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Saturday, October 15, 2005

Supreme Court Nominees & the ConLaw Bias:

Defending the nomination of Harriett Miers in the WSJ, Ruth Wedgwood remarkst (subscription required):

The Court is well-endowed with ex-academics and dirigiste ex-government lawyers, but few justices have worked in the private sector or helped to counsel a business for any perceptible length of time.
Setting aside the merits of the Miers nomination, I think this is a point worth some elaboration.

Reading some of the commentary on Miers' qualifications (or lack thereof) to be a Supreme Court justice, one could get the impression that a fully formed theory of constitutional interpretation is the most important, if not the exclusive, qualification for a prospective Supreme Court nominee. I think this view is mistaken. Indeed, if anything the current Court, as a whole, lacks significant experience in many other areas of law that are just as important to the Court's work.

The majority of the Court's docket each year has little to do with Constitutional Law. Most cases are statutory cases. True constitutional law cases implicating founding principles account for a small minority of the cases before the Court in any given year. Many (if not most) ConLaw cases concern crimminal procedure, rather than the sorts of subjects covered in the standard ConLaw curriculum -- and these days criminal procedure is effectively its own separate field. (In my experience, most criminal procuedure professors are not experts in basic constitutional law and vice-versa (current co-bloggers excepted, of course.)

One could argue that the non-CrimPro constitutional law cases are inevitably, if not inherently, the most consequential cases before the Court. Perhaps, but this is hardly evident. Decisions about the application of federal jurisdictional statutes, class action certifications, or finality requirements have tremendous implications for the practice of law. Looking at last term, it is not at all clear to me that the Court's decisions in the two Ten Commandments cases last term are any more consequential than National Cable & Television Association v. Brand X Internet Services or Bates v. Dow Agrochemicals, cases concerning judicial deference to agency interpretations of federal statutes and statutory preemption of state common law tort remedies, respectively.

However important it is for a new Supreme court justice to have a fully formed theory of constitutional interpretation, such a judicial philosophy would be of little help in deciding the majority of cases. An overarching theory of constitutional interpretation is valuable, but it hardly tells one how to evaluate statutory conferrals of federal jurisdiction, resolve contractual disputes, or determine the proper standard of review in an antitrust case.

My point is not the constitutional law is unimportant for prospective Supreme Court justices. I just think that those of us who teach and write in the area are inclined to exaggerate its importance on the Court. I care about a prospective justice's approach to constitutional interpretation as much as the next legal blogger, but it's hardly the only question I consider important in considering a nominee. Indeed, I would argue that a Supreme Court with a wider array of experience would be better than one made up of nine experts in constitutional law. Experience as a prosecutor or criminal defense attorney is likely makes a prospective justice more qualified to consider criminal procedure cases than a unified theory of federalism, representation-reinforcement, or judicial review of legislative action.

My point here is not that Miers is qualified to be a Supreme Court justice. I merely wish to suggest that some of us academic blogger-types have exaggerated the importance of constitutional law experience for prospective Supreme Court justices.

51 Comments
Form Versus Substance -- A Response to Eugene: In his post below, Eugene asks why I am speechless in reaction to Hewitt's use of the Party Discipline argument, which, as Eugene notes, is an old type of argument. The reason is that I am reacting to the substance of Hewitt's position, not its form. I'm not surprised by the logical structure of the argument, but by the chain of causal relationships that Hewitt strings together. Eugene may be right that some readers of Hewitt's blog believe in that chain -- it's hard to tell, as no one has made this particular argument until Hewitt did this morning -- but I'm not sure why that makes the argument any less remarkable.

Related Posts (on one page):

  1. Form Versus Substance -- A Response to Eugene:
  2. Party Discipline:
  3. The Miers/WMD Connection:
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Party Discipline:

It seems to me that the "new argument" (Orin's words in this post) that Hugh Hewitt is introducing into the Miers debate is actually an old argument -- one of the standard arguments for party discipline. Say that you believe the following:

  1. One of the parties' programs is much better for the country than the other's on subjects A, B, and C.
  2. A political defeat for the party on the quite different subject D might substantially weaken the party's ability to get the rest of its program implemented.
  3. The party's proposal as to the somewhat less important matter D isn't what you'd have wanted the party to do, but isn't that bad.
It then makes good sense for you to swallow your objections to D, rather than fighting the party on D and thereby weakening the party and making it harder for the party to implement its good policies on A, B, C, and D. And the same applies if you substitute "the current Administration" (or the portion of the party embodied in the Administration) for "the party."

Here, Hugh is arguing that fighting the Administration on Miers would politically weaken the Administration more generally, and thus make it harder for the Administration to pursue its foreign policy (which Hugh thinks is sound); this, he suggests, is good reason for people who generally support the Administration's foreign policy to accede to the Miers nomination. Some Democrats could equally argue that fighting the Democratic Party on some issue (e.g., race-based affirmative action) would politically weaken the party more generally, and thus make it harder for the party to protect abortion rights or the environment or social services programs (positions that the arguers think are sound); this, they would suggest, is good reason for people who generally support the Democrats' abortion rights / environmental / social services programs to accede to the party's position on race-based affirmative action. Both strike me as legitimate arguments.

Of course, if one disagrees with any of the three assumptions I identified above, one won't be persuaded by the argument that flow from those assumptions. If one thinks that the Republicans' (or the Administration's) positions on important issues are wrong, then you may want the party to be weakened. If one thinks that the success or failure of the Miers nomination won't affect the Republicans' / the Administration's political success more broadly, then one can focus solely on the merits of the Miers nomination and not worry about the indirect political consequences. And if one thinks that the Miers nomination is a very bad idea, then one may well choose to oppose it despite the harm that the indirect political consequences may do to Republican / Administration initiatives that one endorses.

But I take it that Hugh agrees with those three assumptions, and thinks some of his readers agree with them. And to those who agree with the assumptions, Hugh's argument may well be properly persuasive. Is there something I'm missing here? Is there some reason why Hugh's argument should indeed leave us "speechless"?

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Commemorating Lysander Spooner: Despite a steady rain here in New England, a marker was installed today commemorating the birthplace of Lysander Spooner. On January 19, 1808, Spooner was born in this house in Athol, Massachusetts (about 75 miles west of Boston)[click to enlarge photo], and in it he later wrote The Unconstitutionality of Slavery.

Lysander Spooner's Birthplace


Ever since I first saw the house about ten years ago, I have wanted to arrange a marker to note its historical significance. Thanks to a generous gift by a fan of Spooner named Tom McGovern, the cooperation of the home owner Elsa Paton, the efforts of my BU research assistant Nathan Speed, and the really nice people at the A. Monti Granite Company in Quincy, MA, that day finally came, and I am thrilled.

The stone is "puddingstone" and the bronze marker is 18" x 12." Here is a closer view of the stone (click on the image to read the plaque and see the coloration of the stone):

The Spooner Marker


Click hidden text to view more pics of the installation.

Update: For those who have not seen it, I thought I would upload some photos of the monument we had put on Spooner's grave at Forest Hills in Boston a few years ago.

Spooner's Grave Monument


For directions to Spooner sites in and around Boston click here. For more pics of Spooner's gravesite monument click here:
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"Questions for Charlie Daniels Upon Hearing 'The Devil Went Down to Georgia'":

Very funny; thanks to commenter Jared K.

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The Miers/WMD Connection: Hugh Hewitt has introduced a new argument for the defense of the Miers nomination: Opposing the nomination of Harriet Miers may lead to the deaths of millions of Americans at the hands of terrorists. As best I can tell, the argument is that a Miers defeat would hurt the Republican Party, and hurting the GOP would limit the nation's ability to fight terrorist threats and place millions of American lives at risk:
  With a nomination made, I prefer to press to the desired outcome, and support the president and recognize that the defeat of a nominee is a calamitous political consequence, no matter what other people say.
  It may come as a shock to people, but I am a Republican, who believes that the care and nurturing of governing majorities of the GOP in the Senate and the House in time of war, and the preparation for a monumental struggle with Hillary in 2008, are crucial --indeed the most important-- goals on the table.
  We can lose the war. We can suffer terrorist attacks far more devastating than 9/11. Iran is not being deterred, and North Korea continues to be run by an unbalanced dictator with nukes. There are at least hundreds of thousands and probably millions of Islamofascists who would gladly bring WMD to this country and use them in our major cities. I would have preferred a different nominee, and I hope that my short list is the president's short list the next time a vacancy occurs.
  But the field is large, [and there are] many forces are at work on it only a few of which I glimpse . . .
  Wow. Am I misreading Hewitt, or is he really saying what I think he is saying? If the former, I'll correct it immediately; if the latter, I am just speechless.
67 Comments
"The Devil Went Down to Georgia"

Pulled from High School Marching Band's Routine:

Until recently, the Charlie Daniels Band song "The Devil Went Down to Georgia" was in the [C.D. Hylton High School] marching band's line up of Georgia-themed music. . . .

On Oct. 2, The Potomac News & Manassas Journal Messenger published a letter to the editor arguing that while no one objected to that song about the devil, there would be objections if the band were to play a song about God or other spiritual beings.

After that letter ran in the paper, [band director Dennis Brown] dropped the song from the marching band's program. . . .

In the letter, [Robert] McLean wrote, "A high school band director would be fired for playing 'Amazing Grace' but no one bats an eye for the playing of a song about the devil … [H]ow can one mention the devil, and not be able to mention a Christian God?"

Brown said that the letter was the first objection he had heard to the song. . . .

Brown made the decision to drop the song to prevent any negative attention the students or school might receive because of it, he said. . . .

McLean said he did not intend his letter to be criticism of the school or the song[:] "I like the song. . . . I just thought it was kind of ironic that they could play that song, but they wouldn't be allowed to play a song about God." . . .

Thanks to Becky Dale for the pointer.

For those curious about whether playing The Devil Went Down to Georgia would be an Establishment Clause violation, the answer is no; though some songs that mention God (or for that matter the Devil) may in some contexts be seen by a reasonable person as endorsements of religion, this song wouldn't be.

