Saturday, January 14, 2006

Washington Post on Alito: The Washington Post has a thoughtful editorial supporting the confirmation of Samuel Alito:
However one reasonably defines the "mainstream" of contemporary jurisprudence, Judge Alito's work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.
Lileks, Einstein, Beethoven, Hewitt, Alito, Krauthammer, Speilberg, Munich, Hitler, Palestinians, Kennedy, the Owl Club, and Betsy's Page.--

In surfing some of the blogs today, I was struck by a string of interesting links at Betsy's Page. As I read down her blog, first I see her quoting from Hewitt's interview of Lileks talking about the Alito hearings:

James Lileks: Oh, where does one begin? The fantasy that comes back to me, again and again, is seeing these people grill Albert Einstein.

Hugh Hewitt: (laughing)

JL: I would love to see Biden leaning forward with that expression of deep concern, and saying you know, Doc...Doc, I've read that you believe that MC=E2, but I gotta say I'm troubled by it. And I'm puzzled as well. And weren't you a member of a country that elected Hitler?

HH: (laughing)

JL: I mean, it would be like that. It would be like engaging in a colloquy on the theory of relativity with Einstein, with these guys who had a chemistry set when they were in 4th grade, and believe that qualified to study the theoretical...

HH: Oh, you've opened up a whole, what if they interviewed, or they questioned Beethoven?

JL: Well, that would be great. Well, Beethoven would just...that would be perfect, because Beethoven in the later years of his life was deaf. And if Biden's asking the question, you don't have to hear, because he's just going to talk for 28 minutes.

HH: (laughing)

JL: And at the end of it, like the end of the 9th Symphony, when Beethoven couldn't hear the applause, somebody would just turn him towards Biden, and have him make a couple of scowling Beethovenesque gestures. Ah, it's just preposterous. The one thing we have learned, at least, is that we now know for sure that the Republicans do not have an operative hidden deep in Teddy Kennedy's camp, because if they did, this would be the perfect opportunity to slip him talking points based entirely on Dr. Seuss books, and he would read them with absolutely no...with as little comprehension and recognition of the fact that he was asking Alito about whether or not he'd come out against Green Eggs and Ham. He would no more hear the absurdity of that, than the absurdity of...

Then I see her linking to an op-ed by a liberal former clerk of Samuel Alito's who is disgusted by the demogoguery of Alito's Senate attackers:

As a liberal, what scares me is not the prospect of having Sam Alito on the Supreme Court; what scares me is the way my fellow liberal Democrats are behaving in response to the nomination. I’m appalled and embarrassed by the fear mongering, the personal attacks and what I see as an irresponsible and misleading distortion of his real judicial record as well as his character. . . .

In all candor, I expect that if I did not know Judge Alito, I may have responded to the nomination with the same distrust, fear and suspicion with which I usually respond to everything the Bush administration does, so I understand the genesis of the attacks by my fellow liberals.

Then Betsy links to a very interesting Charles Krauthammer column on Munich, arguing that Speilberg treated the Israeli athletes who were murdered as mere extras, but some of the Palestinians who planned their murders were never shown doing anything wrong, just being killed by Jews. Even Chuck Jones, who made Bugs Bunny cartoons, thought that Yosemite Sam should usually be shown actually being mean first, after which Bugs would often proclaim: "Of course, you know, this means war!"

If Krauthammer's account is a fair representation of the movie, Spielberg's highly fictionalized version of the Munich murders and their aftermath should show not only that the Israelis were wronged, but why a particular terrorist should be executed. Even if the movie focused only on the aftermath, it could use flashbacks to establish personal guilt, or it could show continuing terrorist planning after Munich, if that were present.

If it's one thing Speilberg knows, it's Hollywood conventions, so I find this omission genuinely puzzling--and I don't mean "puzzling" in the way that some Senate Democrats mean puzzling; I mean I am genuinely puzzled by Speilberg's choice, since without more evidence I am not willing to chalk it up simply to moral equivalence (as Betsy seems to).

Next, I see Betsy linking a Washington Times story on Ted Kennedy's continuing membership in the Owl Club, a Harvard club kicked off campus for its anti-women policies, which were claimed to violate federal anti-discrimination laws. The story even asserts that Kennedy updated his membership information in the Owl Club last September 7.

Although all these posts point in one political direction more consistently than is customary on the Volokh Conspiracy, I thought it an interesting string of posts, worth noting more than briefly.

UPDATE: I followed Orin Kerr's link to the excellent new blog, Law Culture, a group blog that includes two law professors whose work I greatly admire and enjoy: Kim Scheppele and Jennifer Mnookin. Mnookin was quoted in the Washington Times story on the Owl Club as having criticized the club in a 1986 Harvard Crimson editorial. She notes in a blog post that while she is listed as the author in the Crimson database, it was in fact a group staff editorial, not hers alone: "This wasn't actually a personal article at all, but a staff editorial. I hadn't written it -- or if I had, it was as part of a team effort, speaking in a collective voice rather than my own." She concludes: "Problem is, then and now, that you're only as accurate as your database."

LawCulture: Please give a warm welcome to a new lawprof group blog, LawCulture, featuring contributions by David Barron, Jennifer Mnookin, Jessica Silbey, Kim Scheppele, Peter Brooks, and Rosa Brooks. Definitely worth checking out.
Why Do I Keep Blogging About Unsound Criticisms of the ACLU?

Two reasons. First, people and organizations that are wrongly criticized deserve to be defended, even if on balance these are people and organizations with whom one disagrees on many matters. That's especially so if the wrongful criticisms come from people who are at some broad level of generality in one's own political camp. If liberals are wrongly faulted by conservatives, we conservatives should correct those errors. (Don't argue please that liberals don't do the same when the shoe is on the other foot; some do and some don't, and in any case their failings wouldn't excuse our failings.)

Second, as I've said before, I often disagree with the ACLU, and I sometimes even condemn it with some force for its actions. I want to have company in such expression, and many readers of this blog are natural sources of well-founded condemnation of the ACLU.

But we'd both open ourselves up to making false allegations (which is bad itself) and look foolish (which is bad instrumentally) if we fall into a visceral hostility to the ACLU that clouds our judgment, and leads us both to ignore the correct positions that the ACLU takes and to misstate the ACLU's supposed errors.

More Hostility to the ACLU Seemingly Blinding One to the Facts:

Clayton Cramer posts a long list of cases that lead him to condemn the ACLU as "evil and hypocritical." Let me point to the paragraph that I first focused on (it happened to come up in a search I did):

The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says "Jesus loves little children." Here's the decision where a school district prohibited a child from handing out these pencils at a class party. And here's a case where the ACLU stepped in to protect a child from being disciplined for saying that he had two Mommies. Oh, and this kid wore a T-shirt to school calling Bush an international terrorist; the ACLU thinks that's protected free speech (which it is). Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected).

(See the original post for links.)

1. I followed the link given for the "Jesus loves little children" case, and found another of Mr. Cramer's posts, this one reading, in relevant part, "As an example, the ACLU did manage to score a victory against free speech in the classroom in this decision. Of course, the child was distributing pencils that siad 'Jesus loves little children' at a class party--clearly, a far more offensive form of speech than explaining to a classmate what 'gay' means. The ACLU should stop the pretense. They do not support freedom of speech as a general policy, or they would have taken the side of Daniel Walz, handing out those pencils. I used to hear conservatives grumble that the acronym 'ACLU' really stood for 'Anti-Christian Litigation Unit.' The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message, has persuaded me that the grumblers were right."

