one man's terrorist is another man's freedom fighter." Thus, for example, if Hamas blew up a bus in Tel Aviv, the "T" words were never used. But, in the aftermath of the London bombings, go ahead and search the BBC's website for "terror," "terrorism," and even "terrorist." It turns out that when Islamic fanatics are blowing up trains and buses in YOUR city, one man's terrorist is another man's terrorist. Hat tip to HonestReporting.com for bringing this to my attention.

UPDATE: Apparently, the BBC's fit of sanity was only temporary.

Further UPDATE: The Telegraph has more.

Justices' Changes of View on Big Issues:

I'm collecting a list of cases in which Justices clearly changed their views on a high-profile subject (compared to what they had said in an earlier decision). I prefer cases where the Justice isn't just acceding to changed precedent, but changing his views on the merits. Here are the things that quickly come to my mind.

1. Justice Brennan changing his views on obscenity, from accepting an obscenity exception to the free speech principle to basically rejecting it. Compare Roth v. United States (1957) with Paris Adult Theatre I v. Slaton (1973).

2. Justice Blackmun changing his views on the death penalty, from accepting its constitutionally to rejecting it. Compare Gregg v. Georgia (1976) with Callins v. Collins (1994).

3. Justice Brennan changing his views on legislative prayer, from strongly suggesting that it was constitutional to concluding that it wasn't. Compare Abington School Dist. v. Schempp (1963) with Marsh v. Chambers (1983).

4. Justice Blackmun changing his views on state "core functions" immunity to federal legislation, from supporting such an immunity to rejecting it. Compare National League of Cities v. Usery (1976) with Garcia v. San Antonio Metropolitan Transit Authority (1985).

5. Justice Thomas changing his views on right-to-jury-trial challenges to sentencing schemes, from rejecting such challenges to providing the fifth votes to strike down the schemes. Compare Almendarez-Torres v. United States (1998) with Apprendi v. New Jersey (2000).

6. Justice Thomas generally changing his views on commercial speech, from generally endorsing fairly broad government authority over it to generally rejecting it. Compare U.S. v. Edge Broadcasting (1993) with 44 Liquormart v. Rhode Island (1996).

7. Chief Justice Rehnquist and Justice O'Connor switching sides on corporations' right to engage in independent expenditures related to candidate campaigns (Rehnquist from no to yes, O'Connor from yes to no, though O'Connor's vote might be seen as acceding to precedent). Compare Austin v. Michigan Chamber of Commerce (1990) with McConnell v. FEC (2003).

If you can think of other examples, please note them in the comments. I am not looking for supposed inconsistencies in Justices' views, or simply signs of evolution when there's no clear change of mind (as, for instance, Justice Stevens' move from being very skeptical of race preferences in his early years on the Court to being much more open to them in later years — it's possible that this simply reflected his view, whether or not it is a well-founded view, that the later preference schemes were different from the earlier ones). Rather I'm looking for situations where Justices either say that they've changed their minds, or vote in ways that clearly contradict their earlier votes (for instance, as in example 7).

Also, please name a case representing the old view and a case representing the new view; otherwise, it's too easy to make mistakes.

36 Comments
Getting a Law Teaching Job: I have two long posts up over at PrawfsBlawg on the process of getting a law professorship:
1. Getting A Teaching Job: The Role of Specialization, and
2. Getting a Teaching Job: The Job Talk.
Be sure to check out the comment threads, as well as the very good related posts by my temporary co-bloggers.
7 Comments

Friday, July 8, 2005

Kelo and Environmental Conservation:

Interesting observation by the head of the American Farmland Trust that Kelo may have an unexpected negative effect on conservation of open space: "With so much farmland on the urban edge and near cities still in steep decline, ex-urban towns could be tempted by this ruling to make farmland available for subdivisions."

The story on Commons Blog.

3 Comments
International Zionist Conspiracy, Redux:

The Israelis knew in advance about the London bombings... no wait, they didn't, but that doesn't stop certain conspiracy mongers from mongering their conspiracies.

Oh, Come On, Folks, This Is Just Unacceptable:

As of now, 27 comments on the post about a possible Rehnquist retirement; 21 on the post about hate crimes; 11 on originalism, precedent, and the views of blogger Matthew Yglesias; but on my three posts about the Law of French Kissing, 1, 1, and 0.

Didn't you read the instructions? Meaningless titillation is supposed to be what draws the attention! Enough with the substance — aren't you interested in sex? I am so disappointed.

25 Comments
"That's for me to know and you to find out":

The Chief answering questions on whether he'll retire. (HT Drudge).

More on Rehnquist:

A reader writes:

You heard it here first: Rehnquist may resign, possibly.

If I'm right, I'm a star! And if I'm wrong, I'm a gas giant! http://unusedandunusable.blogspot.com/2005/07/i-change-my-mind-i-think-rehnquist.html

Related Posts (on one page):

  1. More on Rehnquist:
  2. More Rehnquist Retirement Rumor:
10 Comments
Oh, and Why the French?

What, other nations never French-kissed before the French invented it?

2 Comments
But Of Course:

"What Will Happen to O'Connor's Clerks?, asks a column on the ABA Journal eReport site. Here's what the clerks say:

Kozinski’s clerk, [Sasha] Volokh, a Harvard grad whose brother Eugene Volokh also clerked for O’Connor and Kozinski, declined to comment. Yale grad Amy Kapczynski is a human rights activist and former clerk for Judge Guido Calabresi of the New York City-based 2nd U.S. Circuit Court of Appeals. Benjamin Horwich, who edited the law review at O’Connor’s alma mater, Stanford, most recently clerked for Vaughn R. Walker in the Northern District of California. The clerks either could not be reached or did not respond to requests for comment.

Exactly the right answer.

3 Comments
Eugene Needs a Babysitter (?):

Given the subject matter of Eugene's last three posts, is anyone else wondering whether maybe he needs to get a babysitter for the kids and have a nice romantic evening out with the wife?

4 Comments
Banned in Boston:

Under Massachusetts law, possessing pictures of minors engaging in (among other things) "lewd fondling, touching, or caressing" is a felony. Under the Kansas Court of Appeals' reasoning, that would presumably include pictures of minors French-kissing, at least if the French kissing is seen as emotional enough. What videos would it be a felony to possess in Massachusetts, if the Kansas court's interpretation of "lewd touching" were adopted?

UPDATE: PowerBlogs' techmaster Chris Lansdown writes:

Forget movies -- what family pictures of teenage [here, 17-or-under -EV] children with their girlfriends, or teenage husband/wife kissing after their marriage (some people do so less modestly, I understand)?

3 Comments
PDAs a Crime?

(That's Public Displays of Affection, for those worried about their Palm Pilots.)

In Colorado, Connecticut, Illinois, and Nebraska, public "lewd fondling" is a crime akin to public nudity. Under the Kansas decision I note below, would public French kissing by two consenting adults qualify? Or would it only be considered "lewd touching" (the rubric under which the Kansas court categorized French kissing) rather than "lewd fondling"?

Remember, "public kissing is a public nuisance." (The only person I can credit for this is Carrie DuShey, though I don't know if she's the author.)

1 Comments
Consensual French Kissing Can Be Felony Near-Statutory Rape,

at least when it's "a lengthy, 'good,' 'deep,' 'passionate,' 'intimate,' 'romantic,' and 'memorable' french kiss in the bed of the defendant after an overnight stay, and the kiss achieved emotional arousal and was followed by professions of true love and repeated encounters involving the same conduct." So says the Kansas Court of Appeals, though without word on what you're allowed to do if there's no overnight stay, or if it was followed by professions of something other than true love.

This case involved a female high school teacher and her 16-year-old student; in Kansas, the age of consent is generally 16, but there's a special rule for teacher-student relationships when the student is 16 or 17. However, the same would apply to two 15-year-olds French kissing, which is also a felony; it's a lower-grade felony than full-on statutory rape, but it's a crime nonetheless. Presumably in states where the age of consent is 18, two 17-year-olds could be similarly punished, at least if the statute uses similar terms ("lewd fondling or touching").

Related Posts (on one page):

  1. Oh, and Why the French?
  2. Eugene Needs a Babysitter (?):
  3. Banned in Boston:
  4. PDAs a Crime?
  5. Consensual French Kissing Can Be Felony Near-Statutory Rape,
The Drudge Report is announcing:
BUSH GETS TWO:
REPORT: REHNQUIST RETIRES; TO BE ANNOUNCED TONIGHT
.
Stay tuned. The question is, who has better connections: Bob Novak or Marty Lederman? Or perhaps there is a Baltimore prosecutor named Larry Rehnquist who is retiring?

  UDPATE: I wonder if reading so much speculation about Rehnquist's retirement in the last few hours will change the way I talk for the rest of the day. Instead of going to dinner at a place that is supposed to be pretty good, I think I'll be meeting a very reliable source at an undisclosed business near the White House that well-placed contacts tell me has historically good tuna.

  ANOTHER UPDATE: Go home, people. No retirements tonight according to the White House. Not that the exact timing of the retirement mattters; if it's true that Rehnquist will retire next week, the White House will be busy all weekend either way. Meanwhile, the winner for best connections goes to . . . drum roll please . . . Marty Lederman.
27 Comments
Hate Crimes:

I know the standard arguments for treating "hate crimes," i.e., crimes in which the victim was chosen partly based on race, religion, or sexual orientation, worse than similar non-hate crimes -- they betray an especially depraved mental state, and they are more socially destructive because they make an entire identity group feel threatened. Yet while these arguments are not implausible, I've never found them terribly persuasive. I agree that the law may legitimately look to the criminal's motive, which is why we treat murder motivated by money differently from murder motivated by an understandable though still wrong desire for revenge, or murder motivated by compassion for the suffering; I just think that the motives in hate crimes tend to be not materially worse than many other bad motives.

In any event, I don't want to get into the theoretical argument much here, but to point to a specific example, and ask supporters of hate crimes laws what they think. My sense is that it shows that hate crimes, hateful as they are, are chiefly hateful because they are crimes, not because they are hate crimes; perhaps I'm wrong; but one way or another it seems like an interesting test case:

A homeless black man who allegedly killed a woman at a Westchester County mall told cops she "had to die" because she was white and he was fighting a race war, it was revealed yesterday.

"I never seen her before and I didn't care," Phillip Grant, 43, said of Connie Russo Carriero, 56. "As long as she had blond hair and blue eyes, she had to die."

The legal secretary and mother of two grown children was stabbed to death while walking to her car in the Galleria Mall parking garage in White Plains last Wednesday.

Grant['s] . . . shocking statements were videotaped by police . . . . He told cops he knew he would get caught for the crime, saying, "I want the death penalty. I want to die. But I wanted to kill somebody white first." . . .

Sounds like quite a depraved murder. But is it really more depraved than a murder committed because the killer felt like killing a rich person, an ugly person, or just a person? (If you think murder is a special case because all murders except those in which the motivation is somehow a mitigating factor should be punished severely, imagine that this involved a beating rather than a murder.) And I realize that such hate crimes might exacerbate racial tensions, but would prosecuting them as a special kind of crime ease those tensions, or exacerbate them more?

40 Comments
Is Matthew Yglesias A Member of the Federalist Society?: Will Baude takes a look.
16 Comments
More Rehnquist Retirement Rumor:

My sister-in-law's hairdresser has a good friend in Washington whose close friend's brother works in the Supreme Court cafeteria, and he says . . . .

No, actually, I'm told by someone who seems like a serious person that Bob Novak just said on CNN that, according to Novak's source, Rehnquist will retire as soon as the President lands, which would be near 5 pm Eastern today.

Take it for what it's worth.

Related Posts (on one page):

  1. More on Rehnquist:
  2. More Rehnquist Retirement Rumor:
21 Comments
I Like It When Slate Gets Bloody-Minded:

William Saletan writes:

Bin Laden's whole game plan is to turn the people of the democratic world against their governments. He thinks democracies are weak because their people, who are more easily frightened than their governments, can bring those governments down. He doesn't understand that this flexibility -- and this trust -- are why democracies will live, while he will die. Many of us didn't vote for Bush's government or Blair's. But we're loyal to them, in part because we were given a voice in choosing them. And if we don't like our governments, we can vote them out. We can't vote out terrorists. We can only kill them.

Can, should, and will. As they say, except for defeating the Nazis and the Japanese, killing the rapists or murderers who are attacking you, stopping North Korea from overrunning South Korea, and a few other things, violence never solved anything. (And, yes, I realize that violence alone rarely solves everything, and that some violence causes more problems than it solves -- but sometimes it's an important part of a well-balanced defense diet.)

28 Comments
Did Reading Law Blogs Help You Decide To Go to Law School?

I've gotten occasional messages from people who said that reading the Conspiracy, or other blogs, helped lead them to go to law school. Did that happen to you? If so, we'd love to hear about it in the comments. I leave to others to decide whether the blogs should be given credit for this, or given blame.

31 Comments
Mulhauser on Rehnquist: Over at the New Republic Online, Dana Mulhauser has a rather odd article on Chief Justice Rehnquist that manages to paint Rehnquist as egotistical and self-important without offering any real evidence to back up the claim. The article is mostly about Mulhauser's failed effort to write another article that is not directly about Rehnquist, but Mulhauser manages to turn that unrelated experience into speculation that Rehnquist has not yet announced his resignation because Rehnquist revels in the power of being the Chief Justice:
  Rehnquist knows his place in the world, and he revels in it. Which is not to say that a resignation might not be forthcoming today, tomorrow, or next week. But when retirement does call, Rehnquist will be fighting it all the way. This is not a man with any desire to rush from the limelight. This is a man who is Number One--and wants to make sure you know it.
  The Chief Justiceship of the United States is kind of a cool job, and my sense is that most people who have had the job weren't eager to leave it. But what's the evidence that Rehnquist "is a man who is Number One--and wants to make sure you know it"? Well, the main evidence Mulhauser offers is that we know Rehnquist graduated first in his class from Stanford Law School, even though Stanford did not publish class rankings. According to Mulhauser, this is likely evidence that Rehnquist "spread the word" so everyone would know how smart he is:
  In all likelihood, the only people with the knowledge and incentive to keep track of the rankings were the future justices themselves. If we know that Rehnquist was Number One and O'Connor was Number Three, then it is probably because they have spread the word.
  There's a different and more likely explanation for why we know this, however. According to John Dean's book about the Rehnquist nomination, The Rehnquist Choice, Rehnquist was nominated after President Nixon had floated a series of names that had been shot down as mediocrities. Nixon decided that he needed to find someone who everyone agreed was brilliant. Nixon was impressed with Rehnquist in large part because Rehnquist had clerked for the great Justice Robert H. Jackson and was at the top of his class at Stanford Law.

  When considering whether to nominate Rehnquist, Nixon specifically instructed his staff to find out whether Rehnquist had been #1 in his class or merely #2 or #3. Although it seems strange to modern ears, Nixon apparently thought it would be a significant political selling point if Rehqnuist had been #1 in his Stanford class. When Nixon announced the Rehnquist nomination, he made a big deal about how Rehnquist was #1 in his law school class at Stanford.