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Miers, TalkLeft, and the Death Penalty: Jeralyn Merritt of TalkLeft knows Harriet Miers, and is making the case that political liberals should be optimistic about the Miers nomination and "give Harriet a chance." An excerpt:
  Most of those I've spoken with believe she will be okay or better as a Supreme Court Justice. While she may be more conservative than many of us, all thought she would be fair. . . . . There has been a lot of praise for her pro-bono efforts while President of the Texas bar.
  The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.
  I think that political calculation is probably right. Indeed, if Hugh Hewitt is correct that Miers will be another Potter Stewart, Miers may end up giving a fifth vote to Breyer, Ginsburg, Stevens, and Souter on a number of important issues that used to split 5-4 in a conservative direction.

  One likely area is capital punishment. The Justices of the Rehnquist Court were deeply divided on the death penalty. To oversimply things a bit, Souter, Breyer, Ginsburg, and Stevens have been eager to restrict it considerably; Kennedy and O'Connor have wanted to keep it basically intact but tinker a bit around the edges; and Scalia, Thomas, and Rehnquist wanted to keep it "as is." If confirmed, Miers may provide a real opportunity for death penalty opponents: In one of the very rare statements Miers has made that is relevant to the work of the Supreme Court, she expressed the view that the death penalty in Texas needs to be overhauled to provide better representation for indigent defendants. (Describing reforms of the death penalty in Texas in 1993, Miers stated that "we're using a Band-Aid approach when the system needs an overhaul.") It's hard to know with any certainty how this might shape her views about the Constitution. To the extent that Miers will be influenced by her years in practice, however, it seems reasonable to expect that she'll be a fifth vote to accelerate the restrictions the Supreme Court has imposed on capital punishment.

  Thanks to the Corner for the link.
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This Just In: From the Corner:
IT’S ALL A BIG MISUNDERSTANDING! [Roger Clegg]
I just reread today’s very first Corner posting, and suddenly it hit me what’s happened. Bush didn’t want HARRIET Miers nominated—he wanted rock-solid-conservative-law-professor Gail HERIOT nominated! He said, “Okay, I’ve decided to nominate Heriot,” and some staffer screwed up. Or maybe the staffer was Miers herself, and it was done accidentally on purpose. Anyway, over the weekend I’ll tell the President what happened and we’ll get this all straightened out. Whew, that was a close one!

Friday, October 14, 2005

The Selling of Harriet Miers, Part IV: The latest White House strategy, from the Associated Press:
  Stunned by conservative opposition to Supreme Court nominee Harriet Miers, President Bush next week will bring in former justices from her home state of Texas to trumpet her qualifications for the nation's highest court.
  The event is part of an administration effort to refine its push for Miers after its initial strategy failed to quiet opposition from members of the president's own party.
  Well, this should be interesting. Thanks to Howard for the link.
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Patterico on Potter Stewart: Patterico has more on the Harriett-Miers-As-Potter-Stewart question.
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Hugh Hewitt and Potter Stewart:

Hugh Hewitt writes:

Practical Potter and Even More Thoughts on the Politics of SCOTUS in 2006

The first President Bush was, I think, close friends with Justice Potter Stewart, who rose to SCOTUS after four years as a federal judge, and who, notably, retired at the age of 66. Stewart's opinions were pointed, and usually correct in my view. His job was to get it right, not construct overarching theories. How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.

Now I agree that there are many well-regarded and successful Justices who were more pragmatists than theoreticians; in an earlier post, I analogized Harriet Miers to one example, Justice Byron White. And it may well be that a Court that contains a mix of theoreticians and pragmatists will do better than one that's filled entirely with theoretically or ideologically minded judges.

What puzzles me, though, is (1) Hugh Hewitt's seeming endorsement of Justice Potter Stewart's outcomes (rather than just his temperament), plus (2) Hugh's prediction that Harriet Miers will reach results similar to those that Stewart reached. On a fairly liberal Court, Justice Stewart was indeed a moderate conservative, but the emphasis should, I think, be more on the "moderate" than on the "conservative." A few examples on some of the issues that I would have thought Hugh would find important:

  1. In Griswold v. Connecticut (1965), Justice Stewart did indeed vote against recognizing a "right of privacy" that would let the Court strike down various restrictions on sexual behavior. But eight years later, in Roe v. Wade (1973), Justice Stewart stated that he was prepared to accept Griswold as a precedent, and to extend it to cover a right to abortion.

  2. In the mid-1960s, Justice Stewart took a moderate position on the degree to which the First Amendment protects pornography -- but in Miller v. California (1973), he concluded that such a moderate position was untenable, and voted with Justices Brennan, Marshall, and Douglas to hold that pornography among consenting adults was fully constitutionally protected.

  3. In the early 1960s, Justice Stewart did cast the one vote in favor of upholding school prayer. But in the 1970s, Justice Stewart voted with the majority in Lemon v. Kurtzman to hold that religious schools must be discriminatorily excluded from evenhanded school aid programs.

  4. As I mentioned, in 1965, Justice Stewart reasoned that adults do not have a constitutional right to get contraceptives. But in Carey v. Population Servs. Int'l (1977), Justice Stewart joined Justices Brennan, Marshall, and Blackmun in striking down a ban on the distribution of contraceptives to under-16-year-olds. (Nor was Justice Stewart's decision based on a theory of parental rights; though the ban restricted parents' ability to provide contraceptives to children, and Justice Powell's concurrence used that as a basis for arguing against the ban's constitutionality, the opinion that Justice Stewart joined did not focus on this argument.)

Now I have no reason to think that Harriet Miers will indeed "turn out" "a lot like Potter Stewart" "in results." But I'm not sure I see why, if Hugh thinks she would so turn out, he thinks that the Stewart analogy cuts in her favor. Is it that (1) I'm mistaken in my views about what results Hugh himself would prefer? That (2) Hugh doesn't really care much about the results, and is supporting Harriet Miers even though she might well reaffirm abortion rights, vote against evenhanded school aid programs, or broadly protect pornography (again, a prediction that I would not make, but that seems consistent with Hugh's prediction that she'd be much like Potter Stewart)? Or that (3) Hugh thinks that Miers will turn out like Potter Stewart on most issues, but not on these issues? Or am I missing something else here?

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Bellicose Women, Part XXX:

Jordanian brigadier general Aisha Bint Al Hussein carries on a long and honorable tradition of expertise at arms among Bedouin women. As reported by StrategyPage:

"In the 19th century, when firearms became common among the Bedouin, women became even more lethal as warriors, because firing a rifle did not require the muscle of the older weapons (swords, spears and bows.) In Saudi Arabia...the older women still remember the freedom women had as recently as the 1950s. During that time, Islamic conservatives began imposing more restrictions on women as the Bedouin nomads settled down. But in Jordan, the women still have much freedom, in the ancient Bedouin tradition. This causes some friction, as the urban and rural Arabs adopted a much more restrictive attitude towards women. However, the old ways are remembered, and are increasingly being seen as the future for women in the Middle East."

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If I drank coffee, I'd drink Contra Coffee:

"At the height of the Cold War, the Nicaraguan Contras successfully fought to secure their freedom and block the spread of Communism. Today these freedom fighters need our help. Many former Contras are small-scale coffee farmers who produce high quality beans but struggle to break even because of low coffee prices. Your purchase of Contra Café allows these farmers to earn the livelihood they deserve." Some of the proceeds from Contra Café are donated to provide scholarships for the children of American soldiers who have been wounded or killed. The coalition which overthrew the Somoza dictatorship in Nicaragua was fighting for a just cause; but the Nicaraguan revolution was perverted by Communist tyrants who betrayed the principles of the revolution. In a five-part history of Nicaragua, I explain how the Contras were fighting to establish democracy. The freedom-fighters succeeded, thus achieving the goals of the original revolution.

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Potter Stewart and "I Know It When I See It":

A comment on the Miers/Stewart/Hewitt thread -- "Potter Stewart is most famous for recognizing obscenity when he sees it" -- reminded me of one of my favorite facts. It's true that this quote is indeed what Stewart is famous for, but people generally miss the follow-up to the quote: Nine years later Justice Stewart joined the dissent in Miller v. California, and would have thus held that pornography is categorically constitutionally protected (at least where no unwilling viewers or underage viewers are involved). And the dissent's reasoning focused largely on the vagueness of the existing tests for what's constitutionally protected and what's not.

So Stewart thought he knew it when he saw it. But after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system.

Stewart's willingness to change his mind, and his ultimate preference for a clear rule of protecting speech -- including sexually themed speech of the sort that he probably found personally quite distasteful -- strikes me as much more important than his original endorsement of a more vague, case-by-case approach.

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National Review Editors Call on Miers to Withdraw: I don't think it's likely to happen, at least any time soon, but here is the argument. Thanks to Glenn for the link.
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"Crash Course in Constitutional Law": From the Knight Ridder Washington Bureau:
  While other Americans enjoy an early fall weekend, Harriet Miers faces the homework assignment from Hades: hour upon hour of preparation for confirmation hearings that could make or break her hopes for a seat on the Supreme Court.
  The process starts with a 12-page questionnaire seeking details of her professional life, her finances and anything else that might shed light on her qualifications.
  When that's done early next week, she can turn her attention to a half-dozen thick briefing books on the most contentious constitutional issues before the court. By the time Senate hearings start in late October or early November, Miers will have completed a crash course in constitutional law.
Hat tip: Howard.
20 Comments
Bellicose Women, Part XXIX, India:

Since September 11, 2001, Glenn Reynolds has run at least 28 items about "bellicose women" taking up arms to defend their families and communities from terrorists. Thanks to the excellent pro-rights newsletter "News from the Sight," I found that Muslim women in Kashmir (many of the men are working in Gulf States) have founded a Village Defense Committee to protect their towns from Islamic terrorists. One mother explains, "It is an amazing feeling to hold a gun in one's hand for a noble cause...I am proud to be fighting a jihad against these marauders who cheated us of our dignity and honor."