The trouble is that, as best I can tell, the ACLU wasn't involved in the cited case. It's not listed as a party or as a friend of the court; I searched online and found no ACLU references to the case. I have no reason to think that they "manage[d] to score a victory against free speech in the classroom," or "oppos[ed free speech]" in this case because "it carrie[d] a Christian message." That earlier Cramer post seems to be simply mistaken.

2. After looking into the pencil matter, I came across this UPDATE to Mr. Cramer's original post: "Just so that those with reading disabilities understand me: there are a number of cases above where the ACLU, if they were still in the civil liberties business, would have at least filed a brief--such as the pencil case. If you want to argue that they don't have the resources to be involved in every case, well, I can believe that. But they have the resources not just to file a brief in the Curley suit against NAMBLA--they are actively defending NAMBLA. The pencil case involved two different protections of the First Amendment: freedom of speech and freedom of religious exercise. The NAMBLA case involves what is, at best, an extreme edge of legal free speech--and yet ACLU finds the resources for this." Unless I'm mistaken, Mr. Cramer is acknowledging that the ACLU didn't "score a victory against free speech" or "oppos[e free speech]" in that case, even though his earlier post claimed the contrary.

But setting aside that failure to correct the earlier post, Mr. Cramer seems to be saying (though not clearly in the original text, only in the update) that the ACLU is to be faulted simply for not participating on the side of the speaker in the pencil case. This is a misguided argument against any public-interest law firm, especially one that operates in large part through local chapters.

First, there are many reasons the ACLU might not participate in a case. The decisionmakers at the local ACLU might not have heard about the case in time to file a brief. The group's lawyers might have been swamped at the time the case was being litigated. The group's decisionmakers might have read drafts or outlines of the plaintiff's brief (or the papers below) and thought the plaintiff was making all the key arguments. The group's decisionmakers might have concluded that, since the Becket Fund was filing a friend of the court brief in this case, it was likely to take care of the key arguments. (You're not supposed to file an amicus brief unless you think you can make arguments that aren't already being made.)

And second, most ACLU litigation decisions are made by each affiliate. The pencil case arose in New Jersey; the case Mr. Cramer points to as the comparison case, which involved a lawsuit against NAMBLA that was based on the group's allegedly crime-facilitating speech, arose in Massachusetts. I have no idea how well-staffed the local New Jersey chapter was at the time compared to the local Massachusetts chapter, or what the chapters' relative attitudes about the merits of friend-of-the-court briefs were (some lawyers think such briefs are often wastes of time), or even how focused on free speech each chapter was. What's more, I highly doubt that Mr. Cramer has any idea about this; he certainly didn't convey any information about this, and it's quite hard to figure this information out, especially when you're trying to figure out why a group decided what it did several ears ago. How then is it remotely fair to say "The ACLU believes in freedom of speech--unless you are a child who gives another child a pencil that says 'Jesus loves little children,'" simply because one ACLU chapter didn't file a friend of the court brief in one case, while other ACLU chapters participated in other cases?

3. Finally, what about the general claim that "Some forms of free speech are protected by the ACLU; others are not (and oddly enough, those are the Christians whose speech is not protected)"? Or the specific claim, in the earlier post to which Mr. Cramer's later post linked, about "The ACLU's continuing cynical hypocrisy in supporting free speech in schools some of the time, but opposing it when it carries a Christian message"?

Well, in an earlier comment thread on this blog, in which Mr. Cramer heavily participated, commenter Allen Asch posted a link to a page titled "The ACLU Fights for Christians." I went to that page, and followed the links, and sure enough they involve the ACLU fighting for the free speech and free exercise rights of Christian speakers (or, in a couple of the cases, of various speakers including quite a few Christian ones).

* * *

Once again, it seems to me, we see evidence of how hostility to a group seems to blind one to the facts, and leads one to error. This naturally doesn't mean that one shouldn't criticize the ACLU; of course one should, in the many situations where it merits criticism. But thinking of one's legal and political adversaries not just as misguided but as "evil" tends to influence one's judgment, and not for the better.

As to some groups (say, Nazis, al-Qaeda, and the like), such an attitude is nonetheless proper; failing to see them as evil would itself be bad judgment. It just seems to me that the ACLU is pretty far from falling into that camp, and thinking of it that way predictably weakens one's critical faculties.


Friday, January 13, 2006

Polls and Abortion:

Keith Burgess-Jackson faults the New York Times for saying that "nearly 70 percent of Americans [said] in a recent Harris poll that they would oppose Judge Alito's confirmation if they thought he would vote against constitutional protection for abortion rights." The poll itself, he points out, asked "If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?," which is analytically quite different: A vote against constitutional protection for abortion rights is a vote to return the matter to the states, not to make abortions illegal. (Even if one focuses on the practical implications, I doubt that more than a handful of states would even make all first-trimester abortions-on-demand illegal, though many states might make many second-trimester abortions illegal.)

But it turns out that the poll results for these two questions aren't vastly different. Prof. Burgess-Jackson writes that "There is no evidence that 70% of the American people oppose overruling Roe v. Wade," but in fact a Dec. 2005 NBC News poll that asked, "The Supreme Court's 1973 Roe versus Wade decision established a woman's constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe versus Wade decision, or not?" yielded 30% overturn, 66% not overturn -- not that far off the 31%-69% result reported by the Harris Poll. A Nov. 2005 poll reports a lesser margin, 32% to 57%; but the big picture remains not vastly off of what the Harris poll reports. (The Dec. 2005 and Nov. 2005 polls misdescribe Roe as focusing chiefly on the first three months; in practice, Roe also protected abortions in the following three months, though with some modest regulations; Casey then cut that back to abortions before viability; but this error, while significant generally, is not that important for purposes of this particular post.)

So, yes, it's right to fault the New York Times for its imprecise reporting, and for that matter Harris for surveying about a hypothetical scenario that is extremely unlikely (Alito voting to actually make abortions illegal). But the practical effect of the error is actually not that great, and there is indeed substantial evidence that a large majority, quite possibly nearly 70%, of the public opposes -- whether rightly or wrongly -- a total overruling of the Roe/Casey constitutional right to abortion.

Dahlia Lithwick (Slate) Advises Democrats on How To Deal With Federalists:

An excellent piece, and a fun read to boot. And, yes, please do pet our soft, luxuriant hair.

Sex Crime Wave Involving East Asians and American Indians?

I blogged about this back in 2002, but I thought I'd mention it again; it's one of my favorite simple statistics puzzles. The federal Sentencing Commission provides a table breaking down all sentenced federal offenders, broken down by offense type and race. The race categories are White, Black, Hispanic, and Other. (I realize that demographers generally view Hispanic as an ethnicity, not a race, but the Commission follows the more common lay usage here.)

For sexual assault, 51.3% of all offenders are "other." Among the U.S. public as a whole, probably only about 6% would fall into the "other" category (subject to some uncertainty that's not relevant here, since any estimate would be far below 51.3%). What's up? I'll post the answer to the comments in a few days, if no-one else gets it before then (though I suspect they will).

Palsgraf All Over Again:

Coming soon to a Torts exam near you? Here's the AP story:

A shrimp a hibachi chef tossed at a man eating at a Japanese steakhouse ultimately led to the diner's death, his family claims in a $10 million wrongful death lawsuit against the restaurant chain Benihana.