  Maybe Rehnquist bragged about being #1 in his class before his nomination to the Court. But I doubt it. The more likely explanation is that the one who needed to brag about Rehnquist's law school class rank was Nixon, not Rehnquist.
27 Comments
Italian Parliament votes for self-defense rights:

The Associated Press press reports that the Italian Senate has just approved a bill to better protect the self-defense rights of crime victims. "[T]he bill would allow people to shoot at thieves attempting to burgle homes, shops or offices, even if the target of the burglary was not judged under immediate threat, Italian daily Corriere della Sera said."

The principle of "proportionality" has long been misused against Italian crime victims. In a 2002 article, Carlos Stagnaro and I wrote: "The courts insist that the defense must be 'proportional' to the aggression — so that if a man is using his bare hands to commit rape, the woman cannot fight back with a gun. Likewise, if your home is invaded by a gang armed with knives, the courts will not allow you to use a firearm against them.

The campaign to reform Italian gun laws, which are hold-overs from the nation's Fascist era (as Stagnaro and I detailed in another article), has been in progress since Silvio Berlusconi's election in 2001. Given Italy's status as a prime target of al Qaeda, further reform of Italian laws, to enable decent people to protect themselves against sudden attacks, would be eminently sensible.



UPDATE: Several authors on the interesting and diverse Comments discussion have wondered how expansion of the Italian right to self-defense would help in the war on terrorists. As some comments note, citizens carrying firearms (or edged weapons) would not be of use in defending against a London-style attack, involving remote-control hidden bombs. Certainly true. In other situations of self-defense against Islamonazism, citizen possession of firearms can be very helpful, as illustrated by the experience of Israel and Thailand.

26 Comments

Thursday, July 7, 2005

Roberts on Roe:

This week Emily Bazelon wrote "The Front-Runners on Roe" for Slate, an article purporting to identify what is and is not known about potential Supreme Court nominees’ views on Roe v. Wade. The nominees are divided into categories – "hard-liners," "regulators," one "possible moderate," and "question marks," based upon their level of hostility to the landmark case.

Among the alleged "hard-liners" – those most opposed to Roe v. Wade — D.C. Circuit judge John Roberts tops the list. What is Bazelon’s evidence that Roberts would seek to overturn Roe? Only that Roberts did his job while working in the solicitor general's office in an avowedly anti-abortion administration. That's it.

In 1991, while Roberts was deputy solicitor general, he "co-wrote" the administration’s brief in Rust v. Sullivan, defending the abortion "gag rule" barring doctors in clinics receiving federal funds from discussing abortion. True to the administration’s position, the brief disavowed Roe, stating "We continue to believe that Roe was wrongly decided and should be overruled." On this basis, Bazelon places Roberts ahead of other short-listers who have strongly criticized Roe when speaking for themselves in judicial opinions or public speeches.

Perhaps anticipating the objection that Roberts was merely representing the administration's views, Bazelon notes the "stark language" of the brief Roberts co-wrote, but this hardly makes the case. Attorneys have an ethical obligation to zealously advocate the position of their clients. An attorney in Roberts position had an express duty to advance his client’s – the federal government's – policy position as effectively as possible. If this meant attacking Roe head on (after all, Roberts did win the case, even if Roe was not overturned), Roberts would have been derelict in his duty had he softened the claim. This is particularly important because in the case of John Roberts, we are not talking about some wild-eyed zealot. Rather, we are talking about one of the most accomplished appellate advocates in the nation. The idea that the specific language used in a legal brief advancing his client’s position establishes Roberts' personal views is quite a stretch, and is dangerously close to suggesting that one should impute the positions of former clients to the nominees (at least if they are presented in forceful terms).

It may well be that a Justice Roberts would seek to overturn Roe. By most accounts he is quite conservative, even if he is not known for provocative speeches and fiery dissents. But Bazelon does not support her claim – not even close. If she had other evidence of Roberts views, she should have included it in the piece. As things stand, the (lack of) evidence presented makes her characterization of Roberts as the most anti-Roe of Bush’s potential nominees to be quite undeserved.

UPDATE: In response to some of the comments below, let me add a few points. First, the only thing one can fairly infer from Roberts willingness to work as deputy Solicitor General in the Bush (41) administration is that he was in general agreement with the administration's legal philosphy. From there, however, one cannot assume that Roberts agreed with any particular administration position on any single issue.

Second, from Roberts willingness to co-author the Rust brief (rather than resign his position), perhaps one can infer that he does not share the same passionate attachment to Roe and constitutional protection for abortion rights as, say, the folks at NARAL Pro-Choice America. But that is a far cry from Bazelon's characterization of Roberts as first on the list of hard-liners who affirmative wish to overturn Roe. Maybe Roberts does wish to see Roe overturned, but maybe not. The most that can be said from Bazelon's evidence is that we don't know, and it was wrong for her to suggest otherwise without supporting the claim.

Third, Bazelon's characterization of Roberts is particularly hard to fathom when the relevant passage from the Rust brief is viewed in context. Courtesy of a VC reader, here is the relevant passage:

Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled. As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.
All this portion of the brief did was restate the longstanding position of the Bush administration (and the Reagan administration before that). It hardly reached out to go after Roe, and it is hardly evidence of John Roberts' personal views on the subject.

Related Posts (on one page):

  1. Abortion War Over Roberts?!?
  2. Roberts on Roe:
37 Comments
The Only Supreme Court Editorial You Need to Read: Lots of editorials and opinion pieces are being penned about the future of the Supreme Court these days, and it occurs to me that all of this writing is terribly inefficient. We could condense most of the different editorials and opinion pieces into a single essay, with one caveat: you just need to insert the proper words depending on whether the authors are liberal or conservative. Here is that single essay, with the bracketed sections containing the word or phrase to insert for liberal authors followed after the slash by the word or phrase to insert for conservative authors.
The Future of the Supreme Court
July 7, 2005
The Washington [Post/Times]

  The retirement of Sandra Day O'Connor presents a major opportunity for President George W. Bush. It is essential to our Nation that he choose her replacement wisely.
  Although nominated by Ronald Reagan, Justice O'Connor turned out to be surprisingly [enlightened/unprincipled]. Her jurisprudence was [pragmatic/random], which tended to frustrate [conservative wingnuts/believers in a written Constitution]. While Justices Scalia and Thomas voted to [turn back the clock/ follow the Constitution], Justice O'Connor frequently voted in a way that was quite [reasonable/result-oriented].
  News reports speculate that President Bush may nominate Attorney General Alberto Gonzales, Jr. to replace Justice O'Connor. If so, it will be a major [relief/disappointment]. While Gonzales has a proven record of loyalty to the President, he does not appear to be a [nut/conservative]. He [may not/ may] vote the right way in many cases, but [he is as good a nominee as we're likely to get/ I doubt it].
 Other individuals often named as possible nominees to replace Justice O'Connor are much [worse/better]. Nominating an [extreme/actual] conservative like J. Michael Luttig would signal to all Americans that the Constitution is [on life support/back].
  The conservative base has made its position loud and clear: it wants Bush to nominate a strong conservative to the Supreme Court. He should [ignore/listen to] them. The stakes are too high to do otherwise. The fate of our Constitution, and our Nation, hangs in the balance.
11 Comments
Conservatives and Evolution [Rewritten Post]:

I have become increasingly frustrated with the infatuation of many conservatives with "intelligent design" theory. Ben Adler has a series of Q&A sesssions with various conservative plenipotentiaries on The New Republic web site on the topic of evolution and intelligent design. While some of them acquit themselves well (by my subjective assessment), others do not. There is much nuance in their responses.

It is not precisely clear what Adler's intent is, whether it is to simply gather information or to try to embarrass conservative leaders. My strong impression is that it is the latter, as he invokes the old argument from authority at the header of the story to demonstrate this as the settled opinion of science and so intelligent design theory is non-scientific. If the effort was to embarrass, then with respect to some participants, it is evident that they should be embarrassed. I personally have little patience for the intelligent design argument. As for the political questions, given all the crackpot things taught in schools these days across the curriculum, and given that for some reason we choose to run our schools through political bodies (school boards) it is not obvious to me why this particular politically-motivated curricular innovation is really that much different from many other questionable curricular questions--unless it is because it is argued that "intelligent design" theory is religious theory rather than science (note that this is a claim, from what I can tell, that intelligent design theorists reject).

But if the problem is the influence of religious belief over science, then there is a more important point here that is relevant--the left (such as The New Republic, which conducted this survey) plainly have their own "religious" beliefs when it comes to scientific questions. If we understand "religious" in this context along the lines of "unquestioned truths taken on authority" that render "taboo" certain scientific topics of inquiry or which is impervious to rejection by evidence, then it is plain that in some areas the left has elevated "religious" belief over scientific inquiry by turning certain scientific questions into unquestionable articles of faith, rather than open questions subject for scientific inquiry.

Here's a list of questions on which I suspect that if asked of leading leftist intellectualspolitical leaders would reveal among some of them the triumph of their "religious" faith over scientific inquiry:

1. Are differences between men's and women's aptitudes solely a result of society and culture, or is there an evolutionary basis for some of those distinctions?

2. Do you think that schools should expose children to the scientific hypothesis that evolution has produced innate differences between men and women that partially explains differences in interests and aptitudes, or should they teach that all differences are socially-constructed?

3. Do you believe that Harvard's faculty was correct in censuring President Larry Summers for offering the hypothesis that differential performance by men and women in math and science achievement at elite universities may be in part the result of differential distribution of natural abilities in math and science between men and women at several standard deviations above the mean?

4. Do you believe that the theory of evolution applies to the evolution of mental traits as well as physiological traits?

The last question I refer to elsewhere as the question of "Neck-down Darwinism"--the idea that evolution applies only to the evolution of physical, but not mental, traits. I also want to make crystal clear that at all times I am referring to the question of whether men and women have selected-for evolutionary adaptations that make them different, not "better" or "worse" (in the same way that a female's ability to produce milk to nurse a baby is simply different, not better or worse than males who lack this ability).

My hunch would be that such a survery would reveal that the left's religious faith in political correctness and its trump over scientific inquiry would prove as powerful for some liberals as traditional religious faith seems to be for some conservatives. And to my mind, equally embarrassing.

As a policy question, there is one difference between religiously-motivated science on the left and the right may or may not be relevant. This is that the right's program is to add new (dubious) ideas to the educational system (i.e., add intelligent design to the teaching of evolutionary theory) whereas the left's goal is to censor and exclude investigation of certain (potentially explanatory) scientific hypotheses from the educational system. As a policy question, my sense is that most people ascribe to something like a "free marketplace of ideas" conceptualization of education, meaning that they would prefer to err on the side of including erroneous ideas if they are also countered by better ideas, rather than the exclusion of potentially true ideas. I personally would have no problem with excluding ID and including EP, but then I think that these investigations should be questions of science, not religion.

(show)

[For those looking for an accessible introduction to Evolutionary Psychology, I recommend "Evolutionary Psychology: A Primer" by Leda Cosmides & John Tooby.]

Update:

Rereading my original post and some of the Comments, I recognize that my frustration with both sides in this debate got the better of me and caused me to present my point in an suboptimal way that obscured my central point. So I have substantially rewritten the post with largely the same content and a more useful presentation. I have retained the original post as "Hidden Text".

Update:

Oddly, Pharyngula says that I critique a straw man--while turning my argument into a straw man. Obviously there is an interaction between nature and nurture, which I thought was quite clear in my post and in my article linked in my post. And if the left is willing to acknowledge this fact, then that is great. Then we are left with an empirical question of understanding how nature and nurture interact. On the other hand, my impression is that there are many on the left who continue to deny any role for nature and instead adhere to a model of social construction of many of these traits and attributes.

Pharyngula also says:

This does not equate to asking liberals about subjects on which scientists legitimately and vigorously disagree—this is something on which we can reasonably expect to find disagreement among pundits, disagreement which is not indicative of a disconnect with the scientific community.

***

As for evolutionary psychology, I'm a biologist, and I'm in the camp that says it's a load of poorly done hokum, so I'll forgive Paul Krugman if he should think EP is junk; I'll be less pleased if he says he agrees with it, but since EP does have many proponents in academe and is taught at places like Harvard, I'll just have to roll my eyes and be understanding.

Now this is quite a sweeping indictment of the field of evolutionary psychology--the entire field is "a load of poorly done hokum." I am not aware of of any substantial disagreement among knowledgeable scientists on the following concepts in evolutionary psychology (just to name a few): Hamilton's theory of kin-group selection, Trivers's theory of reciprocal altruism, the innate ability to acquire culture, the unusual degree of plasticity of human minds relative to other species, the parent-child bond, certain types of aversion and disgust, the incest taboo, an innate ability to detect intentionality, that our brains neural circuits were designed by natural selection to solve problems that our ancestors faced during our species' evolutionary history, the specialization of different neural circuits for solving different adaptive problems--just to mention a few.

It is my understanding that there is little disagreement, much less "vigorous" disagreement, among knowledgeable scientists on these particular points. Perhaps Pharyngula is aware of raging debates over Hamilton's kin-selection theory, fo instance, of which I am unaware. If so, it would be useful for me at least to see some actual critiques of the specifics of some of these core concepts in evolutionary psychology, rather than a blanket dismissal of a straw-man version of evolutionary psychology with little more than a dismissive hand-wave and tired appeal to a purported authority.

There are also certainly plenty of other issues in evolutionary psychology around the periphery on which there certainly is disagreement (which is why, where relevant, I conditioned my claims accordingly). But it is just as erroneous to assume that all questions are unsettled as it is to deny the presence of unsettled questions. To suggest that the entire field is "hokum" or that it is all up in the air or subject to disagreement is simply inaccurate.

Perhaps most curiously of all, Pharyngula seems to be fundamentally illiterate in statistics. It is nonsensical to talk about "counterexamples" to a description of a statistical distribution. If he understood statistics, he would recognize that the "room full of counterexamples" are actually what a statistician would refer to as "observations" or "data points" in the distribution beind described. The idea of a "counterexample" is fundamentally irrelevant to this problem.

Update:

In response to PZ Myer's assertion that evolutionary psychology is "poorly done hokum" and that there is "vigorous disagreement" about the entire field of evolutionary psychology I requested (quite reasonably, I thought) that Myers supply some specific examples of scientific disagreement over many of the core principles of evolutionary psychology, such as Hamilton's theory of kin selection. He has responded to this request for specifics that would support his claim that the entire field "poorly done hokum":

That semi-random list of principles is not the same as EP. It's like saying that because Michael Behe understands and agrees that natural selection has occurred, Intelligent Design is therefore the same as accepted neo-Darwinian theory. Picking a few points of concordance while ignoring the points of divergence between two ideas to imply a unity of support that is not there is, well, dishonest.

Nah, I'm plainspoken. He's lying. There is substantial disagreement in the biological community on evolutionary psychology, and to imply that this question has been settled in his favor is either gross ignorance on his part or simple fraud. Of course there is currently an ongoing battle over EP; check out the last link in my article.

I'm actually being kind by conceding that there is a legitimate debate on the subject. I know very few scientists who don't think Pinker is full of shit.