What Did Miers Tell Bush?: One of the central arguments used by Miers supporters is that President Bush claims that Miers is a "strict constructionist" who won't "legislate from the bench." As best I can tell, there is no evidence of Miers having said this, or anything like this, to anyone else other than President Bush before her nomination was announced. Further, President Bush has not explained why he thinks it is true: he has not explained what Miers did, wrote, or said that led Bush to reach this conclusion. Given that, I would be interested in hearing from pro-Miers readers, in the comment section, about what they imagine Miers said to Bush that led Bush to conclude that she is a "strict constructionist" who won't "legislate from the bench."
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Harriett Miers as Potter Stewart: I've disagreed with a great deal of what Hugh Hewitt has written about the Miers nomination, but he had one post recently that I think is quite plausible. If confirmed, Hewitt predicted, Harriett Miers would probably be something like centrist Justice Potter Stewart:
  How will Harriet Miers turn out on the SCOTUS? My best guess is a lot like Potter Stewart, in temperment and tone, and in results.
  Given how little we know about Harriett Miers, it's hard to know for sure. Maybe she will turn out to be very conservative. Still, I think Miers-as-Stewart is a pretty fair guess. It's hard to describe Stewart's long career in a sentence, but I think it's fair to say that Potter Stewart was often considered a centrist or moderate conservative swing vote on a relatively liberal court. His was a somewhat unpredictable vote, joining Brennan and Marshall on the left in some cases and Rehnquist on the right in others.

  I think it's plausible that Miers would take a similar approach, at least based on the little we know. It seems likely to me that Miers has relatively few strong political or jurisprudential commitments: if she did, those views presumably would have come out at some point in her long career. The few glimpses we have into her own ideas seem to suggest that she is what I think of as a Texas Democrat — moderate to conservative on social issues, relatively liberal on economic issues. Those hints are just hints, of course. Miers seems to be more of a process person than a concept person, so we don't have a lot to go on. In the midst of that uncertainty, though, the idea that Miers might end up as a centrist in the Potter Stewart style seems to me a plausible guess.

Related Posts (on one page):

  1. Hewitt v. Hewitt:
  2. Harriett Miers as Potter Stewart:
15 Comments
Black or African-American?

A recent article (Lee Sigelman, Steven A. Tuch, and Jack K. Martin, What’s in a Name?: Preference for "Black" versus "African-American" among Americans of African Descent, Public Opin Q 2005 69: 429-438) reports on the results of "a nationally representative cross-section of African-American adults . . . who at the time of the interview in 1998–2000 were either currently employed or recently unemployed . . . in the coterminous United States, and had telephone access." The conclusion:

Of the 2,382 respondents to whom the question was asked, 1,146 (48.1 percent) voiced a preference for "black," 1,173 (49.2 percent) said they preferred "African-American," and 63 (2.7 percent) declined to express an opinion. Thus, opinions were split almost evenly between the two terms. Comparing these figures to findings from the surveys cited above suggests that the popularity that "African-American" achieved during the early 1990s did not grow during the ensuing decade and that, if anything, "black" has enjoyed a modest resurgence.

The statistical margin of error on a survey of this size is roughly +/-2%, so the results are a tie.

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Anti-Kelo Legislation in Pennsylvania:

Pennsylvania is considering legislation that would limit Kelo-style takings:

The idea that one taxpayer's property can be taken by government and turned over to another private person for non-governmental purposes is outrageous," said state Sen. Jeffrey E. Piccola, R-Dauphin.

He is sponsoring legislation to restrict municipalities' rights to take property by eminent domain. Similar legislation by Rep. Thomas Yewcic, D-Cambria, is in committee.

At least 35 other states are considering similar bills.

Stumping for Mr. Piccola's bill yesterday were Sens. John C. Rafferty Jr., R-Montgomery, and Patricia H. Vance, R-Cumberland; and Rep. Glen R. Grell, R-Cumberland, who is introducing identical legislation in the House.

Under their plan, municipalities could seize property under certain circumstances — for example, to remove blighted structures that are beyond repair and unfit for habitation or use. Municipalities also could take unoccupied properties that have been tax delinquent for more than two years, have been abandoned by their owners or have liens totaling more than 150 percent of fair market value. Municipalities could condemn an entire area if more than half of the properties within it are eligible for seizure.

"The use of eminent domain to destroy an established and unblighted neighborhood of homes and businesses to make way for shopping malls, office complexes or other private development is unfair and contrary to good public policy," Mr. Piccola said.

Critics oppose the legislation for the standard reasons.

The article notes that Kelo itself had little effect in Pennsylvania, which has long been on the national forefront of taking private land for commercial development. John Tierney memorably catalogued Pittsburgh's record in using the eminent domain power for private commercial in a column in the New York Times in the days before it was invitation-only (Lynne Kiesling posted a brief excerpt from Tierney's column here when it first appeared).

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Putting the Size Six Shoe on the Other Foot:

I've seen a lot of silly theories put forth by liberal bloggers and commentators about why the "conservative elite" opposes the Miers nomination. So let's put the shoe on the other foot.

How would the "liberal elite" have reacted if, instead of nominating Ginsburg or Breyer, Clinton, after promising to nominate Justices in the mode of Thurgood Marshall and William Brennan, had nominated a managing partner in the (Little Rock-based) Rose Law firm who had donated to George Bush's 1980 presidential campaign (as Miers donated to Al Gore's 1988 campaign); was Clinton's personal lawyer; was a big muckety-much in the pro-free market Chamber of Commerce (analogous to Miers and the ABA); had publicly opposed affirmative action (as Miers has publicly supported it); had denounced the ACLU(as Miers has more or less denounced the Federalist Society); whose supporters could come up with no better rationale for her appointment than that she was a female Unitarian who had privately expressed the view that abortion should be legal; and who otherwise had analogous credentials and background to Ms. Miers, except with the opposite ideological tinge?

My hypothesis is that such a nominee would have run into at least as much opposition from liberals as Miers has faced from conservatives, and that even fewer liberals would have bought Clinton's "trust me" line than conservatives have bought this line from Bush.

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Miers and the Federalist Society:

Miers on the Federalist Society, from a 1989 trial transcript (via Drudge):

Q. Ms. Miers, are you a member of any predominantly minority organizations, such as the NAACP, Black Chamber of Commerce, Urban League or any other predominantly minority organizations?

A. Women minorities?

Q. Well, maybe predominantly racial and ethnic minorities?

A. No.

Q. . . . . In your capacity as an at-large member do you think being involved in such organizations might assist you in having a perspective that – bring a perspective to your job that you don’t have?

A. I attend meetings designed to give me that input. However, I have tried to avoid memberships in organization s that were politically charged with one viewpoint or the other. For example, I wouldn’t belong to the Federalist Society any more than – I just feel like it’s better to not be involved in organizations that seem to color your view one way or the other for people who are examining you. I did join the Progressive Voters League here in Dallas during the campaign as part of the campaign.

Q. Are you active in the PVL now, do you intend to be?

A. No, I am not.

Q. Do you think the NAACP and Black Chamber of Commerce are in the category of organizations you were talking about?

A. No, I don’t. . . . .

(1) Ms. Miers obviously didn't know what she talking about. The Federalist Society, as I've noted before, is a big tent organization for right-of-center lawyers and does not push any particular political positions, unlike, for example, the NAACP. When Ms. Miers testified, the two most influential intellectual leading lights in the Federalist Society were probably Robert Bork and Richard Epstein. Any organization that can accommodate two such divergent worldviews can hardly be accused of "coloring" one's views any specific direction.

(2) I would love to know what Ms. Miers originally was going to say after "any more than...", but it doesn't sound promising.

(3) The transcript makes me wonder whether Ms. Miers was behind the embarrassing, offensive, and completely unnecessary White House denials that John Roberts was ever a member of the Federalist Society. One is even led to wonder whether under the Miers regime at the White House counsel's office, membership in the Federalist Society was disqualifying for nomination to the Supreme Court.

I know quite a few conservative attorneys who have been upset since the beginning of the Bush administration over the administration's spending policies, Iraq policies, and more, but have been loyal to the administration because their primary issue is the makeup of the federal courts. The Miers nomination is going to cost the president quite a bit of support. If she really wants to be loyal to the president, she should withdraw.

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[Puzzleblogger Kevan Choset, October 14, 2005 at 12:27pm] Trackbacks
Title in Common:
  • A #3 Billboard single in the 1970s.

  • A $27 million grossing movie starring two big name stars in the 1990s.

  • A #1 New York Times bestseller in the 2000s.

The three works are entirely unrelated. What is their common title? Answer below.

(show)

Can you provide other examples of prominent movies, songs, and books (and we'll throw in television programs, plays, etc.) that share names despite being entirely unrelated to each other? Don't post any title with fewer than three works that share it.

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Conservatives Call For Miers Withdrawal:

The Washington Times reports "Conservatives call to withdraw Miers":

The nomination of Harriet Miers to the Supreme Court has splintered President Bush's base and triggered a growing demand from his own supporters to withdraw her nomination.

"What a stupid, stupid mistake," said Mark W. Smith, a member of the conservative Federalist Society who has actively supported Mr. Bush but wants to see the nomination withdrawn. "You cannot fix this for 25 years."

Conservatives have stuck with Mr. Bush through the bloodiest and gloomiest days of the war in Iraq, held firm as administration officials are investigated for revealing a CIA operative's identity and given him a pass on the galloping federal spending. But blowing the historic opportunity to replace a swing vote on the Supreme Court is unforgivable, conservatives say.

"An awful lot of people hung in on the administration's coalition despite being troubled by the prolific spending, the war and everything else," said Paul W. Weyrich, a leader in the conservative movement. "The one thing they were certain of was that Bush would give us outstanding jurists."

Many conservative columnists and commentators -- including Peggy Noonan, the Reagan speechwriter who worked on Mr. Bush's re-election campaign -- have called on Mr. Bush to rescind Miss Miers' nomination.

Asked yesterday whether Miss Miers would request to have her nomination withdrawn, White House spokesman Scott McClellan responded, "No one that knows her would make such a suggestion, and no one that knows her record and her qualifications would make such a suggestion."

The fissure has separated the White House from some of Mr. Bush's most loyal Republicans in the Senate. Several -- including Sens. Trent Lott of Mississippi and George Allen of Virginia -- have publicly questioned whether Miss Miers was the right pick.

30 Comments
More on the Davis-Bacon Act:

Human Events has published an opinion piece I wrote on President Bush's suspension of the Davis-Bacon Act in the Katrina zone. When I last posted on this, commentors asked for a more detailed explanation of how Davis-Bacon, passed with the intent of keeping blacks from working on federal construction projects, still hurts minorities today. Here's what I wrote for Human Events:

Davis-Bacon forces federal contractors to pay their workers the "prevailing wage," but this wage is not determined by actual average local construction wages. Rather, the "prevailing wage" is generally determined by official local union wage rates, which are often much higher than average local wages. Indeed, the prevailing wage is sometimes higher than even actual union wages, because local unions often negotiate discounts for particular projects.