Jerry Colaitis wrenched his neck when he ducked to avoid the shrimp in the chain's Munsey Park restaurant, attorney Andre Ferenzo said in opening statements Wednesday.

Months after the January 2001 incident, the 43-year-old Long Island man died from complications caused by neck surgery he required afterward, the lawyer said. . . .

Thanks to reader Chris Buchanan for the pointer.

Related Posts (on one page):

  1. Palsgraf Loses Again:
  2. Palsgraf All Over Again:
Mad Bad Vlad:

A misogynistic anti-Condi Rice rant by Russian politician Vladimir Zhirinovsky reminded me of this other item from 1993 (quote verified via the Times of London):

"I've had several blood tests and there is no Jewish blood in me, not even 5 per cent."

The Times aptly characterized this by saying, "He formally denied that he was Jewish in nonsensical terms which only served to betray his obsession with the subject." (Some years later, Zhirinovksy admitted that his father was indeed Jewish.) Another reason to like Rice — anyone who annoys Zhirinovsky gets extra points in my book.

Thanks to Ann Althouse and InstaPundit for the pointer.

UPDATE: Here's the Russian interview. Zhirinovsky, it turns out, also writes: "The civilized world should think and decide whether unmarried political leaders should be forbidden from coming to power. Now in the Soviet system this was all developed to an A+ level. Leading positions were open only to family people, free from inferiority complexes." And a lovely bunch of family people they were.

FURTHER UPDATE: Clayton Cramer has a suitably snide (well, beyond snide) comment on this.

[Puzzleblogger Kevan Choset, January 13, 2006 at 11:25am] Trackbacks
Extreme Puzzling:

Today through Sunday the Puzzleblogger is at the MIT Mystery Hunt. Click here to try the 2005 (and earlier) hunts online.

VC Open Thread: What's on your mind? Feel free to post away.
Judge Garth on Alito: I hope you'll indulge a former law clerk, as I can't help but point out Judge Garth's testimony in favor of Samuel Alito. (Click here, select Day 4, Afternoon Session, and go to the 1:16 mark.) Note that the Judge was wearing his favorite bow tie -- blue with white polka dots -- and that he couldn't help but add light-hearted asides about Judge Aldisert's age, Judge Barry's looks, and the offerings at Ward's Coffee. Classic.

Thursday, January 12, 2006

Purpose of the CAP Inquiry (Take 2)--Comment Thread:

I still can't seem to get the Comments function to work on my earlier Posts. Given the response to my earlier posts on this topic, I'm guessing that readers would like to Comment, so I will open this thread here to provide an opportunity for interested parties to post Comments on that post if they are so inclined.

Comments On My Posts:

Friends, something seems to be awry with my ability to enable Comments on my posts today. On my last three posts, and one yesterday, I haven't been able to get PowerBlogs to allow me to Enable Comments. Please know that I'm not trying to foreclose Comments on any of those posts (Eminent Domain, Illinois Wine Law, or CAP), it just seems to be a glitch of some sort. I didn't realize the problem until a reader just emailed me--as you can see, on our page the Comments button appears, but for some reason it won't take Comments once you click on it. I'm trying to fix it.


Naturally, Comments seem fine for this particular post!

Purpose of the CAP Inquiry (Take 2):

The Comment Boards to my previous posts have a spirited discussion about what was the purpose of the CAP inquiry by Senator Kennedy yesterday? There appears to be two possible explanations. One hand, it may be to simply ask Alito about the organizations to which he belonged and to ascertain his views today. Or, on the other hand, to attempt to smear Judge Alito by engaging in guilt by association and innuendo to suggest that he is racist, sexist, elitist, gay-basher, as suggested in the article in the Washington Times today (which I noted this morning).

In deciding which of these two competing explanations is more plausible, one would expect to see very different approaches to the questioning by Senator Kennedy. If the purpose was simply to establish whether Alito had a meaningful association with the organization and what his views are today, then it seems to me that the questions that were asked would focus on those points. If this was the purpose, I cannot see why there would be any need to go into great detail in expostulating the views of other individuals associated with the organization, such as reading inflammatory and retrograde articles written in the organization's magazine. It seems to me that dragging out these long quotes would be utterly irrelevant to establishing the questions of Alito's relationship to the group, why he joined it, and what his views are today.

If, by contrast, the primary purpose of the inquiry is to cast aspersions and to imply that Alito was (and perhaps is) a racist, sexist bigot, then all of the hoary details would not only be relevant, but would be prominently featured as statements buried in the "questions."

So let's review the actual transcript of the exchange and see which interpretation seems more plausible in light of what was actually said. The transcript is very long, and so I have put it under hidden text for those who don't need to read it again. I have also taken the liberty of italicizing those portions of the transcript that go to Judge Alito's association with the organization and bold type on those portions that appear to be intended to suggest that Alito is a closet bigot. Obviously some readers will disagree with my classification scheme, but I don't think it changes the overall balance meaningfully.

So, note a couple of things about this exchange. At no point does Kennedy establish that Alito had a meaningful relationship with CAP or that he ever subscribed to the views laid out in the group's magazine. He quotes the articles from Prospect before he even asks Alito if he ever even read or received the magazine, much less the articles in question. He first describes the reasons why Frist and Bradley disassociated themselves from CAP before he asks whether Alito was aware that they had in fact done so. And why did Senator Feinstein find it so darned important to insist that Senator Kennedy finish the line about women, if the purpose of the inquiry was to establish whether Alito had read the article? Why say that his explanations for "membership in this, sort of, radical group" don't add up, rather than his "membership in the group"?

If the goal is to simply establish the purported facts, isn't much of Senator Kennedy's rhetoric and order of approach completely irrelevant or illogical? It seems to me, first you would establish whether he remembered reading the article and before you quoted the inflammatory rhetoric in it. Or you would ask whether he was aware that Frist and Bradley had dissassociated themselves at the time, and if he said yes, then you might discuss whether he shared their views. But to quote them and then ask him whether he had ever read any of the relevant stuff makes no sense at all, if this was his goal.

And if Kennedy were intending to raise questions about why he joined CAP in the first place, it certainly seems to me that he would have started the questioning with the discussion of ROTC, not tagged it on at the end, after he has grandstanded with all of the offensive quotes. Note that even when he requests the issuance of the subpoena, he does so by essentially asking Alito if he has anything to hide, with the innuendo being that he should confess now while he still has the chance ("Do you have any hesitancy or reason for us not to look at those documents?" "Do you think they'd be helpful?"). As others have noted, these documents and what is contained in them have been freely available for some time, so it also seems evident that Kennedy was asking these questions and for the subpoena in order to suggest that Alito had something to hide. And if his intent in this line of questioning was to find out whether Alito had connections to the group and to get access to the Rusher papers, why save all of the relevant questions to the end and take the wide-ranging detour through the materials in the organization's publication?

If, on the other had assume that instead his goal was to engage in guilt by association and try to imply that as a result, Alito is some sort of closet bigot. In that case, Senator Kennedy's line of questioning makes perfect sense. And this is exactly how the Washington Times story saw it. And it fits in with the overall strategy of Alito's critics, which seems to be to attack Alito by destroying his character and to suggest that he is a biased judge and person. If that was the goal, then you would first make sure that you read the inflammatory stuff, and only then would you ask whether he was actually aware of it or shared those views.