Ah, so now I understand--no need to respond to my request for analysis, because, well, "Pinker is full of shit." Why attack Pinker out of the blue when I never even mentioned him, rather than addressing the specifics I raised? Is Myers basing his entire attack of the field on that one book? Then, falling back (again) on the good old reliable argument from authority, he also links to an interview with philosopher David J. Buller, a critic of evolutionary psychology, who raises doubts about some aspects of the evolutionary psychology research program. Apparently citing an interview with this particular philosopher where he critiques some aspects of the evolutionary psychology research program sufficies to demonstrate that the entire field is "hokum" and that the entire field is open to question (it is not clear whether Buller is one of the scientists, actually he's a philosopher so he may not be included, who think that "Pinker is full of shit"--if so, that must be in his book because I couldn't find that particular quote in the interview he links).

If anything, it seems like the argument Myers is making is much closer to the ID argument that he critiques, than the argument I was making. As I understand the ID argument, it picks up on small holes in the theory of evolution or questions around the edges of the theory, and then proceeds to infer that the entire theory is open to question. Similarly, I have enumerated a long list of core (not semi-random at all) evolutionary psychology ideas on which there seems to be a substantial degree of agreement. Indeed, from what I can tell, he does not disagree with my assessment that there is widespread agreement on these concepts, he simply dismisses this agreement as irrelevant under his particular definition of evolutionary psychology. His response, as I understand it, is that this scientific agreement on these many core principles of evolutionary psychology is irrelevant because there are some unsettled questions around the edges of the research program, and so that therefore the whole research program itself is questionable and that there is controversy about the entire field. This seems much more similar to the arguments that I have read by ID theorists critiquing Darwinian theory, rather than the arguments that I was making. For the record, I don't know whether adherents to intelligent design theory also think that Pinker (or Darwin, for that matter) "is full of shit."

I don't see anything "dishonest" in saying--as I already did--that there is a substantial degree of many of the central points of evolutionary psychology but substantial questions remaining around the margins of the field, and that therefore we should proceed in a spirit of open inquiry and not shut off debate and study of particular hypotheses. Sure, I could be wrong (which is why I asked for specific critiques of the propositions I was citing), but that certainly seems a long way from "dishonest."

Or perhaps Myers's point is that rather than specific critiques we'll just have to take it on "faith" that evolutionary psychology is nothing more than "poorly done hokum" and to suggest otherwise is not only incorrect, but "lying" and "dishonest." But then again, that was my point in the first place wasn't it--that it appears that the problem with evolutionary psychology in some quarters is that it violates a deeply-held religious faith?

Finally, just to clarify again, when I use the word "different" I actually mean "different," not better, worse, or something similar. There is nothing normative in saying that men and women, on average and where relevant in statistical distributions, have differential abilities in the ability to lift heavy objects, throw rocks, nurse children, verbal acuity, or spatial-reasoning skills. This says nothing about the location of particular individuals within the distribution, but I suggest, could provide some explanation for the aggregate distribution of individuals along the distribution, such the paucity of women in the National Football League, for instance. But, then again, as mentioned Myers seems to be a bit confused on the concept of a statistical distribution (he thinks it is possible to provide "counterexamples" to a description of a statistical distribution), so who knows what he would make of the relative absence of women from the NFL.

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A Rehnquist Retirement Rumor seems to be making the rounds. I guess we'll find out tomorrow. Assuming the rumors are true, anyone want to guess if there will be a third?
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BBC Translation of Letter Claiming Responsibility.--

Following up my earlier post containing partial or complete translations of the letter claiming responsibility for the London bombings, here is the BBC's translation:

In the name of God, the merciful, the compassionate, may peace be upon the cheerful one and undaunted fighter, Prophet Muhammad, God's peace be upon him.

Nation of Islam and Arab nation: Rejoice for it is time to take revenge against the British Zionist Crusader government in retaliation for the massacres Britain is committing in Iraq and Afghanistan. The heroic mujahideen have carried out a blessed raid in London. Britain is now burning with fear, terror and panic in its northern, southern, eastern, and western quarters.

We have repeatedly warned the British Government and people. We have fulfilled our promise and carried out our blessed military raid in Britain after our mujahideen exerted strenuous efforts over a long period of time to ensure the success of the raid.

We continue to warn the governments of Denmark and Italy and all the Crusader governments that they will be punished in the same way if they do not withdraw their troops from Iraq and Afghanistan. He who warns is excused.

God says: "You who believe: If ye will aid (the cause of) Allah, He will aid you, and plant your feet firmly."

I Guess It Depends on Your Reference Point:

Bruce Ackerman, writing in the L.A. Times today:

In retrospect, Souter and Thomas have turned out very different. Souter has developed into a moderate conservative in the tradition of John Marshall Harlan, the great dissenter to many of the activist decisions of the Warren court, but a firm believer in the right to privacy and due process of law.

Thomas, in contrast, has established himself as the most reactionary jurist of the modern era. He is the only member of the high court who claims that the New Deal expansion of federal regulatory power was a "wrong turn," that the Constitution permits a state such as Utah to establish Mormonism as its religion, and that American citizens may be detained indefinitely on the say-so of the president.

Um, yeah, David Souter--definitely a "moderate conservative."

For the record, he labels O'Connor a "conservative pragmatist" which, from what I can gather, is somewhere between "moderate conservative" and "reactionary".

Related Posts (on one page):

  1. Finding Judicial Philosophy in Nonobvious Places:
  2. I Guess It Depends on Your Reference Point:
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Amazon's "Statistically Improbable Phrases (SIPs)":

Book listings on Amazon.com now list, among other things, "Statistically Improbable Phrases (SIPs)". For instance, the listing for Bernard Malamud's "The Natural," contains these SIPs: "bassoon case, dugout steps".

Can someone enlighten me as to why Amazon provides this particular bit of information?

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Text of the Letter Claiming Responsibility.--

[I edited the post below (without showing changes) to update it to include the information I was seeking with my original post.]

I was pointed to a translation of the full text of the letter claiming responsibility for the bombings in London. Thanks are owed to Back to Iraq for the translation and the posting of it:

Announcement on London's Operation 7/7/2005

Jamaat al-Tandheem Al-Sierri (secret organization group)
Organization of Qaeda't al-Jihad in Europe

In the name of God the most merciful...

Rejoice the nation of Islam, rejoice nation of Arabs, the time of revenge has come for the crusaders' Zionist British government.

As retaliation for the massacres which the British commit in Iraq and Afghanistan, the mujahideen have successfully done it this time in London.

And this is Britain now burning from fear and panic from the north to the south, from the east to the west.

We have warned the brutish governments and British nation many times.

And here we are, we have done what we have promised. We have done a military operation after heavy work and planning, which the mujahideen have done, and it has taken a long time to ensure the success of this operation.

And we still warn the government of Denmark and Italy, all the crusader governments, that they will have the same punishment if they do not pull their forces out of Iraq and Afghanistan.

So beware.

Here are portions translated by AP-Cairo and Spiegel Online.

AP in Cairo (tip to LGF):

“Rejoice, Islamic nation. Rejoice, Arab world. The time has come for vengeance against the Zionist crusader government of Britain in response to the massacres Britain committed in Iraq and Afghanistan.”

“the heroic mujahedeen carried out a blessed attack in London, and now Britain is burning with fear and terror, from north to south, east to west.”

“We warned the British government and the British people repeatedly. We have carried out our promise and carried out a military attack in Britain after great efforts by the heroic mujahedeen over a long period to ensure its success.”

“We continue to warn the governments of Denmark and Italy and all crusader governments that they will receive the same punishment if they do not withdraw their troops from Iraq and Afghanistan.”

SPIEGEL ONLINE:

"Rejoice, community of Muslims."

“The heroic mujahedeens today conducted an attack in London.”

All of Great Britain is now shaken and shocked, "in the north, the south, west and east."

"We've warned the British government and the British people time and again.”

"We've kept our promise and have carried out a blessed military operation."

"We continue to warn the governments of Denmark and Italy and all other crusader governments."

"Secret Organization — al Qaida in Europe."

I enabled comments for 2 days and I'll leave them on even though I received the translation I was requesting.

ADDITIONAL UPDATE: A new post contains the BBC's complete translation.

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Marketing, Self-Regulation, and Childhood Obesity:

The final agenda for the July 14-15 Joint FTC-HHS Workshop on "Marketing, Self-Regulation, and Childhood Obesity" has now been posted.

Who Owns ConfirmLuttig.Com?

According to this story by NRO's Byron York, the Leadership Conference on Civil Rights (LCCR) owns numerous domain names tied to potential Supreme Court nominees, including confirmluttig.com, confirmwilkinson.com, confirmalito.com, confirmgarza.com, confirmestrada.com, and confirmjones.com. But don't think this means they're likely to back a Bush nominee, as they own stopestrada.com and stoproberts.com too.

The LCCR is not alone, York reports. Both People for the American Way (PFAW) and NARAL Pro-Choice America have purchased numerous pro- and anti-nominee domain names, including stopgonzales.com. NARAL told York not to read too much into the purchase of the anti-Gonzales domain name, as they have not decided whether to oppose a Gonzales nomination. "We are hoping for peace and arming for war," a spokesperson said. PFAW, on the other hand, has already made clear it would oppose numerous potential nominees for the Supreme Court, including Judges Michael McConnell or Michael Luttig. Nan Aron of the Alliance for Justice has also said her group would seek a filibuster of Judge John Roberts, who most consider a mainstream conservative, for the Supreme Court.

CORRECTION AND UPDATE: As originally written, this post said that PFAW would oppose and urge the filibuster of "mainstream nominees such as the Honorable John Roberts." While I expect this would be the case, this was an error. It was Nan Aron of the Alliance for Justice, not Ralph Neas, who said her group would urge a filibuster of John Roberts when appearing on the Hugh Hewitt show. (Transcript here.)

The York NRO piece quotes a PFAW representative claiming no decisions have been made as to whether to oppose given nominees. Yet when PFAW's Ralph Neas was a guest on the Hugh Hewitt show, he said his group would oppose confirmation of McConnell or Luttig, but was not yet decided on Roberts. (Transcript here.) Of note, both the Neas and Aron interviews occurred when it was generally assumed that Chief Justice William Rehnquist, rather than Justice Sandra Day O’ Connor, would be stepping down.

I had confused the two interviews, hence the error. The post has been updated to reflect what Neas actually said on the Hewitt program.

Law and Terrorism Blog:

This morning's events in London are a sad reminder that terrorism is still with us (as it will be for some time). For updates on terrorism and related legal issues, I recommend the Law and Terrorism Page, a blog run by an enterprising law student named Gregory McNeal. It's highly recommended (and it uses Powerblogs to boot!).

Bob Novak Quoting Hamilton:

Novak writes:

. . . The Founding Fathers put the Senate "advise and consent" clause into the Constitution partly to combat cronyism. In Federalist No. 76, Alexander Hamilton opposed the president's nominees "being in some way or other personally allied to him." . . .

The first sentence is right, but the quote in the second is incomplete in an important way: Hamilton wrote (emphasis added),

[The President] would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him . . . .

Novak may in fact think that Gonzales has no other merit, or that (as his column suggests) Bush hasn't made enough of a substantive case for Gonzales' merits. But it's important to recognize that Hamilton, worldly politician that he was, never suggested that friendship (which often carries with it justifiable trust and respect) was an improper criterion for appointment -- only that it shouldn't be a sufficient criterion.

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Detention of Enemy Combatants:

U.S. detentions of enemy combatants, some people say, are troublesome because they are potentially of indefinite duration. America held enemy prisoners during World War II and earlier wars, but at least there the wars were over in several years; the war on terror could go on indefinitely. Isn't that unfair to the detainees? Try them or let them go, people say. Note that this argument is independent of the conditions of confinement, or of the argument that some of the detainees may have been seized by mistake; people say this even about prisoners who are definitely al-Qaeda, Taliban, or Iraqi insurgents.

This argument, I think, is a mistake. Let me briefly explain why.

The purpose of detaining enemy combatants is prevention. An enemy soldier wants to kill our or our allies' soldiers (and often civilians). We normally stop that by killing him. But when he surrenders, we prefer not to kill him: Killing the enemy generally isn't our goal, but just the means to the end of protecting ourselves and our allies — and if we can serve that end by locking a captured enemy soldier up instead of killing him, we do that (and are required to do that by the laws of war).

The thing that makes this logic work, however, is our ability to keep the man locked up. When we release him, he can go right back to killing our soldiers. What's more, it seems quite likely that he will: If he tried to fight us once, why wouldn't he do that again? We release ordinary criminals after some time chiefly because we hope that the term in prison has deterred them from repeating their crimes. But someone who obviously isn't deterred by the risk of being killed (the high risk, when you're a small force fighting the U.S. military) isn't going to be deterred by the risk of repeat incarceration.

Thus, we have three options: (1) Kill them on the battlefield, and protect our and our allies' soldiers and civilians. (2) Lock them up until we feel confident that the war is pretty much over (which indeed could be decades), and protect our and our allies' soldiers and civilians. (3) Or in a fit of misguided mercy — misguided because it is mercy to the bad that ends up hurting the good — let them out and allow them to again kill our and our allies' soldiers and civilians. Option 3 strikes me as deeply unsound, and not required either by justice or by international law.

But why not try them, then, some people ask? Well, as to enemy soldiers who were fighting in uniform as part of a disciplined force, there's nothing to try them for: Fighting as a soldier who complies with the laws of war is not a crime. (If one weren't fighting in a war, one would surely be committing the crime of attempted murder, but being a soldier who fights according to the laws of war is actually a good defense against that charge, subject to various caveats.) They aren't being locked up to punish them for a crime; they are being locked up to prevent their engaging in lawful but deadly attacks on us.

Enemy terrorists, spies, saboteurs, and others who were fighting out of uniform, attacking civilians, or otherwise violating the law of wars could be tried for those violations, and imprisoned (perhaps for life) or executed. But we have no obligation to do so: Given that we can hold lawful enemy combatants until the end of the war (which indeed may take a long time), we can at least do the same for unlawful enemy combatants, which are in no better moral or legal position than the lawful combatants are.

Now there may sometimes be pragmatic reasons to release prisoners even before the end of the war. Prisoner exchanges are a classic example. Likewise, prisoners who are very sick or disabled might be released as a humanitarian measure — but the measure is humanitarian precisely because it seems unlikely to endanger our or our allies' soldiers or civilians. (There's little that's humanitarian in helping an enemy fighter in a way that jeopardizes our fighters or noncombatants.) Some prisoners may be turned over for trial by other countries for violation of those countries' laws, if we think such a turnover is politically valuable, and if we think the prisoners will indeed end up being locked up for long enough by those countries. One can imagine other reasons as well.

But as a matter of law and of morality, it's perfectly proper to keep an enemy soldier detained (again, I set aside the separate questions related to conditions of detention, and related to confirming that the person is indeed an enemy soldier) until he is no longer dangerous to us, even if that means he'll be locked up for the rest of his life. It's that; killing them on the battlefield; or letting them go so they can kill us.

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Shirley Abrahamson on Tradesports:

Shirley Abrahamson is a new addition to Tradesports Supreme Court Nominee market (at least I assume that is the correct Shirley Abrahamson).

It isn't clear why she was added to the market though, as no one has actually made a trade on her.

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Gonzales and Political Gain With Hispanics:

My intuition that there is little political gain to be had with Court appointments is reinforced by this story during the filibuster of the Miguel Estrada nomination, which reinforces my perception about the low salience of these sort of political questions regarding the courts:

Mr. Bendixen's poll found that 28 percent of Hispanics support the nomination, while 11 percent opposed it and 61 percent weren't aware of the nomination or didn't have an opinion.