The intended result of requiring federal contractors to pay inflated union wages was to bar workers whose wages were below union scale. These excluded workers included blacks--who have long suffered discrimination from the building trades unions--and non-union workers more generally.

Moreover, construction craft unions insist that unskilled laborers get paid inflated wages to discourage contractors from hiring them. If a contractor has to pay an entry-level laborer almost as much as a skilled worker, he will often hire the more versatile worker, even if that worker winds up primarily doing unskilled work.

Davis-Bacon’s bias in favor of skilled workers especially harms minorities. Blacks, for example, are significantly less likely than whites to be skilled construction workers, but almost one-and-one-half times as likely as whites to be unskilled workers.

Enforcement of union work rules compounds Davis-Bacon's discriminatory effects by limiting the ability of unskilled workers to receive on-the-job training. A laborer who so much as picks up a hammer or a wrench is immediately classified as a carpenter or plumber, and must be paid at a skilled worker's rate. Under union practice, the only category of unskilled workers who may receive training for skilled positions are workers who receive one of the few available slots in a registered apprenticeship program, or to find a rare "helper" job, which are sometimes permitted on Davis-Bacon projects.

Minority contractors, meanwhile, find that Davis-Bacon's pro-union bias, opaque regulations, and expensive compliance costs create a tilted playing field, favoring established, white-owned union construction companies.

28 Comments
The Myth of the "Constitution-in-Exile" Movement Pejman Yousefzadeh has a nice column on The Myth of the "Constitution-in-Exile" Movement up on Tech Central Station. Here is how it begins:
Last week, I wrote about the conspiracy-mongering regarding the existence and function of the Federalist Society that has become part of the judicial confirmation wars and has emerged as a major talking point against right-of-center judicial nominees. There is another conspiracy-mongering campaign that is designed to serve the same purpose and it has something to do with an alleged "Constitution-in-exile" movement of conservatives and libertarians determined to bring about wholesale changes in the American legal and political structure.
I would add that a major difference between "Restoring the Lost Constitution" and a "Constitution-in-Exile"—as defined by those who are using this term—is that whereas they imagine a desire by conservatives and libertarians to return to a list of pre-1937 results, the real desire is to restore portions of the Constitution that have been systematically redacted in the name of expanded government power at both the state and national levels. Of course, restoring the Commerce Clause, Necessary and Proper Clause, Second Amendment, Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment would certainly yield "results" I think are favorable, these results would hardly comport with some list of pre-1937 doctrines. Ironically, some of the Court's current doctrines are better grounded on the original meaning of these clauses than they are on distorted readings of other clauses. For those who may have missed it at the time, I debated Cass Sunstein on the "Constitution-in-Exile" meme on LegalAffairs.com. There I greatly expand upon the issues I raise in this post, so, if you have any questions, you should probably check out that debate.
37 Comments

Thursday, October 13, 2005

"Criminalizing Science,"

in America and in Canada, and from the Left as well as from the Right — Virginia Postrel writes about this in her Forbes column, and makes some excellent points. An excerpt:

As long as religious conservatives object to a specific procedure--destroying embryos--rather than to genetic research or life extension in general, it's possible to treat their concerns as a technical problem.

You can't say the same for the antibiotech left. In liberal Canada, in fact, the law defines cloning expansively. Future procedures that might avoid religious objections would still be illegal. The goal is to stop certain research altogether.

That may sound strange to Americans. To many liberal Democrats reproductive choice and scientific progress are touchstone values. But they aren't the only values on the activist left. For many environmentalists, most famously Bill McKibben and Jeremy Rifkin, tampering with genetic nature is inherently wrong. How you do it is a minor detail.

Some feminists object to egg donation, paid or unpaid, for research or conception. . . . [And g]enetic research also offends egalitarians. They fear that the rich will benefit first or that money for research will come from social programs. Social justice, argues Marcy Darnovsky of the Center for Genetics & Society in Oakland, Calif., "means not just ‘no designer babies,' but also ‘no designer medicine.'" . . .

Thanks to my colleague Grant Nelson for the pointer.

57 Comments
How Do You Define "Two"?

Mathematicians have wrestled with this question (which is more complex than most laypeople would likely think), but now it turns out that lexicographers have, too. "The cardinal number equal to the sum of 1 + 1," dictionary.com gives as the first definition.

Maybe I shouldn't find the definition odd, but I do -- it just seems so utterly pointless in a dictionary, even if completely accurate. (A non-English-speaker might need to translate the word into the number, but "2" would have sufficed for that.) Yet of course they needed something accurate, even if it didn't really help the readers much.

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News Flash: John Roberts Does Not Have a License To Drive an Eighteen-Wheeler:

Well, maybe the story I just read is not quite that unnewsworthy, but it's close. From The AP:

Supreme Court nominee Harriet Miers, who once owned a .45-caliber revolver, is not licensed to carry a concealed handgun in Texas. State officials refused Monday to reveal whether she has ever been licensed.

Miers' brother gave her the Smith & Wesson handgun when he was worried about her living alone in Dallas. Judge Nathan Hecht of the Texas Supreme Court, a longtime friend of Miers', has said she kept the gun for a long time. . . .

State law requires the release of information about license holders but not former license holders, said Pamela Smith, assistant general counsel for the agency.

A person in Texas can own a gun without a concealed handgun license. Texas is one of 43 states that allow concealed weapons, and more than 230,000 residents are registered under the law.

The Texas state archives on Monday released thousands of pages of documents related to Miers' days as chairwoman of the Texas Lottery Commission, from 1995 to 2000, and her correspondence with then-Gov. George W. Bush. . . .

Now I did get an e-mail from someone who said that he'd heard that Miers did have a concealed-carry license, so I suppose the article has value in rebutting this rumor (though only in some measure, since it speaks only of current Texas licenseholders; if Miers lives in Virginia, for instance, she might have a Virginia license).

But my sense is that it's a pretty low-level rumor, which leaves me still wondering why her lack of a concealed-carry license -- a lack that she shares with the overwhelming majority of Texas gun owners (only a bit more than 1% of the Texas population has a concealed-carry license, which probably amounts to no more than 3% to 5% of the Texas gun-owning population) -- is a news item, especially one for the first paragraph in the story. There's nothing illegitimate about noting this; I'm just surprised that the author and his editors saw it as worth noting.

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Yes, It's Somewhat in Bad Taste, But It Is Pretty Funny:

See this Chicago Tribune obituary:

Theodore Roosevelt Heller, 88, loving father of Charles (Joann) Heller; dear brother of the late Sonya (the late Jack) Steinberg. Ted was discharged from the U.S. Army during WWII due to service related injuries, and then forced his way back into the Illinois National Guard insisting no one tells him when to serve his country. Graveside services Tuesday 11 a.m. at Waldheim Jewish Cemetery (Ziditshover section), 1700 S. Harlem Ave., Chicago. In lieu of flowers, please send acerbic letters to Republicans. Arrangements by Chicago Jewish Funerals . . . .

Assuming this was indeed Mr. Heller's last wish (or his family's plausible inference about his wishes), I have to admire his spunk and vinegar, even if I wouldn't write my own obituary in a similar way.

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Exclusive Video: The Conservative Ice Age? Since no one seems to be blogging today (a first?), I thought I would post this link to Right Side Redux, where you can find an amusing video illustrating the question: Is a conservative Ice Age upon us?

The same site also offers a Pro-Miers and Con-Miers Arguments with Sources, the origins of which it describes thusly:
My head is swimming. I am literally vacillating back and forth, pro then con then pro then con, for Miers. There are very good arguments on both sides. My Program Management background wants me to make a list. So here it is.
3 Comments

Wednesday, October 12, 2005

Drezner Defends Schelling:

Dan Drezner is happy Thomas Schelling won the economics Nobel, and cheerfully defends Schelling's reputation against charges he encouraged "controlled escalation" and "punitive bombing" in Vietnam.

Related Posts (on one page):

  1. Drezner Defends Schelling:
  2. The Econ Nobels:
19 Comments
Bainbridge Poll on Miers Nomination:

Steve Bainbridge is running a poll on the Miers nomination--For, Against, or Wait and See. Vote here.

42 Comments
Reasonable Suspicion and the Exclusionary Rule: I very much enjoyed reading Craig Lerner's new paper, Reasonable Suspicion and Mere Hunches, linked to earlier today by co-blogger Todd, but I think it overlooks the critical reason why courts have required objective, articulable facts to conduct a Terry stop. As I read Craig's paper, he argues that the requirement of ex ante articulable facts should be dropped, and replaced with an ex post examination of whether the officer's conduct was reasonable based on the entirety of the circumstances. The entirety of the circumstances should factor in whether the officer's behavior was effective in identifying criminal conduct: Specifically, if the police are acting on hunches but catching lots of bad guys, the courts should let them act on hunches.

  The problem with this argument, I think, is that courts regulate Terry stops almost exclusively through the exclusionary rule. This results in a selection bias problem: Of all the Terry stops that the police conduct, the ones that appear in appellate opinions are the the subset in which the stop led to an arrest and conviction. These are the cases in which the suspect was guilty, and the officer was right. Civil cases alleging improper Terry stops are theoretically possible, but almost never brought: qualified immunity makes such cases very hard to win, and damages usually are very low. (Lerner alludes to the possibility of a selection bias on page 72, but only in the course of cautioning the reader as to why we can't conclusively say that officer hunches are almost always right based on a reading of published cases.)

  My sense is that the current law of Terry stops can be explained in large part as a response to this selection bias. Judges require objective evidence rather than "mere hunches" because they realize that they only see the cases in which "mere hunches" proved correct. It's hard to craft a rule on that basis: If you as a judge or Justice only see the subset of successful stops, then you'll have no idea how to apply the law to permit stops that have a high likelihood of success but prohibit stops that have a low likelihood of success. The judges don't get to see any empirical evidence of the unsuccessful stops, as those cases don't normally lead to litigation. This context makes it quite hard for judges to perform the kind of ex post reasonableness analysis that Lerner seeks, and I think may explain why current law sticks to the requirement of objective and articulable facts ex ante. It's not an ideal solution, but it's probably better than the realistic alternatives.