So, as I look at all this, it seems clear to me that the only reasonable conclusion that can be drawn from this colloquy is that the primary purpose of Senator Kennedy's questioning was to engage in guilt-by-association and innuendo to suggest that Judge Alito is a bigot who lacks the character to serve on the Supreme Court, not to resolve issues of credibility or to ascertain his current views on such matters.

Proposed Illinois Legislation on Wine Direct Shipping:

Illinois appears primed to enact legislation that would effectively eliminate direct shipment of wine by requiring purchasers to first purchase wine in person before being eligible to buy wine directly:

A bill in Springfield, backed by a major distributors' group, would restrict Illinois wineries' right to sell wine over the Internet, through the mail or by telephone. Distributors say the bill is necessary in the wake of a U.S. Supreme Court ruling last year -- and to prevent sales to minors. But Illinois wine-makers say distributors are trying to choke competition.

"It would be a disaster for the Illinois wineries," said Fred Koehler, president of Lynfred Winery in Roselle. "It's like Goliath against these little farm wineries that are trying to survive."

Associated Beer Distributors of Illinois, a Springfield-based industry group, pushed the legislation, introduced in the House and Senate earlier this month. ABDI Executive Vice President Bill Olson said the state's wineries have used a loophole to escape regulation. The wine bill "hits a middle ground," Olson said.

"The key word here is 'a face-to-face sale,' which is the primary mechanism against underage sales," Olson said.

The proposed law would bar shipments to purchasers in Illinois unless they first bought wine in person. After the initial purchase, wineries would be allowed to ship two cases per buyer each year.

The Purpose of the CAP Inquiry:

Post temporarily removed--I inadvertently hit the "publish" rather than save button before I was completed editing. I will post a final version later today under a similar heading. Sorry.

More on the Harlan Nomination: In reading through Tinsley Yarborough's book on Justice Harlan, I came across another interesting passage about whether Supreme Court nominees should testify about how they would decide cases if confirmed. I know that Supreme Court nominees didn't testify in person until Felix Frankfurter, but I have seen a number of suggestions that the refusal to answer questions once called is largely a post-Bork phenomenon.

  Yarborough's book suggests a very different picture. On page 98, Yarborough excerpts a letter from Chief Justice Earl Warren to then-nominee John M. Harlan offering advice on how to testify before the Judiciary Committee. Warren had asked the sitting Justices what advice they would give Harlan, and he reported the results of his survey back to Harlan:
Most of them were of the opinion that if they were in your place, they would not answer questions relative to their views of the Constitution, statutes or legislation. Two of the Justices stated that they would answer very general questions in this field but nothing that was specific.
  Warren recommended that Harlan should refuse to answer any questions about the law, as the Senators were not likely to be satisfied with the kind of general answers a nominee could appropriately provide:
It seems to me that if the Committee attempted to probe your mind on legal matters, it would be for a definite purpose and they would not be satisfied with general questions and answers if the matter was opened up at all.
Yarborough, at 98-99. I haven't looked into the history myself in any detail, but I thought this was pretty surprising.
CAP , the Swift Vets, and Justice Harlan: The controversy over Alito and the "Concerned Alumni of Princeton" reminds me a bit of the controversy over John Kerry raised by the Swift Boat Vets for Truth in the 2004 election. The basic idea underlying the claim seems to be roughly the same: Decades ago, the nominee did something or took a position that reveals a very deep and extremely serious character flaw. Granted, the nominee has shown only very subtle hints of this character flaw since then. But, critics say, that's only because he is super-clever at disguising just how evil he is. If we look really hard, we can realize that the nominee's impressive record is really a facade hiding something very sinister. That was the bogus claim about John Kerry in the 2004 election, and that is the bogus claim about Samuel Alito now.

  Looking to past Supreme Court confirmation hearings in particular, the CAP issue also reminds me a little bit of the problems John M. Harlan encountered as a result of his membership in the Atlantic Union Committee and the Citizens Association for the United Nations. Both were organizations dedicated to improving ties between the U.S. and other countries. A few Senators feared that Harlan's membership in these groups was a subtle sign that he was a "World Federalist" with a secret commitment to surrendering U.S. sovereignty to the United Nations. Harlan testified that he had little to no involvement in these groups, and even, in one case, little recollection of having joined them. He testified:
If you want me to be completely frank about my relationship to [the Atlantic Union Committee,] until this matter came up in connection with my nomination, I am afraid that if anybody had asked me if I was a member of the Altantic Union Committee I might have been mistaken in saying, "No."
 Source: Tinsley E. Yarborough, John Marshall Harlan: Great Dissenter of the Warren Court 105 (1992)). A few witnesses at the Senate hearing testified against Harlan, explaining their fears that his membership in the organizations meant that he was an internationalist who would allow international law and the U.N. charter to trump the Constitution. Harlan was eventually confirmed 71-11, however, with 14 Senators not voting. As far as I recall, he never did try to surrender U.S. sovereignty to the United Nations.
[Puzzleblogger Kevan Choset, January 12, 2006 at 11:35am] Trackbacks
Number Sequence:

What's the next number in this sequence?

  • 13, 14, 6, 7, 12, 8, 16, 9, 13, 10, 15, 11, 12, 23, 6, 1, 2, ___

Still More on CAP:

In addition to the Washington Post article linked by Orin last night, this morning's Washington Times brings this article on the dust-up with additional reactions, "Alito Accused of Racism."

Related Posts (on one page):

  1. Still More on CAP:
  2. Good Night and Good Luck:
  3. More on CAP:
Ohio Eminent Domain Case:

Today's paper carries an article about oral argument yesterday in the Ohio Supreme Court in a Kelo-style Eminent Domain case (which also quotes my colleage Steve Eagle).

A reader who attended oral argument writes with further information. I pass along the relevant information to those who are interested.

Professor Zywicki:

You might also be interested in yesterday's Ohio Supreme Court argument about a Kelo case here. I regularly attend arguments there, and this is the first time I've seen the courtroom full.

The case is interesting because it tests private eminent domain takings under the Ohio constitution and Ohio statute.

The briefs are here.

An article about the argument is here.

The oral arguments are archived here (click on the Norwood case)

The actual argument is here

The court staff's summary of the case is here.

The staff summary describes the issue:

When May a City Use Its Eminent Domain Powers to Condemn Property for Private Redevelopment? City of Norwood v. Horney et al., Case nos. 2005-1210 and 2005-1211 1st District Court of Appeals (Hamilton County)

ISSUE: Does a city act unlawfully when it commissions an urban renewal study of a residential area previously targeted by a private developer, classifies the area as ‘deteriorating,' and subsequently uses its eminent domain powers to take (with compensation) the property of owners unwilling to vacate the targeted area to make way for private redevelopment?

Good Night and Good Luck:

"Are you now, or have you ever been, a member of the Concerned Alumni of Princeton?" Really, yesterday's exchange between Sen. Schumer and Judge Alito was embarrassing. Senators are never less appealing than when they lay on the sanctimony and feigned shock; "Why oh why," Schumer kept repeating, "did you choose, out of all the groups to which you belonged at the time, to highlight that one in your 1985 letter?" Earth to Schumer: that's what people do when they apply for political jobs in Washington, they try to indicate, in shorthand fashion, where their politics are. The implication Schumer was trying to draw out of this (with his smirks and eye-rolling) was that somehow Alito must have been an active and engaged member of the group, behind the scenes, and that he was covering that up in his testimony and hiding behind his claims not to recall anything about the group, is downright outrageous and not a little revolting.