He said that, based on listening to some of the poll interviews, it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama "CHiPS" and is now a popular Spanish-language soap-opera star.

"Many of them think President Bush nominated Erik Estrada — I'd say a good third think that way," Mr. Bendixen said, adding that he heard one person say Mr. Estrada should be confirmed because he did such a good job playing a policeman on "CHiPS."

Republicans' own numbers confirm that most Hispanics aren't aware of the situation. A poll released last week of 800 Hispanics, taken by Alexandria-based Latino Opinions and not limited to registered voters, showed that just one-third were aware the Estrada nomination is pending and being blocked.

I suspect that the American public in general was even less aware of all this than those in the poll (of course, most Americans probably couldn't recall either Erik or Miguel). Of course, the Supreme Court is much higher-profile in the public's perception, but it does raise doubt in my mind about the likely political impact of such an appointment on Hispanic voters.

Related Posts (on one page):

  1. Gonzales and Political Gain With Hispanics:
  2. Supreme Court Nominations and Political Gain:
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Supreme Court Nominations and Political Gain:

Some, such as the Washington Post today, have argued that a possible Gonzales nomination forces the President to choose between two goals--making the Court more conservative vs. "reaching out" to Hispanics on behalf of the Republican Party.

This seems to reflect the conventional wisdom. With respect to the latter, is there any evidence that Supreme Court nominations actually result in any political gain? For instance, is there any evidence that Reagan's appointment of O'Connor has actually made women more likely to vote Republican? Or that Clarence Thomas's appointment helped Bush with black voters? Or that Scalia's appointment as the first Italian-American increased the Italian-American vote for Republicans? (I'm actually serious about this one--some of the Nixon tapes reveal that Nixon considered appointing an Italian-American, Polish-American (for obvious reasons, Nixon's mention of "a Pole" sticks in my head), or similar "ethnic" American to the Court for these political reasons). Or that appointing the promised southerner Powell, had any positive impact for the Republicans in the South?

I've genuinely looked for empircial evidence on this, but have never been able to find any evidence. I would welcome any info that anyone can provide.

My instinct is that these political calculations are largely invalid when it comes to the Supreme Court. I just don't think the public's thinking about Supreme Court Justices run this way. 65% of Americans can't even name one Justice (although of those who can be named, O'Connor and Thomas are the two most-frequently named). I am skeptical that the political party that appoints a "first" sees any long-lasting political effect.

My perception is that there is not much political gain available here. So to return to the purported political "tradeoff" mentioned at the outset, the President's choice here seems to be between a tangible political loss with conservatives versus an ephemeral or even imaginary political gain with Hispanics. Not to mention that such an appointment would leave the President potentially vulnerable to losing political support by being attacked as "anti-woman" for replacing the "first woman Justice" with a man.

Of course, this is just the political tradeoff, leaving aside the more important issue of who is the best person available. Recall that when last confronted with a similar monumental choice, President Bush ignored the conventional wisdom when he chose Dick Cheney as his running mate. In that choice, I think that Bush probably was aware that even though the conventional wisdom was that there is all kinds of political calculations in picking a VP, it is my understanding that there is little empirical support for the proposition that the VP choice makes much of a political difference.

If anyone has any empirical evidence on the political effect of prior "firsts" please send it my way.

Related Posts (on one page):

  1. Gonzales and Political Gain With Hispanics:
  2. Supreme Court Nominations and Political Gain:
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Living Ex-Justices:

Kevan Choset asks this question:

When Justice White died in 2002, there were no living ex-Justices. What was the last year [before then] when that was true?

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William O. Douglas on Racial Preferences:

From Gail Heriot on the Right Coast.

London Transit Bombings: Right now the TV news are reporting about 45 dead so far, about 1000 wounded (about 150 seriously), with four bombings reported (three subway, one bus). Press coverage is available at every news website, so I won't try to keep anything updated here.
Gallup Poll--Choosing a Supreme Court Justice:

Subject to all the usual caveats, an extensive discussion of a new Gallup Poll on the Supreme Court nomination. Lots of interesting stuff.

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New York Named Capital; Historic Deal Overturned!:

In yesterday's New York Times (July 6, page C15) Lynn Zinser reported on the frenzied final days in the race to be named Olymnpic host for 2012, noting the "frantic and expensive campaign among five national capitals" for the Games -- the five being, of course, London, Paris, Moscow, Madrid, and New York.
OOPS! That's carrying local boosterism a bit far, eh? New York lost its status as national capital when Hamilton and Jefferson cut their deal 200 years ago (H. got federal assumption of state debts, J. got a capital moved southward to the Potomac swamps) -- though many New Yorkers, in their hearts, believe that New York remains the capital of the United States, it's nonetheless a bit surprising to see the Times endorsing the notion. What, there were no editors around to catch the gaffe? [Though I note that the mistake was caught in time to fix the web edition of the paper by this morning . . .]

Guest-Blogging at PrawfsBlawg: I'm going be guest-blogging a bit over at PrawfsBlawg during the next week or so. I'll be posting my usual stuff here at the VC, but I plan to assemble some posts for PrawfsBlawg specifically on topics likely to be of interest to new and wannabe law professors. Tentative plans include posts on the hiring process, how to prepare for a job talk, and that sort of thing. If you're interested in that sort of thing, please stop by.

Wednesday, July 6, 2005

For the Court, Bush will pick a minority or a woman.--

In reviewing the betting at Tradesports (the Irish betting/trading outfit; on the left side of its main page, click on "Legal"), the probability that President Bush will nominate a Hispanic for the US Supreme Court is about half, with the probability that he will pick a woman about one-third. This suggests what should be obvious--that in filling Justice O'Connor's seat on the Court, Bush is highly unlikely to pick a white male.

The current (10:15pm ET) bid-ask spreads are:

1. Gonzales 25.0/31.0
2. Garza 23.1/24.1
3. Brown 13.1/13.7
4. Luttig 10.2/11.3

I was not surprised to see Justice O'Connor resign before Chief Justice Rehnquist (she is less tenacious and less vain), but since both had not fully followed their prior practices in choosing clerks for the distant future, I expected resignations from both sometime between late June 2005 and October 2006. Perhaps Rehnquist will wait only until Bush nominates O'Connor's successor or until that successor is confirmed. As to why Rehnquist might wait even if he intends to step down soon, perhaps he does not want to give Bush the freedom to cut a compromise deal on a pair of nominees. Perhaps he wants to see how nasty the fight will be, or how good Bush's judgment is in picking a replacement. Or perhaps Rehnquist is hoping for another justice joining the court in order to try to resurrect a legacy on federalism, in which case Rehnquist might hang on another year.

Personally, I think Rehnquist should step down now. He is the longest-serving justice currently sitting, having been appointed by President Nixon. (As I have argued before, I think justices should not serve for three decades on the Court (I favor 18 year terms).) Last, of course, Rehnquist was very sick this year.

UPDATE: Ann Althouse is suggesting that Gonzales may be the choice of the women in Bush's life.

Related Posts (on one page):

  1. For the Court, Bush will pick a minority or a woman.--
  2. Supreme Gerontocracy: Wall Street Journal Op-Ed on Supreme Court Term Limits.--
Federal Grand Jury Enforcement Day: In Washington, New York Times reporter Judith Miller has been sent to jail for disobeying a court order to testify before a federal grand jury to protect her source. In New York, Lil' Kim has been sent to jail for testifying falsely before a federal grand jury to protect her friends.
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Why Blogs Will Not Replace Law Reviews: I enjoyed reading the very interesting responses to my post on blogs and legal scholarship, including this post by David Zaring. I wanted to offer a quick follow-up on why legal blogs will not replace or seriously challenge traditional law reviews. Two major reasons:
  1) Blogs and law reviews are two totally different birds, with different time horizons and different purposes. The difference between blog posts and law review articles is kind of like the difference between short term and long term memory. Blog posts are about what happened today, yesterday, maybe last week. They are quick reactions to current events and current issues, and for the most part are forgotten a few days after they have been posted. In contrast, law review articles take the long view. They are meant to last. A good article should be just as relevant five or ten years after it is published than the day it is published. Blog posts may support and influence traditional scholarship, just as short term memory can work its way into long term memory, but the two are very different entities.

  2) The very long time it takes for traditional articles to be published is a scholarly asset; the insta-publish nature of blog posts is a scholarly liability. Law review articles provide the opportunity to refine and debate an argument over months if not years before publication, and that opportunity is a critical part of creating lasting scholarship with real depth. A typical law professor might start an article in the summer; work on it through the fall; share drafts with other colleagues in the winter; rework it in response to comments in February; send it out in March; present it at conferences or workshops in April; have it accepted at a journal in May; rework it in response to comments in June and July; start the editing proces in August; present it at another scholarly workshop in September; rework it and refine it several times during the editing process; and then finish up the final version in January. From start to finish, the process might take a year and a half. During that time, the author has many opportunities to test various approaches and settle on the best one, weeding out ideas that seemed good at first but didn't last. In contrast, a blog post is one person's idea at one particular time, with all the limitations that implies.
  How might blogs change law reviews, given that they won't replace them? Here are some preliminay thoughts. First, I expect that blogs will become the preferred format for short-term scholarship, and law reviews will begin to focus more exclusively on the long term picture. For law reviews, that means fewer case comments, and possibly fewer rushed-into-print articles on hot topics or recent cases that are in the news. Second, blogs will be a key way of advertising new law review scholarship, such as we see today with Legal Theory Blog. Third, and more speculatively, I wonder if the quick and punchy writing style that works for blogs will begin to find its way into more law review articles.
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More on Judicial Activism: A nice post here by Ed Brayton on judicial activism in which he cites an article by Keenan Kmiec in the California Law Review (vol. 92, page 1441 (2004)) last year called "The Origin and Current Meaning of 'Judicial Activism'" (apparently not available on line). While I have not read this article, I have met Keenan and he is one smart young dude.

Update: Several people have sent me the link to the Westlaw version of Keenan's article that is cited in this column by John Dean (of Watergate fame) [scroll about half-way down]. I am unsure, however, of the legality of this Hong Kong-based link to Westlaw--and would not want to rely upon John Dean as my sole source of legal expertise. If you have a knowledgeable opinion about this, feel free to email me. It would be useful to know.

Update: Princeton poli sci whiz Keith Whittington (who will be visiting at Texas law school this fall) writes to recommend this article: Bradley Canon, "Defining the Dimensions of Judicial Activism," Judicature 66 (1983): 237.

Related Posts (on one page):

  1. More on Judicial Activism:
  2. Judicial Activism, One More Time:
James Stockdale, Dead at 81: Vice Admiral James Stockdale, Ross Perot's running mate in 1992, has passed away. The New York Times obituary is here. (Hat tip: Crescat)

  Admimal Stockdale may have been the most unusual vice Presidential candidate of a major nominee in recent history. In an interview with Jim Lehrer in 1999, transcript available here, Stockdale told the remarkable story of how he came to be Perot's running mate:
  Well, first of all, I was asked by Ross Perot on a telephone call in March of 1992 if, since he had committed on the Larry King Show to becoming a candidate for president, to get on all 50 ballots, he said, now, he said, you know, "I just now came across the information, and about half the states have to have, or demand to have the - the candidate's name at the start." Each state runs its own show on that, I'm sure. But anyway, he said, "What I want to ask you is for a favor." He said, "Would you let me put in your name as a stand-in candidate, and then as soon as I can get a real politician to join me, I'll let you know and we'll erase your name." And we got stuck in the mud somewhere.
  Perot never bothered to tell Stockdale that he would be participating in the vice Presidential debate (in which Stockdale famously asked "Who am I? Why am I here?"). Stockdale found out he would be in the debate about a week beforehand, when he happened to call Perot and mentioned the debate in passing. From the transcript of the interview:
  ADMIRAL JAMES STOCKDALE: . . . [A]bout a week before the debate I called Ross. I seldom called him, but in this case I said, "You know, I'm in luck. Nobody has ever mentioned that debate, and it's too late to invite me, and I think that's as it ought to be because I'm not a politician." He said, "Oh, Jim, I forgot to tell you. Your invitation came here about three weeks ago and we accepted for you, and I forgot to tell you." So that was the preparation.
  JIM LEHRER: So you never sat down with briefing books, or didn't discuss this with Ross Perot in any way whatsoever?
  ADMIRAL JAMES STOCKDALE: I never had a single conversation about politics with Ross Perot in my life; still haven't.
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Barnett Study Debunked: Barnett Study Debunked- No Proof of GHG Climate Change.

Whew, different Barnett! This must happen all the time to people with more common family names.
Advice to the President of the Democratic Leadership Council,

at least assuming the DLC is trying to figure out how to get Democrats elected:

  1. President Bush's likely nominee is not going to be a "right-wing nut," despite how you describe the likely scenario. He or she is going to be a perfectly sane, thoughtful judge whose one great sin is having opinions you disagree with. Left-wing Democrats, or Democrats who are into politics, may enjoy your hyperbole. Most swing voters don't much appreciate it, I think, when one side calls the others' judicial picks "nut[s]." And the more you fall prey to think of your adversaries as nuts, the easier it will be for you to underestimate them and their allies, and to misunderstand those voters who agree with them.

  2. Don't think of the right wing as "paranoi[d]." First, it's false: The right wing is understandably concerned about the future shape of the Supreme Court, as is the left. Rational fear is not paranoia. Second, it's again bad for Democrats: Seeing your adversaries — and the voters who support them — as irrational or stupid makes it harder for you to fight them effectively.

  3. Don't call Justice O'Connor, whom many people (and not just her ex-law clerks) much admire, a "high-class hack" who "join[ed] conservatives when she thought the Court could get away with it, ducking when her political antennae sensed a losing issue." Again, it's both bad politics and not true: You can criticize Justice O'Connor substantively on many grounds (though I prefer that you do it politely), but there's no reason to think that she cared much about what "a losing issue" with which "the Court could[n't] get away with." The times when she joined liberals generally had little to do with what was a winning or losing issue for the Supreme Court; consider most recently her joining them in striking down the Ten Commandments, surely not a way for the Court to gain public esteem.

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Press Coverage of the Open Seat: If you're spending lots of time reading press stories of the judicial nominations process now that Justice O'Connor has announced her plan to resign, check out this very good post on the press and the Supreme Court nominations process by Lyle Denniston.
Independence Online Scavenger Hunt,

here. Two sample challenges, out of the 16 that the site poses:

1. Right or wrong, this war hero is famous for a toast. Five U. S. Navy ships have been named after him; find a picture of one firing a missile.

2. Before they became allies, this young hothead once broke a future President's sword in half after a climactic brawl. "I do not quarrel sir, but sometimes I fight; and when I fight a funeral follows," he is said to have boasted. Who knows if he would have become allied as well with the foe he killed with a direct shot to the heart? Find a picture of the gold certificate which bears his image.

Please do not post the answers, here or elsewhere, but instead e-mail them to dahliablack at earthlink.net .

Treason:

Sounds like the real thing, not hyperbole. Thanks to Rusty Shackleford for the pointer.