  That's my tentative reaction, at least. I just skimmed the piece, so it's quite possible that I'm missing something important. And as Todd says, it's a very thought-provoking paper.

  UDPATE: I wonder what Justice Lammers thinks of Lerner's proposal.

Related Posts (on one page):

  1. Reasonable Suspicion and the Exclusionary Rule:
  2. Reasonable Suspicion and Mere Hunches:
42 Comments
Legal Times Op Ed on Miers:

This week's Legal Times contains my op ed on the Miers nomination (subscriber only). The column expands on some of the points I made last week on "The Court and the Legal Culture" and responds to those who have suggested that I should be careful what I wish for. (Also, I didn't choose the title for the Legal Times column.)

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Ben Barros on O'Connor, Midkiff, and Kelo:

Intersting post by Ben Barros looks at the SCOTUS conference notes on Midkiff and Justice O'Connor's effort to retreat in Kelo from the sweeping language she used there. An excerpt:

In light of the recent furor over Kelo v. New London, Justice O'Connor's opinion in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), seemed like a good place to start. Midkiff was the Court's leading pre-Kelo statement on the meaning of "public use" in the eminent domain context. The Court's thought-process in Midkiff is interesting because Justice O'Connor's opinion for a unanimous Court articulates a broad conception of public use that O'Connor later came to regret in Kelo.

***

Justice O'Connor came to regret the broad language of Midkiff, noting in her Kelo dissent that "There is a sense in which this troubling result follows from errant language in Berman and Midkiff. . . . [W]e said in Midkiff that '[t]he "public use" requirement is coterminous with the scope of a sovereign's police powers.' This language was unnecessary to the specific holdings of those decisions." I will address the rest of Justice O'Connor's dissent in a future post, but this particular statement rings very true. The broad concepts articulated in Berman, and strongly reinforced in Midkiff, arguably mandated the result in Kelo. Had Midkiff in fact been decided in a narrow fashion based on its unique facts (among other things, unlike most exercises of eminent domain, it did not displace the people in possession of the homes being taken), Kelo may have come out differently. Or it may have come out as it did, but Justice O'Connor's dissent wouldn't have been weakened by the need to eat her own words.

Midkiff therefore contains a moral that the Justices and their clerks would do well to heed -- the full consequences of grand statements of principle are rarely clear when articulated. They therefore should be used with great caution, because they might come back to bite you.

The most amusing hypothesis that I have heard to explain O'Connor's "evolution" from Midkiff to Kelo is that she knew she was retiring at the end of this term, and Kelo represented her transition from Washington beltway cocktail parties to Arizona ranchers cocktail parties so she wanted to make sure that her personal popularity remained intact with the relevant constituencies. Talk about legal realism!

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[Puzzleblogger Kevan Choset, October 12, 2005 at 10:11am] Trackbacks
What do these people

have in common?

Tenor Luciano Pavarotti, Actor Hugh Jackman, Actor Kirk Cameron, Gold Medalist Marion Jones, Puzzleblogger Kevan Choset.

(Answer below.)

(show)

15 Comments
Reasonable Suspicion and Mere Hunches:

My colleague Craig Lerner has a brilliant new piece exploring the implications of modern cognitive science for the idea of "hunches" by experienced police officers and the dilemma they present for the modern police system. As he puts it in the Abstract to his new article "Reasonable Suspicion and Mere Hunches":

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the "reasonable inferences" for their suspicion, and not merely allude to a "hunch." Since Terry, the American legal system has discounted the "mere" hunches of police officers, requiring them to articulate "specific" and "objective" observations of fact to support their decision to conduct a stop and frisk. The officer's intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are often predicated on emotions. Even as courts have, over the past two generations, grown more dismissive of hunches, there has been a counter-revolution in the cognitive sciences. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, complex information about their environment and make sense of the world. If the legal rules governing police conduct are premised on a mistaken assumption about human cognition, can one craft a doctrine of policing that credits the wisdom of hunches? Can the legal system defer to police officers' intuitions without undermining protections against law enforcement overreaching?

This article argues that, to some extent, judicial skepticism about police hunches can and should be abandoned. As a practical matter, the current legal regime substitutes palliative euphemisms for useful controls on police discretion. When an energetic police officer has a hunch that something is wrong and action is imperative, the officer will simply act. Months will pass before a suppression hearing, and by then it will be a simple matter to reverse-engineer the objective "reasons" for the stop - e.g., "I saw a bulge." The legal system in practice simply rewards those officers who are able and willing to spin their behavior in a way that satisfies judges, while it penalizes those officers who are less verbally facile or who are transparent about their motivations. It would be preferable if politically accountable authorities joined the courts in monitoring police practices. The focus should be less on what police say after the fact and more on what they do - that is, how successful police officers are in catching criminals and how respectful they are of all citizens.

The point will be familiar to readers of Hayek and Polanyi who draw on the notion of tacit knowledge, and in particular, the notion that much knowledge that derives from experience, tradition, and habit is unarticulated knowledge which is no less valuable or important for being unarticulated or unarticulable. As Lerner notes, the recognition that such knowledge exists places a Court in the position of either excluding this valuable knowledge from the adjudication, or forcing experienced police officers to falsely articulate an untrue explanation for what is fundamentally unarticulated knowledge.

Craig has identified a neat puzzle here.

Update:

Doh--I initially forgot to link to the paper. I've corrected it now.

Related Posts (on one page):

  1. Reasonable Suspicion and the Exclusionary Rule:
  2. Reasonable Suspicion and Mere Hunches:
45 Comments
Nice Review of

You Can't Say That! in The Freeman: Ideas on Liberty.

Dershowitz on Finkelstein:

I don't always agree with Alan Dershowitz, but I'm with him in his battle against the execrable Norman Finkelstein, whom he eviscerates here.

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Dartmouth Alumni Association Petition Slate:

I see that a group of Dartmouth Alumni have qualified for the ballot as petition candidates to run for the leadership of the Dartmouth Alumni Association Executive Committee. As Dartmouth alumni may be aware, a new Dartmouth alumni constitution has been proposed that would dramatically change the election process for voting for trusteees, and in particular, would change the rules for petition candidates to gain access to the ballot as well as changing the voting rules for trustee elections. The full text of the proposed alumni constitution is available Alumni Relations homepage. The petition slate for the leadership of the alumni association pledge that they will oppose the proposed changes to the alumni constitution that would change the trustee petition process and voting rules.

You should visit their web page if you want more information (including commentary on the proposed alumni constitution), but they summarize their platform as follows:

Our petition slate of candidates pledges to:

Amend the existing constitution to allow all alumni to vote in Association elections, whether they are physically in Hanover or not; restore the right of alumni to vote for the second term of alumni trustees (taken away from alumni in 1990 without notice); and insist the Administration accept budget transparency as offered at many other colleges.

Preserve the current petition trustee electoral process, provide full disclosure of election results; oppose any change in the constitution that restricts alumni participation; give dissenting voices access to College publications.

Support the preservation of Dartmouth as primarily a liberal arts college, with its resources concentrated toward achieving the highest level of undergraduate education.

I have not been able to locate any information about the those who have been nominated by the alumni association or whether they support the proposed changes to the alumni constitution and trustee election rules. If that information is available, somebody please send me the information and I will update this post to provide links to the relevant material.

Voting for the alumni association leadership will be October 23 (Sunday of Homecoming Weekend) at 11:00 a.m. Specific information about the meeting is available here.

Regardless of who your support and your views on the new alumni constitution and trustee election rules, I hope that all Dartmouth alumni will make an effort to attend the meeting of the alumni association meeting to vote for the alumni leadership and to express your views on the new constitution. This is, obviously, a very important election for Dartmouth's future.

Let me make very clear that this post is not intended as an endorsement of either the alumni association nor the petition slate, but simply urging alumni to participate in the alumni association meeting on October 23.

8 Comments
As usual,

lots of interesting stuff over at Overlawyered.com.

"Sexist"?

You may have heard about this from the Today show already, but c'mon, this is ridiculous:

Asked whether the nominee's detractors are sexist, Mrs. Bush, appearing alongside her husband, said, "That's possible, I think that's possible." The statement echoed comments by presidential adviser Ed Gillespie, who last week suggested that conservatives who opposed Miss Miers are elitist and sexist.

Conservative activists expressed distress over the White House tactic of questioning their motives.

"I have heard people say it's a slap in the face of conservatives, but the consensus -- and certainly my view -- is that it is sad and disappointing," said Christopher C. Horner, a senior fellow at the Competitive Enterprise Institute.

"We've seen the White House and now the president and the first lady repeating things that their lieutenants have said that are the fall-back arguments of the left -- the questioning of conservatives' motives when conservatives are, in fact, questioning the nominee's qualifications," Mr. Horner said.

Some critics of the nomination say Mr. Bush missed a chance to pick an experienced judge with conservative credentials.

"I don't think it's fair to call us sexist or elitist just because we ask the question, 'Why did he choose her instead of so many better-qualified candidates?' " said Richard Cizik, vice president for governmental affairs at the National Association of Evangelicals.

More than anything, of course, this shows how vacuous charges of "sexism" and "elitism" are as substitutes for thinking. But in this context, it is demonstrably absurd. I am fairly certain that had the President nominated Alice Batchelder of the 6th Circuit (Akron Law School) or Priscilla Owen of the 5th Circuit (Baylor Law School), not to mention Edith Jones or Janice Rodgers Brown then I suspect that we wouldn't have to worry about the First Lady's sensitivies being upset with the criticisms we have heard.

Does the White House really want to go down the track of arguing that just because its friends are skeptical about the merits of this nomination they are sexist and elitist?

39 Comments
Happy Birthday to My Brother Sasha,

who is turning 32 today, or 20, as we computer programmers prefer to call it.