Related Posts (on one page):

  1. Still More on CAP:
  2. Good Night and Good Luck:
  3. More on CAP:

Wednesday, January 11, 2006

More on CAP: At the Washington Post, Dana Milbank suggests that the Alito nomination may boil down (weirdly enough) to Alito's role in the Concerned Alumni of Princeton:
Thus did Democrats take their last stand against Alito. It had become clear that the committee, with unified GOP support, would clear the judge. Surveying the various lines of attack against Alito -- his opposition to abortion, his support for a powerful president, his conflict-of-interest issues -- Democrats concluded that their best hope was in Alito's membership in a group opposed to gains by women and minorities. Clarence Thomas had Anita Hill. Alito would have the Concerned Alumni of Princeton.
Meanwhile, over at Bench Memos, Ed Whelan reports:
I have been informed by a very reliable source that Senate Judiciary Committee staffers have reviewed the entirety of William Rusher's CAP documents at the Library of Congress and have determined that those documents make no mention at all of Alito.
  UPDATE: I added the Milbank commentary after posting Whelan's news.
A "Certain People" on College Campuses:

About twenty years ago, Charles Silberman wrote a controversial book called A Certain People: American Jews and Their Lives Today. I remember the book well, because I was required to write a paper on it for a class on American Jewish sociology (hmm, if I can remember this, why can't Alito remember joining CAP?)

The book was primarily a celebration of the fact that American Jews were now able to both be high achievers and to live open and explicit Jewish lives--in contrast to prior generations of American Jews, who often found that "making it" required them to downplay or abandon their Jewish identity.

The most controversial part of the book was Silberman's prediction that intermarriage, rather than constituting a demographic threat to the Jewish community would likely wind up increasing the number of American Jews. This prediction was based solely on anecdote, and it outraged scholars who argued that this prediction flew in the face of prior data on intermarriage, and their own, more scholarly predictions. As I recall, my own paper expressed significant skepticism about Silberman's thesis.

I was reminded of this controversy when I read today in Ha'aretz:

Some 4.5 million to 6 million Jews now live in the U.S., according to various counts. According to Hillel, only about half of the 350,000 young people who define themselves as Jewish in American colleges have two Jewish parents. The number of students with one non-Jewish parent is about 47 percent, much higher than could be expected according to previous studies.

Hillel says its study shows that Jewish background is a source of pride on U.S. campuses. And it is not just the children of mixed marriages who are choosing Judaism. One surprising statistic is that 3 percent of the students who consider themselves Jewish have no Jewish parent.

When these students' parents got married, the intermarriage rate among American Jews was about 40%, lower for first marriages (now it's around 50%). Statistics are not a strength of mine, but if I'm figuring things out right, if 47% of college students who identify themselves as Jews are the products of intermarriage, that means that the majority of children of intermarriage identify as Jews, just as Silberman predicted (one caveat: this may turn out to be wrong if substantial numbers of students who have two Jewish parents don't identify as Jews, though it would still support Silberman's thesis of intermarriage being a demographic plus compared to in-marriage).

I'm not familiar with the relevant Hillel study, but assuming it's accurate, it has some very radical implications for the future of Jewish life in America:

(1) Less attachment to Israel, because both of less familial memory of persecution and because Israel clings to a Jewish-law definition of Judaism which requires the mother to be Jewish; apparently, almost 25% of the next generation of American Jews will have only a Jewish father.

(2) Jewishness will become more about religion and religious tradition, less about culture. "Bagels and lox Judaism" was already on its way out as American Jews become more distant from their (primarily) Eastern European heritage. This will accelerate the trend (as will the fact that a substantial percentage of American Jews are now of recent Israeli or Russian origin, and neither group has affinity for bagels and lox Judaism).

(3) A bias toward a further decline in anti-Semitism. The more non-Jewish Americans have close Jewish relatives, the more one can expect anti-Semitism to decline. Contrariwise, ingrained Jewish suspicion of Christianity, the product of centuries of persecution, will decline as more Jews have close Christian relatives.

(4) Reform and Reconstructionist Judaism, which accept patrileneal descent, and also are more liberal about conversion, will grow at the expense of Conservative Judaism, which is in trouble for other reasons anyway (as an officially halachic movement with few halachic adherents, and as a movement that appeals primarily to traditionalists when Reform is becoming more and more traditional).

(5) A general decline in some of the attributes one typically attributes to American Jews, as Jews with a partially non-Jewish genetic and cultural heritage play an increasingly large role in the community. For example, Jews seem to have a genetic predisposition against alcoholism, but a genetic disposition in favor of depression, each the source of perhaps well-founded stereotype. Jews have a cultural disposition in favor of the Democratic Party, and that will likely weaken (though I suspect that some Jews prefer intermarriage with a Christian to "intermarriage" with a Jewish Republican, so this effect may not be as large as one might expect!)

(6) Paradoxically, the Orthodox and other traditional Jews will play an increasingly disproportionate role in American Jewish life. The half of the next generation of Jews who will have only one Jewish parent are, on average, likely to be less committed to Judaism and Jewish causes then those with two Jewish parents, for a variety of reasons that seem too obvious to go bother going into. This means that Jewish organizations--charities, JCCs, synagogues, are likely to be dominated by the more traditional of Jewish factions, whose members will more often be the progeny of two Jewish parents.

(7) Oddly, and also paradoxically, the popularity of Jewish day schools may continue to grow among the non-Orthodox. For generations, American Jews, as a cultural matter, have had a strong aversion to religious day schools of any sort, including Jewish day schools. I'm inclined to believe that the progeny of mixed marriages who embrace Judaism are less likely to inherent this aversion.

There are probably other interesting implications, but I'll leave it at that.

Some Eminent Domain Issues Post-Kelo:

Ben Barros has a post on Nicole Garnett's new paper on Eminent Domain post-Kelo as well as some of the vexing empirical issues embedded in Eminent Domain disputes.

To my mind, I haven't really been persuaded by the "Just Write Them A Check" approach to Eminent Domain, which basically says forget about the Public Use Clause and simply ensure Just Compensation. As a logical matter, if that approach is valid with respect to the Takings Clause, why not apply it to the remainder of the Constitution? If ex post compensation (a liability rule) is supposedly a perfect substitute for an ex ante injunction (a property rule), why not apply it across the board? The logic of the argument seems to imply that the government could simply search your home without cause, and then simply write you a check for the inconvenience caused by the intrusion. As Nicole's paper suggests, there are non-instrumental harms present with respect to constitutional rights, and they seem to me to apply in both contexts. I honestly don't see why I only get constitutional protection in the form of a property from a search of my home but not the tearing down of my home for the benefit of a private developer (as Justice Thomas observed in his dissent).


A reader called to my attention that for some reason, this post doesn't permit Comments. I didn't intend that and have tried to correct it, but for some reason am unable to do so. I apologize to anyone who sought to add a Comment but was unable to do so.