UPDATE: Just to clarify what I had hoped would be clear -- this sounds like the real thing based on what strikes me as the likely import of the assertions in the article, but of course we can't know whether it is the real thing until the matter is investigated further. Eric Muller, for instance, suggests that one of the people might have innocently gotten into a terrorist's (or aider-of-terrorists') taxicab, and points out that the article doesn't give conclusively incriminating information about the others. Naturally, one can't make a definitive judgment based on circumstantial evidence in a newspaper article. But it does sound like treason, though of course it's possible that the ultimate conclusion may sound different from the first report.

By the way, a quick summary of treason law as it may apply here. The U.S. Constitution says that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." This has been interpreted as requiring that (1) the offender be a U.S. citizen or resident, (2a) who participates in war against the U.S. (which includes domestic rebellions, and would surely include foreign ones, even if conducted by a nonstate entity) or (2b) who helps those who are in that war with the intention of advancing their cause. (There are possible defenses to this charge, for instance duress, if you can prove that you were forced to help the enemy -- to give the clearest example, hostages who are forced to make propaganda videos for the enemy aren't guilty of treason.)

Naturally, as Eric points out, mere "high-level ties to Abu Musab Zarqawi, the Jordanian terrorist and leading al-Qaida ally in Iraq" aren't literally enough for treason. But presumably the government is suspecting that the ties are more than just being a frequent backgammon crony of the man, and instead involve providing assistance, likely with the intention of helping Zarqawi's forces.

Treason is often a hard crime to prove, partly because of the constitutional requirement that "No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." Note, though, that this goes to whether a person may be convicted of treason, not whether a person is in fact guilty of treason. A person who committed treason is still a traitor even if he can't be convicted of the crime, just as (for instance) a person who committed murder but admits this after being acquitted is still a murderer even though the Double Jeopardy Clause prevents his retrial. Because of this, some traitors may end up being prosecuted under other criminal statutes that don't have such procedural requirements.

20 Comments
Why Do People Enjoy Kissing?

I think I know the reasons people enjoy sex -- both the proximate reason and the likely evolutionary reason (though I realize that the question there is quite complex, especially when it comes to the female orgasm).

But why do people enjoy kissing (I speak here of serious kissing on the lips, not just pecks on the cheek)? Is it purely social convention, or is it biological? Some people say that it's because there are lots of nerve endings in the lips, just as there are in the genitals; but I don't think that can be quite right -- one piece of evidence is that self-stimulation of the genitals is pleasant, but you never hear of people touching their own lips for sexual gratification.

If anyone actually knows the answer to this, I'd love to hear it.

(This post is prompted by Amber Taylor's Kissing Day post; thanks to InstaPundit for the link.)

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Assignment, for Science / Law Geeks:

We hear much about litmus tests for Supreme Court candidates.

(1) Red, the Republican color, is acidic. Blue, the Democratic color, is alkaline. Discuss.

(2) Litmus paper apparently turns red for pH < 4.5, which is to say 2.5 away from the moderate 7, but blue for pH > 8.3, which is only 1.3 away. Do litmus tests identify slight deviations from center to the left more than they do slight deviations to the right?

(3) Determine the pHs of the potential judicial nominees, from Gonzales (3.2) to Jones (-4).

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Judicial Activism, One More Time: In today's New York Times, Yale Law's Paul Gewirtz and Chad Golder have an op-ed that remakes an argument that has appeared in various forms by various authors in debates over the courts in the last decade: the claim that the conservative Justices on the Rehnquist Court are the real judicial activists because they have often voted to invalidate portions of a number of federal statutes. Gewirtz and Golder calculate the rates at which each Justice voted to invalidate federal legislation since 1994. They write:
  We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
  One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
  I addressed this argument in a 2003 essay in Legal Affairs in response to a closely related claim by Cass Sunstein. Sunstein claimed that the Rehnquist Court was more activist than the Warren Court because it had struck down more federal statutes than the Warren Court. I responded:
  While I agree that the conservative justices have not consistently embraced judicial restraint, this argument nonetheless strikes me as weak. First, using judicial invalidation as a proxy for activism suffers from an obvious flaw: If a legislature passes a plainly unconstitutional law, striking down the statute by applying established precedents reflects neither separation-of-powers activism nor precedent activism. (Cass Sunstein cures this problem by actually defining judicial activism as the act of invalidation, but, as noted earlier, I don't find this definition otherwise helpful.)
  Consider the Dickerson case that upheld Miranda. The Supreme Court's decision not to overrule Miranda required it to strike down a 1968 federal law Congress had passed to thumb its nose at the Warren Court. It's hard to see Dickerson as an activist decision: The court adhered to precedent and confirmed that a law long thought to be unconstitutional was in fact invalid. However, critics include Dickerson in the list of cases that are supposed to prove the court's conservative activism.
  Similarly, the focus on decisions striking down federal laws unfairly stacks the deck against the Rehnquist Court. The Warren Court's reform efforts focused primarily on invalidating state and local laws, rather than federal laws. Indeed, the Warren Court generally tried to expand the scope of federal laws such as Section 1983 and other federal civil rights laws. As a result, using judicial invalidation of federal laws as a quantitative measure of activism seems particularly unhelpful. Perhaps the more relevant quantitative measure would compare how often the Rehnquist Court and Warren Court have struck down legislative acts as a whole, or, better yet, how often they have overruled precedents. I suspect it would reveal a very different picture.
  It's also a mistake to assume that every Rehnquist Court decision striking down a legislative act features the conservative justices acting over the dissents of more liberal colleagues. Based on my review of the last Supreme Court term [October Term 2002 — Ed.], it's more often the other way around. I recently examined last year's Supreme Court cases looking for decisions in which the more conservative and more liberal justices disagreed about the constitutionality of existing laws or administrative acts. In cases that split the justices into relatively predictable ideological camps, I asked, which group voted to invalidate the other branches more often? The more conservative justices (William Rehnquist, Antonin Scalia, Clarence Thomas, and sometimes Anthony Kennedy and Sandra Day O'Connor) or the more liberal ones (David Souter, Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg)?
  Roughly a dozen of the court's 83 cases involved fairly clear ideological splits on the scope of constitutional rights. (Many cases did not involve constitutional questions at all, and those that did usually failed to produce neat camps of left versus right.) Within the dozen or so cases, however, the more liberal justices favored striking down the other branch of government almost twice as often as the conservatives did.
  Jack Balkin adds some somewhat similar thoughts here. Thanks to Ex Post for the link.

Related Posts (on one page):

  1. More on Judicial Activism:
  2. Judicial Activism, One More Time:
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Supreme Court Justices:

In the last couple of days, I for the first time learned about a woman who was apparently nearly nominated for the Supreme Court before Justice O'Connor, and a likely homosexual or bisexual who was nominated for the Supreme Court. Who were these people? I will post the answer in the comments thread, so think about it before you read the comments.

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FTC Report on Gasoline Prices:

The FTC has released its report on gasoline prices. The Press Release and link to the report (as well as Comm. Liebowitz's concurring statement) can be found here.

From the Press Release:

One of the Report’s conclusions is that over the past 20 years, changes in the price of crude oil have led to 85 percent of the changes in the retail price of gasoline in the U.S., while other important factors have included increasing demand, supply restrictions, and federal, state, and local regulations such as “clean fuel” requirements and taxes.

Some interesting findings in the report(my idiosyncratic list of things I found interesting, there's a lot more in the report):

1. Increased demand for world oil supplies, especially as the result of rapid economic growth in India and China, have dramatically increased the demand for crude oil. Crude oil prices are 85% of the cost of gasoline. World demand for other raw materials that form the basis for expanded growth in developing economies, such as steel and lumber, has also risen.

2. For most of the past twenty years real average annual gasoline prices, including taxes, have been lower than for any time since 1919.

3. In some situations, environmental regulations that require the use of boutique fuels lead to increased price variability, especially in California.

4. The presence of "Hypermarket" sellers of gasoline in a market, such as Wal-Mart and Safeway, tend to reduce prices because of their lower costs.

5. In 2004, the average state sales tax on gasoline was $0.225 per gallon which increases the cost of gasoline (duh).

6. Bans on self-service sales, such as in New Jersey and Oregon, increase prices (duh again).

7. Bans on so-called "below cost" sales of gasoline appear to raise gasoline prices by chilling competition. (I commented on Maryland's vigilance in protecting its citizens from low gas prices some time ago).

The whole report is long, but well worth reading for anyone interested in this issue.

Related Posts (on one page):

  1. More on Boutique Fuels and Gas Prices:
  2. More On Gas Prices:
  3. FTC Report on Gasoline Prices:
7 Comments
Quick Questions re NASD Arbitration (help requested):

If you're not an attorney who does securities litigation, you probably want to skip this post.

I'm representing my dad tomorrow in an NASD Securities arbitration, and could use some help with the following questions:

(1) Respondents have six witnesses, four of whom they want to testify by telephone. They have provided no reason why these witnesses should not appear live (though they do work 500 miles away from the site of the hearing), and neither my dad nor I have ever heard of three of them (they were not identified in the witness list). Respondents have provided no affidavits or any other information about their testimony. I'd like to object to their testimony, given that the arbitrators won't be able to judge their credibility easily by telephone. Is it too late (they gave me their witness list over thirty days ago)? Are telephone witnesses standard, or even permitted outside of extraordinary circumstances, in arbitration?

(2) I'm looking for a precedent stating that the Respondent's "ten day rule" ("Reports of execution of orders and statement of your accounts shall be conclusive if not object to, in writing, within ten days," "This statement shall be deemed correct unless [the Company] is notified in writing within 10 days of receipt") do not apply to allegations of misrepresentations, breaches of fiduciary duty, breach of contract, and the like, specifically with regard to statements made stating that particular stocks "couldn't go lower." Respondents cite Goldberg v. Kidder Peabody & Co., Inc., 991 F. Supp. 215, 219 (S.D.N.Y. 1997), which they claim holds that my father needed to object within ten days of receiving his first statement in which such a stock did go lower. In my view, this case only applies if a broker actually promised to make up for losses in a stock, which is not the allegation here. The arbitrators denied a motion to dismiss on this basis, but invited Respondents to reargue this point at the end of the hearing.

Responses may be sent to dbernste at gmu dot edu. Thanks.

AP My Error About the Supreme Court:

NOTE RETRACTION BELOW!

A fellow lawprof points to this excerpt:

The last time there were simultaneous vacancies at the court was 1971, when Justices Hugo Black and John Marshall Harlan retired in September, about a week apart. Rehnquist, then a Justice Department lawyer, urged the Nixon administration to move fast in replacing them. After Nixon's first two choices were harshly criticized, he named Lewis Powell and Rehnquist.

Unless I'm mistaken, though, the harsh criticism of Nixon's first two choices happened in 1969 and 1970, after Justice Fortas resigned and Clement Haynsworth and Harrold Carswell were rejected. Both Powell and Rehnquist were nominated in October 1971, and confirmed in December 1971.

Not a huge error (smaller than this one, for instance), but still a reminder to be careful when reading even highly reputable news sources, even when they are written by specialist journalists who have a generally fine reputation.

UPDATE: Except the error seems to be mine! Fellow lawprof Mark Tushnet reports:

The AP reporter was (almost certainly) referring to the brouhaha over Herschel Friday (for Black's seat) and Mildred Lillie (for Harlan's). Neither was officially nominated (or, as is the current practice, noticed officially as a "proposed nomination"), but Nixon's consideration of them was widely leaked and generated the opposition to which the AP reporter referred. John Dean's book, The Rehnquist Choice, goes through what happened in excruciating detail.
Aha! My apologies to the reporter, and to my readers, and my thanks to Mark for setting the record straight. Remember: Don't believe everything you read . . . .

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Checkpoint Charlie: Checkpoint Charlie (seen here) was the famous exit from West Berlin (formerly the American Sector) to East Berlin (formerly the Soviet Sector). I now read here that a memorial to the 1065 persons shot and killed while trying to escape to freedom is being dismantled. Reading this reminded me of my trip through Checkpoint Charlie in 1982. I can tell you what it felt like to drive through. It felt scary. At the time, it reminded me of how I first felt when, as a prosecutor, I went into the prisoner section of the Cook County Jail to run a line up. Even with 2 burly guards on my side (assumedly), it was pretty scary to hear the door shut behind you. Going through Checkpoint Charlie into East Berlin felt the same way.

Besides being nervous at first, the other thing that struck me immediately was the battle damage from WWII still showing on most concrete structures. Bridges, abutments, etc. It was like the war had ended two months before, not 35 years earlier. It seemed like the WWII backlot of Universal Studios. Our West German taxi took us to the best hotel in town (built by a western firm) where we had a mediocre lunch . I recall that the wine came uncorked in a bottle that had presumably been refilled. When it was empty we saw an insect encased in the glass bottom of the bottle. Our strong suspicion is that this was a special gift for the Americans, but perhaps it was commonplace in the East.

When we entered the East, we were forced to exchange our money for East German currency. There was nothing to buy. Nothing, that is, besides Marxist tracts in German. I did finally find a little glass sculpture of the landmark communications tower. It was actually very attractive and I was sad when it broke years later in my move to Boston University. I wished then that I had bought more than one as I left the East with unspent currency.

We had let the cab drop us at the hotel so we could walk around the city and make our way back to Checkpoint Charlie on foot. Near the end of our travels, we visited the Brandenburg Gate from the Eastern side and posed for pics while the East German guards watched with their submachine guns. (When we arrived at the airport in West Berlin, it was startling to see the West German police with their submachine guns.)

I removed my sweater for the pictures, and it was not until I got back to Checkpoint Charlie that I realized that I had left it at the Gate. I hoofed it back alone, never expecting it to still be there. When I arrived, I looked around. One of the guards pantomimed putting on a sweater with his arms. I nodded. He went to a large wooden box and opened it, retrieved the sweater from inside and handed it to me.

I found it a touching end to a highly emotional and memorable day. I have been back to Germany many times since then, and will be returning to Gummersbach (near Koln) in three weeks. But I have yet to return to Berlin. I am told it has changed a lot, and I believe it. But somehow I don't want to lose the memory of how dynamic the island of West Berlin felt in those days, and the stark contrast between its color and the black-and-white of the Eastern Sector. For me, Checkpoint Charlie was like a time machine, as well as a portal into a "Cook County Jail writ large."

Update: Chris Muir of daybyday.com sends along this cartoon about the same story.

10 Comments

Tuesday, July 5, 2005

Executing the Treaty Power: My friend Nick Rosenkranz has posted a copy of his recent article, Executing the Treaty Power, which was published in the April 2005 Harvard Law Review. I knew absolutely nothing about the treaty power before reading this article, but I found the article a terrific read, very provocative, and (at least to this outsider) quite persuasive. Whether you agree with it or not, it's top-shelf legal scholarship. From the introduction:
  The most important sentence in the most important case about the constitutional law of foreign affairs is this one: "If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." The sentence is wrong and the case should be overruled.
  The name of the case is Missouri v. Holland, and what that sentence means is that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would lack such power in the absence of the treaty. In other words, the powers of Congress are not fixed by the Constitution, but rather may be expanded by treaty. And if the Restatement (Third) of the Foreign Relations Law of the United States is correct that there are no subject-matter limitations on the scope of the treaty power, then it follows from Missouri v. Holland that treaties may increase the legislative power virtually without limit.
  . . .
  This Article endeavors to demonstrate that Missouri v. Holland is wrong. Part I describes the three great issues raised by the treaty power, examining them through the lens of Missouri v. Holland itself. Part II argues from text and structure that Justice Holmes misunderstood the relationship between the Treaty Clause and the Necessary and Proper Clause. Part III addresses Professor Henkin's counterargument from constitutional history and demonstrates his error. Part IV considers the practical implications of this thesis and the public choice arguments for and against it. The Article concludes that the crucial sentence from Missouri v. Holland is flatly wrong: treaties cannot expand the legislative power of Congress.
  Thanks to Larry Solum for the link.
5 Comments
Bill Patry Writes about Justice O'Connor,

salmon, copyright, and other things, here.