20 Comments
GOP Senate Judiciary Staffers Resist Miers Nomination: From the New York Times:
  As the White House seeks to rally senators behind the Supreme Court nomination of Harriet E. Miers, lawyers for the Republican senators on the Judiciary Committee are expressing dissatisfaction with the choice and pushing back against her, aides to 6 of the 10 Republican committee members said yesterday.
  "Everybody is hoping that something will happen on Miers, either that the president would withdraw her or she would realize she is not up to it and pull out while she has some dignity intact," a lawyer to a Republican committee member said.
  All the Republican staff members insisted on anonymity for fear of retaliation from their supervisors and from the Senate leaders.
  . . .
  "You could say there is pretty much uniform disappointment with the nomination at the staff level," another Republican on the committee staff said. "It is clear there is quite a bit of skepticism, and even some flashes of hostility."
  Another Republican aide close to the committee said, "I don't know a staffer who approves of this nomination, anywhere. Most of it is outright hostility throughout the Judiciary Committee staff."
57 Comments
Dobson Comments on Rove Talk: On his radio show today, James Dobson disclosed the contents of his conversations with Karl Rove about Harriett Miers. Recall that Dobson justified his support for Miers shortly after her nomination was announced in part on information that he "probably shouldn't know." According to Dobson, part of the information was that some conservative candidates had taken themselves out of the running for the nomination. Here is the gist of the rest from the transcript:
  What did Karl Rove say to me that I knew on Monday that I couldn’t reveal? Well, it’s what we all know now, that Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life.
  . . .
  We did not discuss Roe v. Wade in any context or any other pending issue that will be considered by the Court. I did not ask that question. You know, to be honest, I would have loved to have known how Harriet Miers views Roe v. Wade. But even if Karl had known the answer to that and I’m certain that he didn’t, because the President himself said he didn’t know, Karl would not have told me that. That’s the most incendiary information that’s out there and it was never part of our discussion.
  Any thoughts?
29 Comments

Tuesday, October 11, 2005

Damning With Faint Praise:

"She's a better choice than [Alberto] Gonzales." An acquaintance of mine, with close ties to top Republican lawyers, when asked to provide the best defense he's heard of the Miers nomination.

[Puzzleblogger Kevan Choset, October 11, 2005 at 3:10pm] Trackbacks
What Did They Do?

This puzzle comes to us courtesy of VC friend James Taranto:

Richard Nixon did it three times.

Jimmy Carter, Ronald Reagan and Bill Clinton all did it twice.

Barry Goldwater, Walter Mondale, Michael Dukakis and Bob Dole all did it, but Hubert Humphrey, George McGovern and John Kerry did not.

Abraham Lincoln and both George Bushes failed to do it twice, and William Jennings Bryan failed three times.

What is it?

If you've figured it out, please post some other examples of people who have and have not done it before giving away the actual solution.

31 Comments
Predicting a Miers Vote: The Supreme Court announced today that it will hear Zurich Insurance Co. v. Chatham County (04-1618), a sovereign immunity case. I think I know how Harriett Miers will vote in this case if she is confirmed to the Supreme Court. Here is SCOTUSblog's summary of the case:
  Seven questions are raised in the petition, all dealing with a county government's claim of sovereign immunity when a drawbridge over a waterway collapsed, damaging a boat underneath. The Eleventh Circuit ruled that Chatham County was acting as an "arm of the state" in operating the drawbridge, and thus was entitled to "residual sovereign immunity" based on the common law, rather than the Eleventh Amendment. The petition contends that the county alone would be liable for any money damages for defective operation of a drawbridge.
  I'm pretty sure that, if confirmed, Hariett Miers will vote to hold everyone liable for the defective design and building of the drawbridge. Why? Because she's a strict constructionist.
24 Comments
Medical Marijuana at Yale: No more blogging today, as I am headed down to New Haven to speak about the Raich case at Yale Law School. The panel is entitled, "Raich v. Gonzales: Is the Lopez Revolution Over?" I will be criticizing the Court's decision, and Sam Bagenstos will be defending it. The event begins at 5:30pm in room 121.
The Supreme Court and Constitutional Theory: Ann Althouse offers some thoughts on the Miers nomination:
  [Miers'] lack of interest in theory has bothered a lot of lawprofs, including me. Conlawprofs are biased in favor of theory. If you are going to devote your life to the subject of constitutional law, as an academic subject, you are probably the sort of person who is attracted to abstractions, theories, and larger patterns and aspirations. . . .
  Thinking about it that way has begun to thaw my opposition to Miers. Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk? Perhaps the Court is harmed by an excess of interest in the theoretical. A solid, experienced lawyer like Miers, with no real background in constitutional law, might look at the text, the precedents, the briefs, and use the standard lawyer's methods to resolve the problem at hand. What is wrong with having that style of analysis in the mix? We need a safeguard against the excessively theoretical.
  This brings up two interesting questions: First, how many of the sitting Justices are constitutional theorists? And second, how do we know that Harriett Miers lacks an interest in theory? On the latter question, it seems to me that we don't really know enough to say.
26 Comments
"Blogging Prof Fails to Heed His Own Advice": The New York Sun has an interesting piece today about Daniel Drezner's tenure denial, as well as the broader question of blogging and the academy. Hat tip: Howard.
8 Comments
Miers and the ADL Jurisprudence Award: One of the items that stands out on Harriett Miers' resume is that she was honored in 1996 by the Anti-Defamation League, which presented her with a Jurisprudence award for "her devotion to the principles enshrined in the Constitution and for symbolizing commitment to the democratic values which characterize America." The obvious question is, what did Miers do to merit the award?

  Some conservatives have concluded that Miers must have done something liberal, but my own research suggests a different answer. Contemporaneous news accounts suggest that the local chapter of the ADL gave the award to recognize the public service of a civic-minded, prominent, and politically well-connected local attorney.

  I plunked down $2.95 to purchase a copy of a 1996 Dallas Morning news article announcing that Miers had been picked to win the award. It focuses both on Miers' connection to George Bush and her accomplishments as a law firm head and state bar association president. An excerpt of the 1996 article:
  Ms. Miers has blazed a professional path that not only includes the leadership post in one of Dallas most prestigious law firms - where she is the first woman president - but also served as the first woman president of both the Dallas Bar Association and the State Bar Association.
  She is also the first woman to receive the Jurisprudence Award, whose past recipients include the late Donald C. McCleary, Tom Unis, Tom Luce, Harold F. Kleinman, Robert L. Blumenthal, Sidney Stahl and Larry Schoenbrun.
  Then-Governor Bush and Laura Bush were honorary Co-Chairs of the award ceremony, and it was at the ceremony that Bush famously described Miers as a "pit bull in size 6 shoes." (Other Bush quotes from the same talk: "When it comes to a cross-examination, she can fillet better than Mrs. Paul." "When she’s out for justice, she’s a formidable character.")

  I plunked down another $2.95 to get the Dallas Morning News story reporting on the award, and it had the following:
  Mark Briskman, regional director of the Anti-Defamation League, said the luncheon audience of more than 400 was the largest ever. "We picked the right recipient," he said. ". . . She commands that type of respect in the community."
  The Anti-Defamation League is a civil rights and human relations group dedicated to improving intergroup and interfaith relations and opposing extremist and anti-democratic forces.
  Ms. Miers praised the league.
  "Each of us must be prepared to change unacceptable behavior rather than be too busy, too reluctant, too aloof and maybe even sometimes too afraid," she said.
  What does it mean? Well, the sense I get from these news reports — and other reports on the same local award given other years — is that the ADL award was not for anything with political or ideological overtones. The ADL was simply recognizing a prominent and civic-minded lawyer.

  UPDATE: I deleted a phrase that initially characterized the ADL as "generally identified as left-of-center" because on reflection I didn't think it fair to characterize the ADL that way; I don't know enough about the organization to give my own assessment of its political leanings, and I was being lazy in accepting the description made by the critics whose views I was trying to challenge. Thanks to several commenters for pointing out the problem.
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John Fund Predicts "Surprises" for Miers Nomination: John Fund appeared on Hugh Hewitt's radio show today. An excerpt:
  [W]e are going to see six or seven surprises come down the road the next few days, about Harriet Miers. Now all of them are sustainable individually. The problem is because the White House was completely unprepared for this, they're doing a disservice to you and her supporters.
  . . .
  Harriet Miers was in charge of the vetting process for the Supreme Court nominee[.] Since she ended up being picked herself, please explain to me exactly how much vetting was done, who did the vetting, and to what extent the vetting that was done on her was different, or the same as it would have been for any other nominee? You need to get the answers to those questions, because I have to tell you. I have gotten information on the vetting that was done with her. And frankly, it doesn't past muster for even a district court appointment.
  I have no idea what to make of this, if anything, but I guess we'll find out over the next few days. (Hat tip: Glenn)
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Law Professors Playing With Dolls: Over at Concurring Opinions, Daniel Solove is reverting back to childhood. Seems like $14.99 well spent.
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Not Quite: Howard links to a World Net Daily article headlined "Harriet Miers contributed to Hillary's election in 2000". If you read the piece carefully, though, you see that the facts don't live up to the headline. Harriett Miers gave to her law firm's Political Action Committee, and the firm PAC gave money to lots of candidates -- including Hillary Clinton's campaign.
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Monday, October 10, 2005

David Frum Reports: David Frum formerly worked with Harriet Miers and early last week dlsclosed his personal knowledge of her as a colleague. Since then, he has done additional reporting from his sources within the administration as well as reading her articles that have been posted by the University of Michigan here. Check out his posts here and here.
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What Sort of Supreme Court Nominees "Grow in Office"?

The OpinionJournal article by John Fund (tip to Orin) recounts the long list of appointees by Republican Presidents who have failed to reflect the appointing President’s principles, listing seven failures to keep the Republican faith: Justices Warren, Brennan, Blackmun, Stevens, Souter, O’Connor, and Kennedy:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.

Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."

Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.

An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be.

Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.

Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.

Some of these seven (eg, Stevens and Kennedy) have been very good to excellent Justices IMO--and most of them have made important positive contributions.

Yet since the Stevens nomination, the only two Republican-appointed Justices who stayed fully true to form were Scalia and Thomas. Consider how these two differed from the other Republican appointments over that period (Stevens, O’Connor, Kennedy, and Souter). Scalia and Thomas were movement conservatives who before their nomination were publicly attacked for their views. Before appointment, they had taken public positions that were perhaps broadly popular with the general public, but unpopular with educated elites and the press. Scalia and Thomas had sharpened and defended their ideas against attack.

By contrast, before their nominations Justices Stevens, O’Connor, Kennedy, and Souter had not faced much public criticism for their judicial and legal ideologies. Their conservative ideologies were not as well formed, if they existed at all. Thus, they “grew in office.” In her conservative background before appointment, Miers is much more like O’Connor, Kennedy, and Souter (and Blackmun from an earlier era) than like Scalia and Thomas.