Senator Kennedy Blows His CAP:

I thought the Kennedy-Alito exchange on CAP sounded familiar:

Senator MCCARTHY. Not exactly, Mr. Chairman, but in view of Mr. Welch’s request that the information be given once we know of anyone who might be performing any work for the Communist Party, I think we should tell him that he has in his law firm a young man named Fisher whom he recommended, incidentally, to do work on this committee, who has been for a number of years a member of an organization which was named, oh, years and years ago, as the legal bulwark of the Communist Party, an organization which always swings to the defense of anyone who dares to expose Communists. I certainly assume that Mr. Welch did not know of this young man at the time he recommended him as the assistant counsel for this committee, but he has such terror and such a great desire to know where anyone is located who may be serving the Communist cause, Mr. Welch, that I thought we should just call to your attention the fact that your Mr. Fisher, who is still in your law firm today, whom you asked to have down here looking over the secret and classified material, is a member of an organization, not named by me but named by various committees, named by the Attorney General, as I recall, and I think I quote this verbatim, as “the legal bulwark of the Communist Party.” He belonged to that for a sizable number of years, according to his own admission, and he belonged to it long after it had been exposed as the legal arm of the Communist Party.

Knowing that, Mr. Welch, I just felt that I had a duty to respond to your urgent request that before sundown, when we know of anyone serving the Communist cause, we let the agency know. We are now letting you know that your man did belong to this organization for, either 3 or 4 years, belonged to it long after he was out of law school.

I don’t think you can find anyplace, anywhere, an organization which has done more to defend Communists—I am again quoting the report—to defend Communists, to defend espionage agents, and to aid the Communist cause, than the man whom you originally wanted down here at your right hand instead of Mr. St. Clair.


Mr. WELCH. Senator McCarthy, I did not know—Senator, sometimes you say “May I have your attention?”

Senator MCCARTHY. I am listening to you. I can listen with one ear.

Mr. WELCH. This time I want you to listen with both.

Senator MCCARTHY. Yes.

Mr. WELCH. Senator McCarthy, I think until this moment—

Senator MCCARTHY. Jim, will you get the news story to the effect that this man belonged to this Communist-front organization? Will you get the citations showing that this was the legal arm of the Communist Party, and the length of time that he belonged, and the fact that he was recommended by Mr. Welch? I think that should be in the record.

Mr. WELCH. You won’t need anything in the record when I have finished telling you this.

Until this moment, Senator, I think I never really gauged your cruelty or your recklessness. Fred Fisher is a young man who went to the Harvard Law School and came into my firm and is starting what looks to be a brilliant career with us.

When I decided to work for this committee I asked Jim St. Clair, who sits on my right, to be my first assistant. I said to Jim, “Pick somebody in the firm who works under you that you would like.” He chose Fred Fisher and they came down on an afternoon plane. That night, when he had taken a little stab at trying to see what the case was about, Fred Fisher and Jim St. Clair and I went to dinner together. I then said to these two young men, “Boys, I don’t know anything about you except I have always liked you, but if there is anything funny in the life of either one of you that would hurt anybody in this case you speak up quick.”

Fred Fisher said, “Mr. Welch, when I was in law school and for a period of months after, I belonged to the Lawyers Guild,” as you have suggested, Senator. He went on to say, “I am secretary of the Young Republicans League in Newton with the son of Massachusetts' Governor, and I have the respect and admiration of the 25 lawyers or so in Hale & Dorr.”

I said, “Fred, I just don’t think I am going to ask you to work on the case. If I do, one of these days that will come out and go over national television and it will just hurt like the dickens.”

So, Senator, I asked him to go back to Boston.

Little did I dream you could be so reckless and cruel as to do an injury to that lad. It is true he is still with Hale & Dorr. It is true that he will continue to be with Hale & Dorr. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your reckless cruelty, I will do so. I like to think I am a gentleman, but your forgiveness will have to come from someone other than me.


Mr. WELCH. I meant to do you no personal injury, and if I did, beg your pardon.

Let us not assassinate this lad further, Senator. You have done enough. Have you no sense of decency sir, at long last? Have you left no sense of decency?

Senator MCCARTHY. I know this hurts you, Mr. Welch. But I may say, Mr. Chairman, on a point of personal privilege, and I would like to finish it—

Mr. WELCH. Senator, I think it hurts you, too, sir.


I inadvertently cut-off the initial quote and have updated the post to add the final exchange to the blockquote.

Alito's Credibility Problem?

Consider this statement from his wife this week:

His music tastes tend toward Beethoven and Bruce Springsteen but "I force him to listen to Scarlatti and Bach," Mrs. Alito said in a Washington Post interview published Monday. He once attended a ska festival--that's rock music, with a touch of reggae and horns.

Hmmmm. Springsteen seems obvious (especially with a mother named Rose Alito). But, a middle-aged, New Jersey, Italian-American, Republican--and his wife doesn't identify Frank Sinatra among his musical favorites? Sounds like he's not being very forthcoming here...

Criticizing People Who May Have Inadvertently Helped the Enemy:

My Deterring Speech: When Is It “McCarthyism”? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)) is finally out; I thought I'd blog an excerpt here, on criticizing people who may have inadvertently helped the enemy. I omit the footnotes, but they're all in the PDF; if you question whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question.

“To those who scare peace-loving people with phantoms of lost liberty,” Attorney General Ashcroft famously said not long after September 11, “my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies . . . .” That’s McCarthyism, some replied.

Here’s another quote, this one from the president: “Our nation has felt the lash of terrorism. . . . We can’t let [a certain group] turn America into a safehouse for terrorists. Congress should get back on track and send me tough legislation that cracks down on terrorism. It should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of the [group].” The president was Bill Clinton, and the group that he was condemning was the “gun lobby,” which opposed some gun-control proposals that Clinton favored.

Likewise, following the Oklahoma City bombing, President Clinton argued on national television that violence is caused “not just [by] the movies showing violence. It’s the words spouting violence, giving sanction to violence, telling people how to practice violence that are sweeping all across the country. People should examine the consequences of what they say and the kind of emotions they’re trying to inflame.” He might have meant to condemn only those who actually urge violence, and not those who simply “giv[e] sanction to violence” by harshly criticizing the government. But his words could also have been interpreted (and were interpreted, by at least one sympathetic commentator) as a criticism of strident anti-government rhetoric more broadly.

Similarly, consider Winston Churchill’s lament that his critics’ wartime statements were (among other things) “weaken[ing] confidence in the Government,” “mak[ing] the Army distrust the backing it is getting from the civil power,” and “mak[ing] the workmen lose confidence in the weapons they are striving so hard to make,” all “to the distress of all our friends and to the delight of all our foes.” And, finally, consider this quote from George Orwell during World War II: “Pacifism is objectively pro-fascist. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other.” Orwell’s message, I take it, was this: The pacifists’ tactics only aid the Nazis, for they erode the Allies’ national unity and diminish their resolve. They give ammunition to the Allies’ enemies.

Such statements have some things in common. They accuse people of doing things that help the enemy. The great majority of the accused are probably decent people, who have no desire to help terrorists or Nazis.The statements may also deter dissenters: People don’t like to be told that they are helping the nation’s mortal enemies, especially when the charge comes from an official to whom millions listen. Even if the accused think the accusation is unjust, they may keep quiet, or at least tone down their arguments, to avoid such attacks in the future. The accusers likely intended to deter dissent by making potential dissenters feel embarrassed to make certain criticisms that the accusers thought baseless and harmful.