1 Comments
Query on Blogs and Legal Scholarship: As regular readers know, I'm very interested in how blogs are changing legal scholarship. I've blogged about it a bunch of times, and I'm now thinking about writing a short essay about this issue for a general law review.

  It seems appropriate, given the topic, that I would start by asking blog readers to offer their own thoughts in the comment section on how blogs have changed their own access to, time with, and use of legal scholarship. It's a highly unscientific and biased way of canvassing opinion, obviously, but I just want to get some ballpark ideas on whether and how blogs have changed the ways that law professors, law students, and lawyers learn about and discuss scholarly ideas and developments in the law.

  My request, then, is for interested readers to post something in the comment section (or, if you prefer, e-mail thoughts to me at orinkerr at yahoo.com) on how blogs have changed the ways in which they find out about and discuss new works of legal scholarship, as well as how blogs have changed how or whether they read different law reviews. Have blogs, whether on their own or in combination with sites like SSRN, made a difference to you?

  Oh, and if you don't like legal scholarship or you're not a lawyer, no need to leave a comment saying so. This one is more for the legal geeks among our readers.
23 Comments
The Sex Market as a Driving Force in Technology Development:

People have long claimed that the growth of the VCR market was in large measure driven by porn; the same might be true as to some high-speed Internet services, I suspect. Now Slate asserts that:

Vibrator innovation was in fact a driving force behind the creation of the small electric motor. . . .

Slate has a fascinating item today on the history of the vibrator.

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Comments Threads as Parties:

One of our readers took exception to our comments policy (see the bottom of this page for its text) as being "inappropriate." Oddly, he was complaining about the policy itself, not its application. This suggests that he thinks it's inappropriate to ask people to be "as calm, reasoned, and substantive as possible," to "avoid rants, invective, and substantial and repeated exaggeration," to "[s]tick[] with substance," or, "[i]f you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, [to] rewrite your post before hitting enter." Those seem like pretty reasonable requests to me.

But in any case, this prompted me to speak a bit more explicitly about how I see comment threads. To me, a comment thread on our site is like a party to which we're inviting you. Thanks to technology, we don't need to worry about our beer and chips budget, or about your breaking our furniture, and you don't need to be stymied by travel time or your having another party that evening. The party could thus (in theory) be much larger than a typical party we'd throw in real space.

Still, we throw parties because we think they would be fun for guests; and a few guests can sometimes ruin this fun (or at least as best we, as hosts, can guess) for other guests. Chiming into a conversation with insults is one way. Coming across like a crank, or ranting and throwing around exaggerated invective, is another. Or so we think based on our experience as party planners.

That's why some guests don't get invited back to future parties, and occasionally even get thrown out of the current party. Same thing goes for comment threads — if a host thinks that a commenter is making the party less fun, the host doesn't have an obligation to keep having the guest over.

Now naturally sometimes the host might get it wrong, and kick out a guest who only looked like a crank, but was really a Valiant Seeker of Truth who sees the world much more clearly than the host and the other guests. The natural check on this is that the host wants to be known as throwing interesting parties, and if he kicks out people who have important things to say, his reputation may suffer; plus it takes time and effort to kick someone out. Yet sometimes despite this, the host errs.

But remember, (1) it's the host's party, and (2) hey, it's only a party. If the host's narrow-mindedness led to your being shown the door, what have you really lost? Not much — it's a big Internet out there, you can go to lots of other parties, and you can even throw some parties yourself.

If you're a thoughtful visionary with lots of interesting things to say, people will likely be eager to show up to your shindigs. On the other hand, if no-one comes to your parties, and people don't want you at theirs, you might think a bit about the reason why: Might you not be using enough deodorant? Might people be alienated by your rhetoric, and as a result miss your substance? If they think you're a crank, might you actually be a crank, or at least someone who doesn't take the trouble to avoid seeming like a crank?

Of course, maybe you really are a genius, and because of our foolishness, self-interest, or conventional thinking, we're not seeing it. Indeed, they laughed at Columbus (well, except the ones who paid him, and who sailed with him, and . . .). But they also laughed at Bozo the Clown. On the Internet, you have lots of opportunities to prove that you're the former and not the latter. Go to it. Build yourself a great reputation and make us feel sorry that we struck you off our guest list.

Related Posts (on one page):

  1. Comments and Civility:
  2. Comments Threads as Parties:
28 Comments
Peter Rubin on Filibuster Deal:

I suspect that there's not much about the coming Supreme Court confirmation battle on which Peter Rubin and I will agree, but the fact that the filibuster deal will have little binding force on the nomination circus seems to be one.

Commenting on the same Washington Post story I referenced this morning, Peter Rubin argues on the ACS Blog that the impending Supreme Court nomination showdown makes clear that the filibuster deal was an "enormous win for the Democrats":

The Post’s analysis, though, does not withstand scrutiny. Everyone knew at the time the compromise was struck that “extraordinary circumstances” were not defined; and everyone knew there might be a dispute about whether those words included, for example, replacing a moderate Justice with a very conservative one who would tip the Court’s ideological balance with respect to certain fundamental constitutional values. * * * This leaves Democratic members of the Gang of 14 to decide for themselves what they believe qualifies as extraordinary circumstances, and to act as their consciences dictate with respect to the filibuster.

Hmmm, sounds familiar.

Rubin argues that the deal is a net winner for the Democrats, because it enabled them to preserve the filibuster until a more fortuitous time, in that his view is that the public will not stand for "changing the rules in the middle of the game" when it comes to the Supreme Court, and that the time for Republicans to strike would have been when the issue surrounded lower-scrutiny appellate court nominees.

He could be right, and I suspect neither of us have a great sense of how this would all play out across the country if the constitutional/nuclear option resurfaces, but my personal intuition runs the other way. My intuition is that to the extent that most people care, they will be more prone to seeing a debate over the filibuster and procedural gamesmanship as inside the beltway silliness. I think that the American public generally are not "proceduralists" when it comes to evaluating government activity and don't care too much about this stuff. Witness the hostility toward Gingrich in the 90s government shutdown, the popularity of guys like Arnie and Jesse Ventura in promoting themselves as a problem-solvers impatient with procedural obstacles, and the longstanding of Perot-types who oppose "gridlock" (otherwise known as bicameralism and separation of powers) and special interests. So, notwithstanding the possible fairness appeal of "don't change the rules in the middle of the game," my personal intuition is that a line of attack that tries to defend the filibuster in the context of a refusal to hold an up or down vote on a Supreme Court nominee strikes me as a loser for the Democrats.

In part this is because, as I noted some time back, the longstanding American tradition has been that where the filibuster has been abused to systematically frustrate the majority (such as with anti-lynching or civil rights legislation), rather than being used simply to promote true extended debate by the minority, my reading of the history has been that the response has been to change the filibuster rules to prevent future such occurrences.

Majority vote, up or down, has a very deep claim on the American imagination.

So, leaving aside whether it is actually an unfair changing of the rules in the middle of the game to invoke the constituitonal/nuclear option in the event of a filibuster of a Supreme Court nominee, my intuition is that is an argument that won't win with the public if it comes to that. It seems hard for me to see how it could be a winner for the Democrats to go to the public with the issue that a new Supreme Court term should start one Justice down the confirmation of a successor should be delayed because they oppose an up-or-down vote on a nominee.

I think the proceduralist arguments were losers when the Republicans made them when the Democrats controlled the Senate (after the Jeffords switch) and I suspect that they would be losers for the Democrats now. For better or worse, I suspect that the public has little patience for these issues when they seem to stand in the way of getting things done.

And while we're at it maybe we can come up with a new neutral term for whatever the "___ option" is.

Update:

Doh--A Commenter reminds me that O'Connor's resignation is effective as of the confirmation of her successor, so there wouldn't be a vacancy, just a delay in the confirmation of a successor. I apologize and have changed the post text accordingly.

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My New Favorite Website:

Is JerryKopel.com, my father's website. After serving for 22 years as a Democratic Colorado State Representative, my father returned to his original profession, and in 1993 began writing a weekly newspaper column on Colorado and national issues. The website collects those columns. Although the website is still a work in progress, it's up-to-date for all his 2005 and 2004 columns. His latest pieces criticize the flag-burning amendment, mock the new Colorado state quarter, and explain how the state legislature's self-indulgence on bills filed after the proper deadline left the Democratic legislature helpless against the veto pen of Republican Governor Bill Owens.

Stuntz on Powell and O'Connor: Lawprof Bill Stuntz has a fascinating piece at The New Republic on judicial uses of power, his experience clerking for swing vote Justice Lewis Powell, and what it suggests to him about the tenure of Sandra Day O'Connor. An excerpt:
  I clerked for Powell his next-to-last year on the Court, and I remember listening to him talk about his early days as a justice. He was terrified. He thought he didn't know enough, wasn't smart enough, wasn't nearly wise enough to do the job. It shows in his early opinions, where he regularly writes of the need to defer to other institutions, and ultimately to the voters. I don't know Justice O'Connor, so I can't swear that she felt in 1981 the way Powell felt in 1972. But I bet she did. As with Powell, you can see it in her opinions in the early 1980s: the tentativeness, the discomfort with hurling judicial thunderbolts.
  But that sensibility didn't last, for either of them. Before long, Powell was deciding national policy on affirmative action, abortion, and the death penalty--and loving it. O'Connor's has been the decisive voice on all those subjects, plus federalism and much of the law of criminal procedure. In Bush v. Gore, she came close to deciding a presidential election, as bold an exercise of judicial power as anything in the last half-century. For all the talk about O'Connor's lawyerly virtues--people said the same thing about Powell--Bush v. Gore shows that (as my Harvard Law School colleague Heather Gerken likes to say) she is more politician than lawyer. So was Powell.
Thanks to How Appealing for the link.
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Vic Fleisher Joins Conglomerate:

It's official.

Consultation and the Clinton/Hatch Example: Lots of blogs are linking to this post at ThinkProgress.org recalling that President Clinton consulted with Republican Senator Orrin Hatch when Clinton was looking to fill the seat left open by the retirement of Justice White in 1993. Some suggest that this example shows how a President should treat the opposing party's ranking member of the Senate Judiciary Committee. Clinton consulted with Orrin Hatch and took Hatch's recommendations seriously, the thinking goes, so Bush should consult with Patrick Leahy and take Leahy's recommendations seriously.

  The difficulty with this comparison is that it leaves out the broader context of Clinton's decisionmaking process. Here's my recollection, aided by some Westlaw searches and David Yalof's Pursuit of Justices:

  According to press reports at the time, Clinton very much wanted to nominate a Warren-style liberal to the Supreme Court. Clinton wanted to find a free-thinking politician for the Court instead of a technocratic career judge. He flirted with the idea of nominating New York Governor Mario Cuomo, but Cuomo eventually withdrew from consideration. Clinton then asked Richard Riley, Secretary of Education and the former Governor of South Carolina, but Riley declined. Clinton then wanted to name Bruce Babbitt, the Interior Secretary.

  During the many weeks in which Clinton was weighing his options, however, the need to find someone who would be easily confirmed grew paramount. (I'm not sure, but I gather it was at this stage that Clinton consulted with Hatch.) Clinton had encountered tremendous opposition to some of his executive branch nominees in the early months of his Administration, and the failed nominations of both Zoe Baird and Kimba Wood for Attorney General and Lani Guinier for head of DOJ's Civil Rights Division had caused his administration considerable political embarrassment. Further, by June, almost three months after Justice White had announced his retirement, the media was ridiculing Clintion's inability to even settle on a nominee. Under political pressure, Clinton decided against nominating a Warren-style liberal and instead opted to nominate a Hatch-approved more moderate nominee who could be easily confirmed.

  Here is how Thomas Friedman described Clinton's thinking on the Ginsburg nomnination in the June 15, 1993 issue of The New York Times:
  The President's original aspiration was to name a political figure, with real-world experience and a "big heart," not automatically another federal judge. But in part because some of those who fit that description, like Gov. Mario M. Cuomo of New York, turned him down, and in part because of his political predicament, those criteria had to be subordinated.
  What dominated was his need for a nominee who was risk-free, one who would not only sail smoothly through the Senate but might eclipse some of his most recent embarrassments, reconfirm his move to the political center and give new momentum to his administration.
  Clinton ended up nominating Ginsburg over Breyer for Justice White's seat, in part because Breyer had not paid social security taxes on a domestic worker. (This had been Zoe's Baird's problem, and the White House wasn't sure that they wanted to spend the political capital to get Breyer confirmed in light of it.) When Justice Blackmun retired the next year, however, Clinton nominated Breyer. Breyer was not Clinton's ideal of a model judge, either. Consider Jeffrey Rosen's description of President Clinton's nomination of Breyer to fill Blackmun's spot, from the June 6, 1994 issue of The New Republic:
  Of course it was painful to watch Clinton's distress on May 13 as he announced the selection of a man who was plainly not his first choice. Though Clinton remained sentimentally attached to the model of a big-hearted politician in the tradition of Earl Warren, he forced himself, for want of a politically or medically viable alternative, to choose the antithesis of his own ideal.
As the U.S. News & World Report covered the Breyer nomination in its May 23, 1994 issue:
  Breyer was never the president's first choice. In 1993, he was a runner-up when Clinton selected Ginsburg. And Clinton first hoped Senate Majority Leader George Mitchell would succeed Blackmun. The president also considered Interior Secretary Bruce Babbitt and Judge Richard Arnold of Arkansas but decided late Friday afternoon that the Breyer nomination posed fewer questions and less controversy in the Senate confirmation process.
  The same article notes that at least some liberals were upset with Clinton's choosing an easily-confirmable nominee over a more ideologically pure one:
  Some liberals were disappointed that Clinton did not tap a reliable vote for their cause. Abortion-rights leaders expressed concern about Breyer's murky record on that subject. And consumer advocate Ralph Nader assailed Breyer as "hostile to regulatory law enforcement." Nader charged that Clinton had "locked the court into an anticonsumer, antiworker, antienvironmental mode," and predicted that various labor unions and other liberal groups would oppose Breyer.
  In sum, it's true that Clinton did call Hatch at some point during the process; Hatch did suggest to Clinton that Breyer and Ginsburg could be confirmed; and Clinton did in fact nominate Ginsburg and Breyer. But my sense is that Clinton's consultation with Hatch was a matter of political necessity more than anything else.
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The Case for Kozinski:

I can't think of a better Supreme Court nominee than Alex Kozinski of the Ninth Circuit. He's a brilliant judge, and has written very influential opinions on everything from the admissibility of expert testimony to antitrust. He's a judicial conservative, but with exactly the sort of libertarian instincts that are desireable during a prolonged War on Terror. He's respectful of property rights and federalism, but would be very difficult to pigeonhole as a "judicial activist." He has spent the past twenty years out of politics and outside the Beltway, which should be a huge plus for any nominee (and, contrariwise, a good reason not to appoint Luttig, Gonzalez, and others). He'd splinter left-wing opposition, because it's hard to imagine the ACLU opposing such a champion of the First Amendment. And he has a very compelling personal story, as an immigrant son of Romanian Holocaust survivors.