What surprises me is that the point I am making here is not a new one. Certainly, Bush staffers must understand that Miers has the perfect profile for making a strong turn to the left once she has served on the bench for a few years. No one can predict what she will do on the Court, but I would expect to see substantial movement to the left—later, if not sooner. It wouldn’t surprise me if Miers started out to the right of Roberts and ended up well to his left.

So where does Chief Justice Roberts fit into all this? On the one hand, Roberts is a conservative movement lawyer (his Reagan-era memos show this). On the other hand, unlike Scalia and Thomas, Roberts kept his head down and did not have to defend his own possibly unpopular opinions in public. From the simple analysis in this post, one would expect Roberts to be a less stalwart conservative than Scalia or Thomas, perhaps more in the mold of O’Connor or Kennedy, moving somewhat to the left, but not strongly so.

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Did Miers Vet Judicial Nominees? One of the arguments on behalf of Ms. Miers' qualification to be on the Supreme Court made by the White House and others is her role in vetting prospective judicial nominees. One thing that the blogosphere is good at is a fact checking, and here is a post that questions the facts upon which that claim is based.
Harriet Miers has held the position of Counsel to the President since February 3, 2005, when the previous occupant of that office, Alberto Gonzalez, was confirmed by the Senate to be US Attorney General. Since that time, President Bush has made twelve nominations to the US Circuit Courts, all of them on February 14, 2005, eleven days after Ms. Miers became White House Counsel. Eleven of these nominees were originally nominated during Bush's first term but never received a vote in the Senate.

Terrence W. Boyle (Fourth Circuit): Originally nominated 9/4/2001
Janice R. Brown (D.C. Circuit): Originally nominated 7/25/2003
Richard A. Griffin (Sixth Circuit): Originally nominated 6/26/2002
Thomas B. Griffith (D.C. Circuit): Originally nominated 5/10/2004
Brett M. Kavanaugh (D.C. Circuit): Originally nominated 7/25/2003
David W. McKeague (Sixth Circuit): Originally nominated 11/8/2001
William G. Myers (Ninth Circuit): Originally nominated 5/15/2003
Susan B. Neilson (Sixth Circuit): Originally nominated 11/8/2001
Priscilla R. Owen (Fifth Circuit): Originally nominated 9/4/2001
William H. Pryor (Eleventh Circuit): Originally nominated 4/9/2003
Henry W. Saad (Sixth Circuit): Originally nominated 11/8/2001

Sources: Federal Judicial Vacancy Archives (December 1, 2004 and November 6, 2002)

Should Harriet Miers receive credit for Bush's renomination - on her twelfth day on the job - of a slate of appellate nominees from his first term?
I have not myself fact checked this fact checking so perhaps there is more to the story of her role vetting nominees than is reflected by this list. [Is it really true that there have been no Court of Appeals nominations since February? Are all the vacancies either filled or pending confirmation?] For one thing, Ms. Miers was certainly present for the vetting and selection of John Roberts for the Supreme Court. If you are in love with that decision, then that is a mark in her favor.

(Hat tip to The Corner)

Update: One further thought. If the White House has made no nominations to the appellate court in the eight months during which Harriet Miers has been White House Counsel, does this reflect well on her tenure? Pretty soon, we will be in "lame duck" mode when no judicial nominees are confirmed in advance of the next presidential elections.

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The Latest News From the Earthquake in Pakistan is just terrible.
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"They Can't Figure Me Out": John Fund has a very interesting piece over at Opinion Journal about interviews he had with people who know Harriett Miers:
  I have changed my mind about Harriet Miers. Last Thursday, I wrote in OpinionJournal's Political Diary that "while skepticism of Ms. Miers is justified, the time is fast approaching when such expressions should be muted until the Senate hearings begin. At that point, Ms. Miers will finally be able to speak for herself."
  But that was before I interviewed more than a dozen of her friends and colleagues along with political players in Texas. I came away convinced that questions about Ms. Miers should be raised now--and loudly--because she has spent her entire life avoiding giving a clear picture of herself. "She is unrevealing to the point that it's an obsession," says one of her close colleagues at her law firm.
  White House aides who have worked with her for five years report she zealously advocated the president's views, but never gave any hint of her own. Indeed, when the Dallas Morning News once asked Ms. Miers to finish the sentence, "Behind my back, people say . . .," she responded, ". . . they can't figure me out."
  Thanks to Confirmthem.com for the link.
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The Econ Nobels:

This year's Nobel Prize in Economics has been awarded to Thomas Schelling and Robert Aumann for their work on game theory. It's a nice pairing, as Schelling's work is quite accessible and non-technical, whereas Aumann's is more mathmatically oriented. Sometime VC co-blogger Tyler Cowen provides links on the announcement here with his perspective on what the prize means. He also has separate posts here on Schelling and Aumann.

Related Posts (on one page):

  1. Drezner Defends Schelling:
  2. The Econ Nobels:
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Lots of Interesting Stuff up at Concurring Opinions today.
What Was Dobson Told? A comment on another thread asks:
I think the question whether Bush has created an opening to inquiry about his previous communications with Miers is very interesting and I hope Randy Barnett will comment on it.
Because I have not given the issue of executive privilege enough serious thought, I do not have an informed view of this matter—though my instincts tell me that separation-of-powers concerns argue strongly against compelled disclosure to the Senate of conversations between a prospective nominee and the President or his staff.

For me, the more interesting question concerns reports that the White House "cleared" the nomination with outsiders, including James Dobson of Focus on Families, which seems to have been acknowledged by Dobson who has based his support of the nomination, in part, upon information supplied to him by the White House (though his exact sources are not made clear). According to press reports, some senators appear interested in calling him to see what he was told.

It strikes me that information shared with those outside the executive branch are not privileged, and that separation-of-powers concerns are not at as pertinent, if relevant at all. But perhaps I am completely wrong about this.

So my entirely nonrhetorical question is whether Dobson can properly be called to testify and what the appropriate scope of that testimony would be? Should it be limited to what White House officials (as opposed to others) told him about the particular beliefs of the nominee (as opposed to other types of information)? Should it be limited to any assurances he was told were made by the nominee to members of the executive branch? Or would the Senate's demand for such testimony be entirely improper and out of bounds?

Unlike the testimony of the nominee herself, this information cannot compromise the ability of the nominee to decide future cases, unless it reveals that this independence has already been compromised by her private assurances to the White House, which I do not mean to suggest I believe has occurred. To the contrary, I assume it has not.

Let me also be clear that I do not think there was anything at all improper about consulting with outsiders including Mr. Dobson. Arguably the problem with this nomination was too little outside consultation rather than too much, which would explain why the White House seems to have been blind-sided by the intensity of opposition to the nomination. My question only concerns the propriety of the Senate's inquiring about information conveyed by the White House to others, rather than feedback provided outsiders to the White House. What do you think?

(Comments that are not respectful of others in tone as well as substance, as well as comments that are irrelevant to this thread, will be deleted.)

Update: On the ACSBlog, Stanford law professor Robert Weisberg predicts the nomination will be withdrawn due to the difficulty of answering procedural questions such as these.

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[Puzzleblogger Kevan Choset, October 10, 2005 at 1:15pm] Trackbacks
What do these movies

have in common?

Proof of Life, Big Daddy, Seven Years in Tibet, Annie Hall, Manhattan Murder Mystery, Witness for the Prosecution.

If you think you know the answer, post in the comments the name of another movie (there are many) that has the same characteristic. Please don't post any of the many trivial examples (you'll know what this means).

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Scalia Interview: Justice Scalia was on the Today Show this morning. An excerpt:
  Maria Bartiromo: There hasn't been a change in the Supreme Court in 11 years. [With a new Chief Justice,] [t]here will be less predictability in terms of what your new colleagues think and how they'll vote on issues.
  Justice Antonin Scalia: Oh I’m not sure there was a whole lot of predictability before. Were you able to call the cases? I wasn't. [Laughs]
  Hat tip: Howard.
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Half of GOP Senators Doubt Miers: From the Monday Washington Times:
  Nearly half of Senate Republicans say they remain unconvinced that Harriet Miers is worthy of being confirmed to the Supreme Court, according to a survey conducted by The Washington Times.
  As with the nomination of Chief Justice John G. Roberts Jr., the vast majority of senators say they will not announce their final decisions about the nomination until after Senate Judiciary Committee hearings, which are expected sometime next month.
  What's troubling for President Bush, however, is that 27 Republican senators -- almost half of his party's members in the chamber -- have publicly expressed specific doubts about Miss Miers or said they must withhold any support whatsoever for her nomination until after the hearings.
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Is Constitutional Law Hard? A Response to Hugh Hewitt: Hugh Hewitt argues that it's wrong to question Harriett Miers' abilities and experience because constitutional law just isn't that hard:
  The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
  . . .
  [T]he most important quality in a justice, from Bork's published point of view, would be humility in the face of majoritarian choices consistent with the federalist framework.
  . . .
  The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
  From this I especially dissent. Simply put: It isn't that hard. It is wrong to argue that it is so. It is anti-democratic to argue that it is so. The Left wants you to believe it is so, and the center-right should resist that.
  . . .
  ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors. Further, some of our justices have spent quite a lot of paper and ink arguing absurd theories that tell us "A" is not "A," with the intent of persuading not the people but other judges of such propositions that the Framers and their friends . . . intended to ban "under God" from the Pledge.
  I was puzzled to read this coming from Hugh Hewitt, as it is so dramatically different from what Hewitt was saying the only time he and I have spoken about constitutional law. Last March, I appeared on Hewitt's radio show to discuss the Terri Schaivo case, and in particular whether federal courts should overturn the state court decisions ordering the withdrawal of Terri Schiavo's feeding tube. At the time, Hewitt was not saying constitutional law was easy. Nor was he invoking the intent of the Framers, or the need for judicial humility and deference to majoritarian wishes. Instead, Hewitt seemed quite committed to inventing a new theory of constitutional law that would empower federal courts to trump the states and order Schiavo's feeding tube reinserted. At one point, he even complained about the failure of the courts to be "creative" in their reading of the Constitution.