And the accusations may also have been factually correct. Pacifists’ opposition to the Allied war effort may have helped the Nazis as much as pro-Nazi opposition would have. Excessive insistence on gun owners’ rights might likewise help terrorists. Similarly, criticisms of the administration’s actions may well erode national unity, diminish national resolve, give ammunition to our enemies, and aid terrorists. This is especially true when the criticisms come from legislative leaders. Recall that Ashcroft’s statement came at a hearing organized by Senator Patrick Leahy, then-chair of the Democrat-run Senate Judiciary Committee and a leading adversary of Ashcroft.The hearing had apparently been called in part to criticize the administration’s antiterrorism policy on civil liberties grounds. Enemies who see our political leaders divided on the war on terror may well be em-boldened, and foreign neutrals may see us as less likely to prevail than if we seemed united. Such internal division may well “distress . . . all our friends and . . . delight all our foes.” And if Senator Leahy’s and others’ criticisms were indeed unfounded or at least exaggerated (a hotly contested position, of course, but one that Ashcroft defended on the merits in his testimony), then Ashcroft could have reasonably concluded that the critics’ actions were both unjustified and dangerous.

Good intentions may sometimes yield bad results. That’s true of well-intentioned administration actions, which the party out of power often warns about. It’s also true of well-intentioned criticisms of such actions. If such bad results seem likely, then the public ought to be warned of this danger, though of course those who disagree should likewise argue that the danger is itself a “phantom.”

And government officials are as entitled as anyone else to note such dangers. The administration, which is responsible for keeping the country safe, has a responsibility to warn of a wide range of dangers. People who ignore the danger, if the danger is real, may well deserve to be criticized. And when political leaders debate questions of liberty and national security, plausible claims that one side’s actions may jeopardize liberty may reasonably be met by plausible claims that the other side’s actions may jeopardize security.Now it’s true, as many critics argue, that such accusations try to move people through fear. But terrorists ought to be feared. Many groups rightly try to influence voters by making them afraid of environmental catastrophe, crime, gun violence, terrorism, war, special interests, or suppression of civil rights. Well-founded fear is better than foolish fearlessness. Some fear is excessive or even irrational, but some is eminently justified, or is at least a reasonable response to uncertainty.

It’s also true that politicians sometimes harness fear for political advantage. That’s what they’re supposed to do in a democracy. When national security is a big part of an election campaign, each side likely believes that its program will protect the nation, and the other side’s will (at least comparatively) endanger the nation—and each side then has the right and even the duty to make these arguments to the voters.

In 2004 Democrats sincerely believed that reelecting George W. Bush would endanger America, because they thought that Bush’s national security policy was dangerous. House Minority Leader Nancy Pelosi, for instance, argued that “the president has failed in how he has tried to protect America. . . . We are less safe—we are less safe because he is president . . . .” Republicans sincerely believed the same of Kerry, and argued accordingly. One might find one side’s case to be erroneous or even dishonest, but making fear of terrorism an “underlying theme of domestic and foreign policy” is quite proper when terrorists are doing frightening things.

Yet at the same time, pointing out (even if accurately) that criticism of the administration is helping America’s foreign or domestic enemies has costs. To begin with, it can distract from the legitimate arguments that the critic is making. Perhaps paying more attention to civil liberties will actually help the war effort by showing us to be a humane and tolerant nation and thus making us more popular throughout the world. Or maybe broadly protecting civil liberties will hurt the war effort, but some cost to the war effort is a tolerable price to pay for preserving our traditional rights.

Moreover, arguing that critics of the government are helping our enemies can wrongly tar people with the implication of bad purpose, even if no such charge is explicitly made. This may be unfair. It may breed unnecessary political hostility—not just disagreement but contempt or hatred— that is itself harmful to the nation. It can overdeter speech by making speakers afraid to level even those criticisms that, on balance, help the country more than hurt it. As Orwell himself wrote, just two years after the lines I quote above,

We are told that it is only people’s objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are “objectively” aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. . . .

In my opinion a few pacifists are inwardly pro-Nazi . . . . The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like.

Now perhaps Orwell’s change of mind was occasioned by the change from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It is easier to be generous to those who, in your view, helped Hitler (even unintentionally) when Hitler is nearly defeated. Yet I think that Orwell’s second thoughts, whatever their reason, were objectively the right ones. Explaining why your adversaries’ arguments unintentionally help the enemy is legitimate. But expressly acknowledging that this effect is likely unintentional—even when you’re tussling with a senator who you think has unfairly attacked you—is fairer, less politically divisive, and often more rhetorically effective. I suspect John Ashcroft’s quote alienated more Americans than it persuaded. Likewise, the vitriolic Bush-the-Nazi attacks from some parts of the Left probably, on balance, helped Bush in the 2004 election.

So it seems to me that, first, the quotes with which I began this Part could have been put better. Second, because people tend to overestimate the bad effects of their adversaries’ speech, we should often be skeptical about allegations of such bad effects. And third, such allegations provide a convenient way to evade (deliberately or subconsciously) the substantive criticisms leveled by the adversaries’ speech.

Nonetheless, responding to such allegations with charges of McCarthyism is likewise a convenient way to evade the merits of those allegations. If Ashcroft, Clinton, Orwell, and Churchill were wrong in their estimates of the harm that their adversaries’ arguments were causing, one should certainly call them on that. One should do likewise if the harms are exceeded by the benefit of the remedies that the adversaries propose. But these arguments need to be made on the merits. Labeling allegations as “McCarthyism” is likely to distract listeners more than it helps them assess which allegations are sound and which aren’t.

Brown v. Sanders: The Roberts Court has handed down its first 5-4 opinion today in a death penalty case, Brown v. Sanders. The case involved permissible jury instructions in capital cases, and specifically whether a new trial is warranted if one of several aggravating factors found by the jury is later held to be invalid. The Court reversed the Ninth Circuit's decision and held that no new trial was constitutionally required: Justice Scalia's opinion was joined by Justices O'Connor, Kennedy, Thomas, and Chief Justice Roberts. Justices Stevens, Ginsburg, Breyer and Souter dissented, and would have held that the sentence was unconstitutional.
[Puzzleblogger Kevan Choset, January 11, 2006 at 11:21am] Trackbacks
Geometric Mean:

What is the value of x below?

  • Harding : x :: x : Hughes

What Is the World Coming to,

when a man can't even use the word somdomite without prompting the innuendo that this was an inadvertent error? Give me some credit, folks.

More on the NSA Surveillance Program: ABC News reports that Russell Tice, a former NSA insider, has publicly announced that he is one of the sources for the New York Times reporting on the NSA domestic surveillance program. The story includes the following tidbits relevant to the program itself:
  Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.
  "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."
  According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.
  President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.
  But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.
  "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.
  Of course, saying that "the technology exists" doesn't necessarily mean that the technology was used in that way in this program. It might, but it's not clear. Plus, it's unclear what "the full range of secret NSA programs" means. Is that a reference to ECHELON? I don't think we know. Thanks to Eric Freedman for the link.
The Ethical Brain:

I recently read Michael Gazzaniga's most recent book, The Ethical Brain. This is a great book by a leading neuroscientist (and friend). The book seems to have arisen from Gazzaniga's work with the National Council on Bioethics, animated in substantial part by his perception of a lack of knowledge of science among some of his colleagues there. So this book seems to be pitched at the same audience to whom Bioethics report was aimed, in an effort to provide an accessible scientific background to a number of contemporary ethical and political controversies.