Kozinski's big downside is that he has a colorful personality, which isn't generally considered an asset in potential Supreme Court nominees--though it didn't hurt William O. Douglas any. But the upside far outweights the downside.

Sometimes It Sucks to Live in D.C.:

There are many good things about living in Washington, D.C., but sometimes it all gets a bit tiresome:

A free association exercise: Think of a Washington Nationals baseball cap. What's the next thing that pops into your head?

Some people think of the old Senators, whose caps inspired the new team's logo. Some think of the first-place team they now root for, or of hometown pride.

Then there are those steeped in the kind of partisan perspective that forced the french fry to decide whether it was with us or against us. They can't get past the "W," as in the president's trademark middle initial.

That can be good: "My immediate reaction was, 'W! Perfect!,' " said Dan Mintz, 57, of Bethesda. "Not only do I get to root for Washington, but I get to root for George."

Or it can be bad: "I just couldn't get myself to wear the red hat with the 'W' on it," said Jerry Stewart, 41, of Sterling, who bought a replica of the cap the Nationals wear for away games. Those hats are Democrat blue; the home caps are Republican red.

Give me a break. Can everyone around here just knock it off for once?

Confirmation Fight, Part III:

"Vacancy Starts a Fundraising Race: Court Nomination Battle Could Rival 2004 Election's Totals":

The effort to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor has already become a fundraising magnet for both left and right that promises to rival the 2004 presidential campaign for the rate of cash flow, if not total dollars raised.

The prospect of shifting the Supreme Court to the right has fueled a quest for dollars by conservative and liberal interest groups that will halt only if President Bush does the unexpected and nominates someone acceptable to all sides.

Under the scenario of an ideological battle, participants predict the competition for cash will turn the Senate confirmation into the most expensive nomination fight in the nation's history, certain to break $50 million and, if the nominee is especially controversial, likely to approach $100 million.

Most of the money raised would not be publicly reported. With the exception of such groups as MoveOn PAC, many organizations active in the fight are tax-exempt and have few, if any, disclosure requirements.

Edith Jones on the Confirmation Process:

In a recent symposium published in the Richmond Law Review (available on Westlaw), Edith Jones commented on the judicial confirmation process:

These observations would not be complete without some prediction of what the future will bring or some prescription to resolve the current impasse. In a previous article, I concluded that:

The problems of judicial selection, in my view, are not so much a cause as a symptom of the deeper division in views as to what constitutes the rule of law. If the purpose of law, broadly speaking, is to effectuate political change, then, clearly, judges are political actors who must be accountable to the public like other politicians. If, on the other hand, the principal role of judges is to interpret existing law, while changes of legal policy are within the province of the executive and legislative branches of government, then judges have a more limited, though still essential, role in democratic government. For much of the twentieth century, mandarins of the law viewed the courts as agents of social change and the law as contingent, evolutionary, and ultimately subservient to political expediency. Federal judges long ago caught on to this heightened view of their power, and it was inevitable that state judges would do the same. As judge-made law became more involved in politically sensitive areas, the appointing authorities reacted accordingly. The politicization of selection processes followed the politicization of judicial decision-making, which in turn followed twentieth century currents of judicial philosophy. Today's "ethics" of judicial selection recognizes the politicization of the judges' role.

The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening. That is to say, when the rule of law is again tethered to respect for the executive and legislative branches of government; to traditional legal craftsmanship, to continuity, to moral values; and to limited social aims, judicial selection will not provoke such battles. Philosophical change of this dimension often takes decades to mature and influence society's thinking.

Three years later, my diagnosis of the root problem and the timeline for its ultimate solution remain the same. The prospect for a short-term remedy to the politicized judicial confirmation process is grim, however, barring a decisive change of personnel or rules in the Senate. The indiscriminate use of the filibuster and the resort to public character assassination in hearings are reminiscent of tactics employed fifty years ago by southern senators and Joseph McCarthy to achieve their ends. We now know, of course, that those tactics represented the dying gasp of doomed movements. Politicizing the selection of federal judges ought to share the same fate.

As Ribstein notes, surely there is demonstrable social value in nominating someone to the bench with deep judicial experience and a well-developed judicial philosophy.

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Gonzalez Futures:

As others have noted, Gonzalez futures at TradeSports exploded sometime yesterday.

When I looked a couple of days ago, Garza was way ahead, trading at 30 with all others including Gonzalez) down in the low teens. Where Garza futures are headed also seems reflected in his large bid-ask spread.

Gonzalez also has the most trades on the market--does anyone know how much it would take to move this market significantly in a day or so?

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Eliminate the Supreme Court?

Hanno Kaiser proposes it.

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Monday, July 4, 2005

After Kelo, if Private Development is a Public Purpose, Then Why Isn't Private Development Charitable?--

I have been thinking about the ancillary effect of Kelo on other laws and on law firms, such as:

  1. What is a charitable use entitled to exemption from income and estate taxes?

  2. What is the meaning of pro bono for law firms?

As background consider this crucial portion of the majority opinion in Kelo:

[P]etitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City's plan will provide only purely economic benefits, neither precedent nor logic supports petitioners' proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized.

The law of charitable uses has a catch-all category for "Any other matter beneficial to the community." Under this umbrella, for example, gifts to the government or gifts to non-governmental entities for cemetaries are recognized as charitable.

After Kelo, "There is . . . no principled way of distinguishing economic development from the other public purposes that we have recognized." So, following Kelo, private development is a "public purpose" with general "public . . . benefits." Hence private development should qualify for charitable deductions, and whoever gets the condemned property (Wal-Mart?) can treat its income from the development as nontaxable income.

Hmmm, . . . makes perfect sense, right? Or if it doesn't, then maybe you don't buy the Supreme Court's claim that it can't figure out how to separate private development from public uses and public purposes.

I'm sure that one of the many surprises of those reading the Kelo decision was the discovery by corporate law firms that most of their work for private clients is pro bono publico (meaning "for the public good")--at least the work that makes their clients richer and causes them to report more income and pay more taxes. I think, however, that advice that leads to less economic development or to paying less taxes would not qualify as a public purpose and thus would not be pro bono publico. So now most of the work of most business law firms is pro bono--right?

Or again, maybe you don't buy the Supreme Court's claim that it can't figure out how to separate private development from public uses and public purposes?

Michael Barone on the Confirmation Fight:

As I noted the other day, a fight over any Supreme Court nominee is inevitable because the interest groups already have the money and it is earmarked for this purpose (what are they going to do, give it back? decide not to run the ads they have planned?).

Perhaps the best analogy is World War I--once the first domino falls (O'Connor's retirement) the alliances on both sides will take on a life of their own.

Michael Barone predicts a fight for similar reasons:

Nor is there any indication that People for the American Way or the Alliance for Justice will not oppose any Bush nominee with every ounce of strength they have.

These groups exist for the purpose of defeating Republican judicial nominees, and their financial supporters -- the big money people and those sending in small amounts in response to direct mail appeals -- would be furious if they meekly accept a Bush appointee as Republican senators accepted Stephen Breyer and Ruth Bader Ginsburg when they were nominated by Bill Clinton. Not opposing nominees would be an act of self-destruction for these groups, and Washington lobbying groups are not in the habit of self-destruction.

As for Democratic senators, they have almost unanimously accepted direction from these groups. As independent-minded and candid a senator as Russ Feingold of Wisconsin was seen reading questions to a Bush nominee off the papers supplied by these groups. A major Democratic constituency, the feminist left, expects a fight against any Bush nominee. The Democratic senators surely will not disappoint.

This means that Democrats will filibuster any Bush nominee, while the left groups attempt to tar them with any charge they can dream up.

Related Posts (on one page):

  1. Confirmation Fight, Part III:
  2. Michael Barone on the Confirmation Fight:
  3. Confirmation Fight, Part II:
  4. Confirmation Fight:
Doonesbury Attacks Bloggers.--

There are two cartoons in the last few days that feature bloggers and catfood. Glenn Reynolds has DayByDay up on his site today.

And yesterday Garry Trudeau in his Sunday Doonesbury strip was attacking bloggers (tip to my daughter Katie).

He has Mark on the radio getting the better of a blogger named "Slamz88." Mark says:

"Isn't blogging basically for angry, semi-employed losers who are too untalented or too lazy to get real jobs in journalism?"

After the slow-witted Slamz88 tries not to sound like the loser he really is, Mark tricks him into admitting that his favorite flavor of catfood is Friskies.

Hah, Hah! The loser blogger eats catfood (or used to eat catfood). "Semi-employed" poor people are just so funny in their eating habits, aren't they? Just hilarious!

As for what this blogger eats, this week I got back from a vacation in Zurich and Tuscany; I had some unusual and interesting foods, but I don't remember Friskies being on the menu. I admit that I'm still partial to some foods that I ate as a college student at Yale. (Money was tight then--I attended on a need-based, full tuition scholarship.) Indeed, in Trudeau's honor, I just made grilled cheese sandwiches for my family (with American cheese and white bread, no less!).

I remember when Trudeau ate rather more modestly. In the early 1970s when Doonesbury was already a hit strip in the national newspapers, I recall seeing Trudeau on campus and hearing that he was eating at least some of his meals in the Yale residential college dining halls (he may have been taking some graduate school classes at the time).

Remember when Doonesbury was cool, when it tried to shake up not only the political establishment but the old media establishment as well.

UPDATE: I was thinking that the next blogging competitor to "Pajamas Media" ought to be named "Catfood Media"--that perhaps we should add to the list of insults (such as bloggers in their pajamas) a new insult: bloggers eating catfood or catfood-loving bloggers.

2d UPDATE: I see that Nick Stewart was already discussing the Sunday Doonesbury strip (tip to Instapundit).

3d UPDATE: Alan Henderson has more tasty comments on cat food.

Economic Justifications for Kelo?

A friend who is a professor at another law school sends along this request:

I hope you don't mind another effort to pick your brain as I compile materials for my Law & Econ class. For takings, I'm assigning Thomas Merrill's 1986 article on "public use," and I'm trying to add a few short economics-minded discussions of Kelo. First, I was planning on assigning your and Eugene's blog posts on Kelo.

Second — and here's my question — do you know of any pro-Kelo articles / blog posts that are economics-minded? Most of the pro-Kelo stuff I've seen is either (1) "economic development is good, so it's 'public use'" or (2) the outcome in Kelo was dictated by precedent. I'm not too interested in those points; I'd like an economics-minded argument for a broad construction of "public use." If you don't know of any such pro-Kelo items, I'd settle for a pre-Kelo economics-minded argument for a broad construction of "public use."

I checked with Eugene and neither he nor I have come across anything along these lines in the blogosphere. If any readers have seen any economic analysis of Kelo that makes an economically-sophisticated argument in favor of a broad construction of Kelo, please send me an email with the link or post it in the Comments. If anyone comes up with anything, I'll post the links.

Thanks.

Update:

Two people have contacted me with their arguments for an economic defense of Kelo, here and here.

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Filibuster Deal:

"Filibuster Deal Puts Democrats In a Bind: Pact May Hinder Efforts to Block High Court Nominee":

The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.

Seriously, does anyone actually believe any of the 14 Senators are going to feel bound in any way by the deal? It has been obvious from the beginning that "extraordinary circumstances" is an empty term, and there is little doubt that any of the filibuster compromisers could easily cook up some reason to find "extraordinary circumstances."

As for whether "philosophical views" constitute "extraordinary circumstances," remember that those who attacked Bork simply redefined their philosophical objections as questions about his temperament. And Estrada was filibustered because of his unwillingness to respond to unreasonable and overreaching document requests.

The only silver lining in all this is that the filibuster deal itself was an unconstitutional abdication of the Senate's advice and consent obligation in the first place, so if this provides the triggering event for its demise, so much the better.

Related Posts (on one page):

  1. Filibuster Deal:
  2. More on Filibuster Deal Fall-Out:
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Confirmation Fight, Part II:

From today's Washington Post:

A planning document for Senate Judiciary Committee Republicans says the nominee will be counseled to avoid disclosing "personal political views or legal thinking on any issue" in an effort to put a focus on qualifications rather than specific issues, including same-sex marriage and the government's treatment of suspected terrorists.

Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.

Justice Robert Jackson on the 4th of July:

Lawprof John Barrett passes this along:

[After the end of the War in Europe,] Justice Jackson was working by appointment of President Truman as United States chief of counsel to bring about the trial of suspected Nazi war criminals. In July 1945, Jackson was in London, negotiating with the United States’s British, Soviet and French allies in an attempt to reach an agreement that would create an international military tribunal and define crimes and legal procedures that would make it possible actually to conduct such trials. By early July, the negotiations had been underway for some time and were not going well.

On July 4th, after a difficult morning meeting at Westminster’s Church House, focusing on issues that included the possibility of holding trials in Nuremberg, Germany, and the process by which these national representatives should try to draft a potential agreement, Jackson suddenly asked to be excused for the remainder of the day. It was time, he explained, for him to join in his country’s annual celebration of “hostility toward the British” -- a remark that drew the first Soviet smiles of the negotiations. . . .

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Virginia Postrel Busts Nancy Pelosi:

 

The House has passed an amendment prohibiting the use of federal funds to seize private property for private economic development projects. In its report on the bill, the LAT quotes [House minority leader Nancy Pelosi]'s reason for opposing it. She said she doesn't want to withhold federal dollars "for the enforcement of any decision of the Supreme Court, no matter how opposed I am to that decision."

This is, of course, a complete non sequitur. The Supreme Court's Kelo decision in no way said that cities must take private property or that Congress should encourage takings. It said those takings weren't constitutional prohibited. If anything, the House bill enforces Kelo, which requires legislative, rather than constitutional, protections at the federal level. . . .

Absolutely right. See here for Virginia's post, which has some more material on this.

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One Fact Sums Up The Problem With the L.A. Times Editorial

About Justice O'Connor's role on the Supreme Court -- the opening sentence is flat wrong. That sentence reads:

One fact sums up Justice Sandra Day O'Connor's pivotal role on the Supreme Court and the enormity of her resignation -- she alone was in the majority of every one of the court's 13 5-4 decisions this last term.

But as Patterico points out, Justice O'Connor was in the dissent in the 5-4 takings "public use" case; in the 5-4 case involving the execution of 16-year-olds; in the 5-4 cases involving the Sentencing Guidelines; in the 5-4 Twenty-First Amendment/Commerce Clause wine shipment case; and more. According to SCOTUSblog (please note that I have not checked the data myself, but I find SCOTUSblog to be quite reliable), she was in the majority last term in 14 of the 24 5-4 decisions. A bit of quick math will tell you that in those decisions, an average Justice would be in the majority in 24*5/9 = 13.333 decisions.

Now ultimately Justice O'Connor was the swing vote in quite a few important cases during her time on the Court; yet by erroneously overstating this tendency, the Times has done a disservice to its readers.