  Here's an excerpt from the transcript of the show (HH is Hugh Hewitt, OK is me):
  HH: Professor Kerr, you challenged me to come up with the argument [for why Terri Schiavo's constitutional rights were violated by the state court process], so I spent some time this morning before class, actually, thinking what I would advise the family. And I think the crux of this is that the people who ought to be her guardians, her parents are not because her husband is by operation of law. And that there is obvious and admitted evidence he's living with another woman, by whom he's had two children. Absolutely conclusive proof of estrangement in 50 divorce courts across the United States. In every state, he should not be her guardian. And any state law that elevates her to that violates our sense of due process in the sense that the Cleburne decision violated our sense of due process in not allowing a school for special needs children, or a home for special needs children to open across the street from a school because they feared taunting. Your response to that argument.
  OK: Well, it's an interesting theory. I'm trying to think of how it's supported by existing law.
  HH: Cleburne. [Ed. — Hugh is referring to Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)]
  OK: Well Cleburne essentially held it was irrational to draw a distinction in that case. And here, I don't think you can say it's irrational to say that a husband should not [sic] be responsible for the care of a wife.
  HH: No, I'm saying it's irrational to allow an estranged husband, who's been living with another woman and has two children by her, to announce the decision in opposition to her parent's decision, in a case like this. . . . [I]s that not irrational?
  Later in the discussion, Hugh expressed frustration that the same courts that had invented all sorts of new constitutional rights were failing to be creative with the Constitution in the Schiavo case:
HH: . . . The courts here, have been in recent years, both at the state and federal level, very aggressive at inventing things. Borrowing from foreign law, inventing a right for same sex marriage, etc. Why are they so reluctant on the federal side to be creative, or at least be accommodating of clearly expressed Congressional desire for close scrutiny?
   Now, I don't mean to pick on Hugh; he seems like a super nice guy, and he is very smart. But I have no idea how to square the Hugh Hewitt of today with the Hugh Hewitt of the Schiavo period. As best I can tell, they are diametrically opposite in every respect. And that's exactly why constitutional law is a lot harder that the current version of Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.

  To be fair, I agree with Hugh that Supreme Court Justices don't need to be academic super stars. But they do need to be reasonably self-aware. And my guess is that self-awareness tends to come most often from the experience of testing and evaluating arguments again and again, whether as a judge or in some other forum.
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Sunday, October 9, 2005

Miers and Roe: Here are two recent tidbits that touch on how Harriett Miers might approach Roe v. Wade. First, from the Saturday Washington Post:
  [As a candidate for Dallas City Coucil in 1989,] Miers agreed to sit down with a group of abortion rights activists. Operation Rescue was staging regular protests at area abortion clinics, and the group of about 10 women who met with Miers wanted to know whether she supported a 1985 city ordinance that protected patients from harassment. Four of the women in attendance said in interviews that Miers was immovable.
  "She said, well, I'm sorry, it's murder, and that's that," said Joy Mankoff, founder of a local women's political action network. "There was no room for any discussion."
  And second, from the latest issue of Time Magazine:
  One of the most intriguing insights into the Real Harriet Miers came from her longtime friend, former law partner and sometime love interest Justice Nathan Hecht, who is considered the most conservative justice on the Texas Supreme Court. "This is very important, and I don't think the public understands," he told TIME. "When you take an oath and swear that you will judge cases properly after that, you can't inject your personal views or religious faith into decisions because it would be wrong. You would either be a bad Christian or a bad judge. Religion says a lot about who you are personally, but it says nothing about stare decisis [following precedent], the commerce clause, the First Amendment, search and seizure or any of the issues she's going to deal with."
  UPDATE: For the sake of completeness, I should probably add this article from the Monday New York Times:
  Mr. Dobson, the influential founder of the conservative evangelical group Focus on the Family, has said he is supporting Ms. Miers's nomination in part because of something he has been told but cannot divulge. He has not disclosed the source of the information, but he has acknowledged speaking with Karl Rove, President Bush's top political adviser, about the president's pick before it was announced.
  On his radio program last Wednesday, Mr. [James] Dobson said, "When you know some of the things that I know - that I probably shouldn't know - you will understand why I have said, with fear and trepidation, that I believe Harriet Miers will be a good justice." He added, in a reference to aborted fetuses, "if I have made a mistake here, I will never forget the blood of those babies that will die will be on my hands to some degree."
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Justice Bernstein:

Daniel Solove of Concurring Opinions:

And regarding Supreme Court justices, David Bernstein of the VC has dubbed his new baby girl [Natalie] "a future Supreme Court Justice." If the Harriet Miers nomination doesn't work out, I think that Bernstein's daughter would definitely be on the short list. After all, she has no paper trail and would serve on the Supreme Court for a very long time, which seem to be the leading qualifications to be on the Court these days.

VC readers: I promise, that if confirmed, Natalie will offer Randy, Eugene, Jim, and Orin jobs as her first clerks, and let them write her opinions. Will someone please tell the White House that Natalie thinks that George W. Bush is the smartest person she ever met?

Related Posts (on one page):

  1. Justice Bernstein:
  2. A Future Supreme Court Justice,
White House Releases List of Terrorist Actions Disrupted.--

To support President Bush's claims about thwarted terrorist attacks, the White House has put out a fact sheet that in general language describes plots disrupted:

10 Plots

  1. The West Coast Airliner Plot: In mid-2002 the U.S. disrupted a plot to attack targets on the West Coast of the United States using hijacked airplanes. The plotters included at least one major operational planner involved in planning the events of 9/11.
  2. The East Coast Airliner Plot: In mid-2003 the U.S. and a partner disrupted a plot to attack targets on the East Coast of the United States using hijacked commercial airplanes.
  3. The Jose Padilla Plot: In May 2002 the U.S. disrupted a plot that involved blowing up apartment buildings in the United States. One of the plotters, Jose Padilla, also discussed the possibility of using a "dirty bomb" in the U.S.
  4. The 2004 UK Urban Targets Plot: In mid-2004 the U.S. and partners disrupted a plot that involved urban targets in the United Kingdom. These plots involved using explosives against a variety of sites.
  5. The 2003 Karachi Plot: In the Spring of 2003 the U.S. and a partner disrupted a plot to attack Westerners at several targets in Karachi, Pakistan.
  6. . . .

5 Casings and Infiltrations

  1. The U.S. Government & Tourist Sites Tasking: In 2003 and 2004, an individual was tasked by al-Qa'ida to case important U.S. Government and tourist targets within the United States.
  2. The Gas Station Tasking: In approximately 2003, an individual was tasked to collect targeting information on U.S. gas stations and their support mechanisms on behalf of a senior al-Qa'ida planner.
  3. Iyman Faris & the Brooklyn Bridge: In 2003, and in conjunction with a partner nation, the U.S. government arrested and prosecuted Iyman Faris, who was exploring the destruction of the Brooklyn Bridge in New York. Faris ultimately pleaded guilty to providing material support to al-Qa'ida and is now in a federal correctional institution.
  4. 2001 Tasking: In 2001, al-Qa'ida sent an individual to facilitate post-September 11 attacks in the U.S. U.S. law enforcement authorities arrested the individual.
  5. 2003 Tasking: In 2003, an individual was tasked by an al-Qa'ida leader to conduct reconnaissance on populated areas in the U.S.

Whatever is being done on our behalf, I am shocked that Islamic terrorist actions in the US since 9/11 have not led to any very large losses of life. Since 9/11, among the possible Islamic terrorist actions that occurred on the US mainland are the LAX airport shooting, the DC snipers, and perhaps even the anthrax letters.

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Drezner's Denial and Academic Blogging:

So academic blogger extraordinaire Daniel Drezner was denied tenure at the University of Chicago last week. This was quite a surprise to Drezner's readers (as, he admits, it was to him). I am far from an expert in Drezner's fields of expertise, but I share the sentiment expressed by many of his commenters that I expect him to land on his feet.

An obvious question is what, if any, impact Drezner's blogging had on his tenure vote. From the launch of his blog, Drezner openly acknowledged the risks of blogging for an untenured academic. Senior colleagues may object to the content of blog posts on political grounds, or due to blogs' non-academic tone and content. Time spent blogging may come at the expense of one's academic work -- or it may just appear that way to one's colleagues (particularly those who may be less prominent or less productive). I've often heard academics disparage non-academic writing in terms that suggest it could be a negative in the tenure process, irrespective of the quality of academic work under review. This is one of the reasons I've blogged under a pseudonym -- and will at least until my own tenure vote -- as I want my file, and the work therein, judged on the merits. In my view, that I spend some of my free time blogging is no more relevant to the process than a colleagues' decision to spend his or her time attending theater, performing in dance recitals, or raising children, but there is no guarantee that one's colleagues will agree. Given the stakes involved -- and I suspect they are greater for those lower down the food chain than the University of Chicago -- I decided it was not worth the risk.

As for Drezner, I am happy to report that he has few regrets about his blog.

The very first words I wrote on this blog were: "I shouldn't be doing this. I'll be going up for tenure soon." This is a theme that I’ve touched on several times since then. The point is, I can’t say I didn’t go into this with my eyes open.

That said, if one assumes that the opportunity cost of blogging (e.g., better or more scholarship) was the difference between tenure and no tenure – an unclear assertion at best – then it’s a tough call. From a strict cost-benefit analysis, one could argue that the doors that blogging opened could have been deferred for a few years in return for the annuity of a tenured position at Chicago. That said, if I did things only for the money, I never would have entered the academy in the first place. And I’ve enjoyed the psychic rewards of blogging way too much to regret my choice.

As one of his many fans, I hope this means he will keep on blogging, even if not from the Windy City.

Related Posts (on one page):

  1. Drezner on Blogging & Tenure -- Seven Days Later:
  2. Drezner's Denial and Academic Blogging:
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The Right Coast & Professor Bainbridge on Miers: The Right Coast, one of my favorite blogs, has been on blogging up a storm on the Miers nomination. Check out Mike Rappaport's The Future of Harriot Miers and Tom Smith's Hewitt on Miers Critics.

Professor Bainbridge's Why the Miers Fight is Worth Fighting is also well worth reading. Steve has been on fire.

The Miers nomination has sure brought together a bunch of law profs (and political commentators) who otherwise disagree. George Bush is a uniter after all!
College Think Tank: A group of college students recently started their own think tank, the Roosevelt Institution. Its purpose is to bolster the editors' grad school applications harness the intellect and creative energy of college students to develop solutions for critical public policy problems. Fortunately for them, Paul Horwitz has been hard at work developing a research agenda for the new enterprise.
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