Note also that, as of now (11:13 am Monday morning), neither the original story nor the Corrections page. On the off chance that no-one has yet alerted the Times to this, I sent them a comment this morning; I hope they correct this promptly and prominently (more prominently than is usual for their corrections).

(And, yes, I noticed the "enormity" usage glitch, but I leave that to be discussed by people who are more prescriptivist than I am. To me, the usage is probably more inelegant and ambiguous than "wrong," if the authors meant "enormity" here as "enormous importance," though it would show a great lack of proportion if they meant "enormity" in the more "official" sense of "monstrous evil.")

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Gaylord Nelson:

Senator Gaylord Nelson passed away yesterday. During his distinguished service as United States Senator from Wisconsin, Senator Nelson was the leading voice for environmentalism in the Senate--even before environmentalism became a popular cause. Senator Nelson introduced the bill which created the first Earth Day, on April 22, 1970. Defeated in the 1980 Reagan landslide, Gaylord Nelson continued his public service as President of the Wildnerness Society. Here's a 1990 interview I had with Senator Nelson, for the magazine Relix.

For readers who would like to read my comments for the Volokh Conspiracy in a PDA format, here it is. I hope that one day there will be a complete PDA version for the Volokh Conspiracy, as there is for InstaPundit. In the meantime, I'm doing my part for mobility.

Epstein on Kelo:

In case you missed it, Richard Epstein comments on Kelo (not to ruin the suspense or anything, but he doesn't like it).

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Bush's Inner Circle:

Law.com profiles those who it believes are involved in the President's inner-circle of advisors for Justice-picking.

Government Responses to Kelo:

In the Mark Steyn column noted earlier he cites the fact that Arnold, Missouri is using the eminent domain power to take 30 homes, 14 businesses, and the local VFW to put in a Lowe's and a strip mall.

More details on that project here. In addition to using the government's eminent domain power to assist the development, the city has also provided $21 million in tax incentives:

Overland-based THF Realty wants Arnold to use eminent domain, if needed, to take over about 45 homes and business to make way for a new strip mall on 38 acres southwest of Interstate 55 and Highway 141. Critics have denounced the $55 million project as corporate welfare, because the developer wants $21 million in tax-increment financing.

IJ is keeping tabs on the latest post-Kelo developments around the country.

Steyn also mentions the Newark project, which is also mentioned on IJ's site:

Newark officials want to raze 14 downtown acres in the Mulberry Street area to build 2,000 upscale condo units and retail space. The Municipal Council voted against the plan in 2003, but then reversed its decision eight months later following re-election campaigns in which developers donated thousands of dollars. Officials told the Associated Press that the Mulberry Street project could have been killed if the U.S. Supreme Court had sided with the homeowners in Kelo.

July 4th Fireworks from Mark Steyn:

In honor of July 4, some raucus and well-timed fireworks from Mark Steyn giving the Supreme Court a well-deserved helping of derision. I recommend the whole thing--every sentence is hilarious. Here's a snippet:

Rule by the judicial interpretation of principles is problematic enough for some of us. But rule by the judicial interpretation of lack of principles takes us to dizzying new heights. Last week, in two rulings, the Supreme Court decided that (a) displays of the Ten Commandments are constitutional and (b) displays of the Ten Commandments are unconstitutional. Don't worry, all nine judges aren't that wacky, just the deciding vote in both 5-4 decisions. That belonged to Stephen Breyer, who nixed the Ten Commandments in Kentucky but gave 'em two thumbs up in Texas. His basis was that the Texas Commandments had been there 40 years and were thus part of "a broader moral and historical message reflective of a cultural heritage," whereas the Kentucky display was newer and "a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive." Really? Not as "certainly likely" to prove divisive as grandfathering the display of some Commandments but not others, so the only way to be sure yours is constitutional is to sue over it. For one thing, Justice Breyer didn't identify the year in which he believes the Commandments ceased to be constitutional -- 1968, 1973? Or maybe a sliding scale? If you put up the Commandments before 1965, you can have all Ten; between 1966 and 1979, you can have six firm Commandments plus a couple of strong recommendations; from 1980 to 1991, it's two Commandments and a half-dozen lifestyle tips? To be sure, the Supreme Court took other factors than the year of manufacture into consideration -- whether the display was inside or outside, whether it was surrounded by a full supporting cast of religious artifacts or secular knick-knacks, etc. But it's hard to discern any principles here, at least when compared to their one-size-fits-all abortion absolutism. To the best of my knowledge, Justice Breyer has never claimed you can have a first-trimester abortion in the parking lot, but for the full partial-birth you must be indoors.

He also gives an update of life for homeowners after Kelo:

Nonetheless, across the fruited domain, governments reacted to the court decision by sending the bulldozers round to idle expectantly on John Doe's front lawn: Newark. N.J., officials moved forward with plans to raze 14 downtown acres and build an upscale condo development; Arnold, Mo., intends to demolish 30 homes, 14 businesses and the local Veterans of Foreign Wars to make way for a Lowe's Home Improvement store and a strip mall developed by THF Realty.

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Is D.C. Turning Into a "Nanny State"?: The Washington Post has an interesting article on DC local law and enforcement strategies, as well as popular objection to them:
  A parking ticket on your windshield used to be as far as the stubby arm of District law would reach. But now, drivers are ticketed by robot cameras, holding a cell phone when driving is verboten and no one is allowed to have more than one drink at a time at city bars. Last week, D.C. police were handing out $10 tickets for jaywalking.
  Jaywalking.
  It makes some people wonder whether the District is turning into a Big Brother "nanny state." With these official efforts to make urban life safer, is there danger of Washington losing some of its buzz and the organic street life that makes a city a city?
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The Declaration of Independence as a Legal Document: It is sometimes forgotten that the purpose of the Declaration of Independence was not only to declare independence from Great Britain, but to justify that political separation. To the colonists, it was not enough that the British had violated their rights. Every government violates the rights of the people from time to time and this was not thought sufficient to justify separation. Rather, it was that "a long train of abuses" led to the conclusion that the British government was engaged in something like a continued conspiracy to violate the rights of the colonists. But they felt they had to make out this case, which they did in the form of the Declaration.

It used to be an American tradition to gather on every Fourth of July and hear the Declaration read out loud. On the first day of Constitutional Law, I have my students read it aloud, complaint by complaint, to get a sense for the document that laid the theoretical groundwork for the Articles of Confederation and then the Constitution. The legalistic nature of the Declaration is evidenced by its often omitted first sentence, and is also reflected in the bolded text in entire next paragraph:
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,


When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. [To read the rest click "show"]


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Sunday, July 3, 2005

JON-A-THAN!

The original Rollerball on ESPN Classics tonight.

Although one of the worst most anti-business movies of all-time (Ribstein doesn't discuss this one, probably because his tastes aren't as lowbrow as mine so he didn't think of it), I enjoy the heck out of it. As for the anti-business message, I like the "individual liberty against authority" angle to it and just try to ignore the anti-business message.

Bork on CNN:

I received this transcript of Robert Bork's phone interview on CNN, but haven't been able to find a link to it. It seems like an accurate transcription. If anyone has found it, let me know.

The most amusing part of the exchange:

KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?

BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians. I didn't do it very well. But I -- you know, they're going to -- they're going to insist upon answers to questions, "How will you vote on this? How will you vote on that?" Which I think is a very unfortunate practice, but that's what they are doing now in the Senate.

Herewith the entire transcript (as received via email). Please note that by posting the transcript, I am not necessarily endorsing or not endorsing everything Bork says, I am posting it because I think readers may find it interesting:

CNN Live Today

July 1, 2005

KAGAN: All right. Panelists, we'll be back to you in just a moment. Interesting person to talk to on the phone right now. Robert Bork on the phone, somebody who got almost to the Supreme Court. The judge nominated in 1987, a nomination that did not work out in the way that Judge Bork, I think, you would have liked. Your comments today on Sandra Day O'Connor and her legacy on the court, please.

JUDGE ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, she's a very nice person, but she is -- as a justice, she has been -- they call her the swing vote. That's true. But that means that she didn't have any reaffirmed judicial philosophy. However, on the crucial cultural question, she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and so forth.

KAGAN: Excuse me. Judge Bork, do you think it's fair to say she didn't have an judicial philosophy? Perhaps that she didn't have the same judicial philosophy that you share. But she probably -- she possibly had a more moderate philosophy and was expressing that as a swing vote on the high court.

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.

KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.

BORK: I wish you would stop using the word "moderate." But go ahead.

KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.

BORK: I would call it activist.

KAGAN: OK. So you would like to see -- actually, you bring up a good point. This is a time in U.S. history that's not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.

BORK: That's right, because it's really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.

KAGAN: President Bush's comment that he made just a few minutes ago, he said in whomever he picks he does expect and hope it will be somebody who honors the Constitution. I think that's something that you would like to hear. He also says that he and his staff will be talking with senators, trying to pick somebody who hopefully they will be able to get through confirmed.

What do you think about that?

BORK: Well, it depends on which senator he talks to and what he's -- and why he's talking to them. If he thinks that he ought to -- he ought to tailor his nomination to the desires of people who want activist judges, then I think that's a very bad idea. The Constitution says that he -- the president shall nominate and, with the advice and consent of the Senate, appoint. So that the advice and consent function of the Senate applies to the confirmation and appointment, not to the nomination.

KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?

BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians. I didn't do it very well. But I -- you know, they're going to -- they're going to insist upon answers to questions, "How will you vote on this? How will you vote on that?" Which I think is a very unfortunate practice, but that's what they are doing now in the Senate.

KAGAN: So would you tell a nominee not to answer those questions?

BORK: Either to find a way not to answer it on the grounds that they shouldn't be answered, or to give straightforward answers, which will mean that he will line up a lot of opposition.

KAGAN: And one final question. Is it worth it to go through the process in order to have that honor of serving on the high court?

BORK: Well, yes, it's worth it to go through the process. It's unfortunate that the process is as corrupt as it is. But it's worth it. And if you lose, it's a character-building experience.

KAGAN: Well, you have...

BORK: It's like a losing football team.

KAGAN: You had the opportunity and the experience. Judge Bork, thank you for calling in today.

BORK: OK.

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Justice Thomas On Precedent: In my earlier post I offer this as Lesson Three for watching the upcoming Supreme Court confirmation hearings:
LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.
On Pejmanesque, Pejman Yousefzadeh, observes:
One of the reasons why I like Justice Thomas is that while he respects precedent, he is willing to cast it off if the original precedential decision did not conform with original intent. And why shouldn't he? There is no point in compounding a mistake, after all.
He then links to his interesting Tech Central column, Needed: Thomist Jurisprudence. Here is a taste of that:
Those who -- like me -- are disheartened by the decisions in Raich and Kelo may potentially take heart in the hope that Justice Thomas's powerful dissents will have sown the seeds for the emergence of a Court majority in the future that will reflect Justice Thomas's thinking. Perhaps that new majority will be crafted via help from Justice O'Connor's successor -- who could do worse than to adopt Justice Thomas's approach to the law and to intellectual issues. As law professor Orin Kerr puts it, "The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless -- and particularly against powerless racial minorities -- feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea."
Let me take this as an opportunity to make two points:

First, Justice Thomas is a conservative politically, not a libertarian. I am completely certain of this because I have personally heard him say so very recently and with gusto. Nevertheless, while there are Thomas opinions with which I disagree (e.g. his dissent in Lawrence v. Texas), his philosophy of judging comes closest to the one I recommend, which shows how method should come before results. Where I disagree with him, it is incumbent upon me to show how he has deviated from original meaning (as I think he sometimes has done). I still find it interesting that Justice Scalia did not join Justice Thomas in his concurring originalist opinions in Lopez and Morrison, or Justice Thomas's originalist dissenting opinion in Kelo. In Kelo, Justice Scalia (along with Justice Thomas) joined Justice O'Connor's excellent, but nonoriginalist, dissent instead. I believe this tells us much about the different judicial philosophies of these two conservative justices.

Second, it is worth considering Justice Thomas's own words about precedent from his Kelo dissent:
The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.
This is the judicial philosophy that I hope will be shared by whoever the President decides to nominate. Otherwise, "judicial conservatives" will forever be taking their orders from nonoriginalist justices of the past, rather than from the text of the Constitution to which they take their oaths, and which most of the people still think should restrict those who govern them.
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It's All the Patriot Act Nowadays: I finally have found a lawsuit involving the Patriot Act that brings the Justice Department and the ACLU together. A homeless man in Summit, New Jersey, brought a $5 million federal lawsuit against town officials for forcing homeless people to leave the town's train station. The town's defense of its action includes the claim that its action is justified by the Patriot Act.

  The Patriot Act doesn't have anything remotely related to kicking homeless people out of train stations, however. As best I can tell, the town attorney seems to believe that Section 801 of the Act is relevant to the lawsuit. He's way off, though. Section 801 creates a federal crime for conduct involving interference with mass transportation systems. It has nothing to do with civil powers, local officials, or hanging around on benches in the waiting area of the local train station.

  According to the AP, both DOJ and the ACLU agree that the town's interpretation of the Patriot Act is just wrong, if not patently silly:
  Edward Barocas, legal director of the American Civil Liberties Union of New Jersey, said the Patriot Act defense is weak: "Nothing in the Patriot Act lets them kick homeless people out of train stations."
  The U.S. Justice Department also criticized Summit's use of the law.
  "That represents a fundamental misunderstanding of what the Patriot Act is," spokesman Kevin Madden said Wednesday. "The Patriot Act is a law enforcement tool to identify and track terrorists and stop them from further attacks on America. To apply it to this case is, shall we say, an overreaching application of the law."
  Thanks to PatriotWatch for the link (although I should point out that the poster at PatriotWatch may not recognize that this is just a frivolous legal argument, not a "use" of the Patriot Act.) Post title inspired by Gordon Liddy.
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The Impact of Justice O'Connor's Retirement may be considerably less than most people think. Or so I argue in the Opinion section of today's Los Angeles Times:
  Some court observers are predicting that the Supreme Court will be radically different without Justice Sandra Day O'Connor. I'm not so sure.
  Every year, the court decides a handful of closely divided cases with important ramifications for American life. In many of these cases, the court has divided into three camps.
  The first includes the four liberal justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. The second consists of the three conservatives: Antonin Scalia, Clarence Thomas and William H. Rehnquist. The last camp covers the two moderate swing votes: O'Connor and Anthony M. Kennedy.
  O'Connor's retirement removes a swing vote. But that may not have a dramatic effect on the outcomes of the court's biggest cases.
  I offer four reasons for this conclusion: Kennedy remains a key swing vote; O'Connor's replacement may not be very different from O'Connor; Rehnquist may resign, taking away a solid conservative vote that may roughly cancel out the impact of O'Connor's lost moderate vote; and respect for precedent will keep the Court from overruling most of the cases for which O'Connor provided the swing vote in the past.

  Of course, whether this is cause for rejoicing or dismay is in the eye of the beholder. But at least in the short term, I do think the stakes for the battle to replace O'Connor are somewhat lower than many people assume. (The long term picture is different and more complicated due to the cumulative effect of multiple resignations and replacements over time.)

  Oh, and I didn't write or have anything to do with the title for the piece. Titles for this sort of thing are written by the editors, not the authors.
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