The book is more a collection of essays on related topics than an integrated whole. Part III of the book may be of most interest to readers here, as it is on the implications of neuroscience for law, including related questions such as memory. There are some terrific points in here. He surveys many of the currently-available "truth detection" tests that are out there. He discusses the promise and difficulties of some of the technologies out there for truth detection, such as fMRI machines. Toting it up, as I read him, he seems to conclude that perhaps the one with the most promise is one that focuses on facial expressions, which he concludes is quite difficult to fake.

He also has a fascinating discussion of the unreliability of many of the conventionally-used courtroom techniques, such as eyewitness reports. One amazing example he gives is of a woman who was assaulted while watching television, and then later confused her assailant with a person who happened to be on television at precisely the same instant. He recounts other situations where false memories hinder investigations and the like. For instance, he recalls the "DC sniper" from a few years ago, where it was thought that the guys were driving a white van. Instead, an eyewitness had simply seen a white van at the scene of the crime, and misidentified it as the sniper. Later witnesses then also thought they had seen a white van because the media kept reporting the white van, but it was largely imagined. His overall conclusion is provocative--many of the courtroom techniques we use today are terribly flawed, and there are alternatives out there that are much more reliable.

He also discusses a wide range of ethical issues that arise from various issues surrounding brain sciences, such as the use of drugs that make us smarter, as well as issues of aging and other questions. Given that abortion is somewhat in the news right now, I'll mention one provocative argument he offers that I hadn't previously seen. In one section of his book he describes the life cycle of a fetus. The goal here is to try to focus on certain developmental milestones to address the question of when a fetus becomes a "person" for moral purposes, and perhaps legal purposes. So, for instance, he argues that there is no reasonable basis to claim that moral personhood arises at the moment of conception, or more specifically, before 14 days of gestation. The crux of his argument is that both twinning and chimeras (two embryos spontaneously reconverge and become one again) occur during this period. His conclusion about this is, "it is hard to ascribe the sense of what is happening to the uniqueness of the 'individual' or 'soul' that is supposedly being formed at the instant of conception." (p. 12).

He also has an interesting chapter on religion, where he describes how the brain reacts during religious experiences and the psychological experience of religion. One interesting point he makes in passing is that it turns out that scientists are just attached to their particular theories as religious believers, and in fact, scientists are just as reluctant to surrender their beliefs about science when confronted with contrary evidence as are religious believers. He notes (p. 146):

Nowhere does the human capacity to form and hold beliefs become more stark than when clear scientific data challenge the assumptions of someone's personal beliefs. It would be easy to spin a story line about how a particular person with a set of religious values resisted the biological analysis of this or that finding in an effort to reaffirm his or her belief. There are many such stories, but they miss the point. Scientists themselves are just as resistant to change a view when confronted with new data that suggest their view is incorrect. All of us hold ot to our beliefs, and it now appears that men are even more tencious about not letting go than are women.

He adds (pp. 146-47), "Interestingly, it turns out that scientists are slower to change their views in the face of new data than are preachers."

Overall, quite an interesting book that covers a wide range of modern controversies in bioethics. It is also quite accessible. It is also short (178 pages) and in a few instances I felt that it was too short, in the sense that some of the discussions could have been developed in greater depth. Nonetheless, it is highly recommended.

One testament to Gazzaniga's influence on popular discussion of these issues is that it is reported that he was the prototype for the character of the neuroscience professor in Tom Wolfe's book, I Am Charlotte Simmons. In fact, Gazzaniga is mentioned by the professor in Wolfe's book during one of his lectures.


Tuesday, January 10, 2006

MSM Reaction to Alito Hearings: With Tuesday's hearings over, we're getting the first of the big media insta-reactions to the Alito hearings. Based on my quick survey, most commentators seem to think Alito had a good day. Here are a few representative reactions:

  Over at the New York Times, Adam Liptak and Adam Nagourney think Alito is holding up well:
  If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.
At the Washington Post, Charles Lane focuses on how Alito presents himself as low-key and reassuring:
  On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.
  Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary's role as a check on presidents who overstep their constitutional authority.
At NPR & Slate, Dahlia Lithwick thinks Alito is succeeding by making the proceedings really really boring:
  There are, it seems, better and worse ways to game your Supreme Court confirmation hearings. John Roberts charmed his way through the proceedings. Sam Alito has chosen to simply bore his way through, and as a consequence, two days into the hearings, the Democrats on the judiciary committee have hardly laid a glove on him. I count only three occasions today on which he refuses to answer a question; that's not going to be his way. His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced. He never tells you the answer to the question, but he's always expansive on how he might get there.
  There are some tangible benefits to this approach: For one thing, Alito has thus far generated not one flash of heat. There has been no clash, no argument, no losing of his temper. He is like a very, very smart rock. And this stoniness is slowly wearing down his opposition. . . . Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.
CNN Poll on NSA Surveillance Program: A new CNN poll suggests that public opinion on the NSA domestic surveillance program is roughly evenly divided: 50% think the President was right to authorize the surveillance, 46% think the President was wrong, and 4% have no opinion.
Notes on the Alito Hearings: Stephen Bainbridge offers his take on the Alito hearings:
After catching up on the first day of the Alito hearings, one conclusion seems inescapable; namely, that Alito is more machine now than man; twisted and evil. He yearns to take liberals, women, minorities, gays, small children, and puppies to the Dune Sea, and cast them into the pit of Carkoon, the nesting place of the all-powerful Sarlaac, in whose belly they will find a new definition of pain and suffering as they are slowly digested over a thousand years. (Or maybe it's the slavering maw of Cthulhu the Great. I zoned out for awhile during Durbin's opening remarks.)
  Heh. Seriously, though, I've caught about two hours of the testimony today, and based on what I heard I think Alito is doing very well. His delivery style is a bit nervous, and he lacks the Roberts instinct to say soothing things to address a questioner's concerns. But on the substance, Alito seems to be significantly more forthcoming than Roberts, and he is offering solid defenses of his prior decisions. Further, he has distanced himself from the Article II authority claims that the Senators are worried about in light of the NSA's domestic surveillance program. As Kevin Drum notes, these kinds of answers "[don't] give liberals much of a purchase to lead a battle against his nomination."
More on One-to-One Speech vs. One-to-Many Speech:

Ten years ago, it turns out, one of my law review articles discussed the problem with applying telephone harassment laws (or even harassment laws that govern one-to-one annoying e-mail) to one-to-many speech. That article pointed out that e-mail harassment laws might punish one-to-many speech posted to e-mail discussion lists; but the analysis equally applies to the recently enacted change to the federal harassment law, which would punish one-to-many speech posted on Web sites.

The bottom line is that, even if it's OK to punish speech that's likely to be annoying and offensive to its sole listener -- on the theory that such speech is unlikely to enlighten or edify, and likely only to annoy -- such restrictions shouldn't be extended to speech that has many listeners, many of whom might find the speech valuable even though it's annoying (perhaps deliberately so) to some other listeners.

Annoying Anonymous Speech Online:

People are troubled by a just-enacted statute that extends part of telephone harassment law to the Internet. I think they're right to be troubled by it, and here's why.

First, the statute, with deletions marked by strikeouts and insertions marked by underlines:

47 U.S.C. § 223(a)(1)(C): Whoever ... in interstate or foreign communications ... makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications....

(h)(1) The use of the term “telecommunications device” in this section --
(A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this chapter; and
(B) does not include an interactive computer service [= any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions].; and
(C) in the case of subparagraph (C) of subsection (a)(1), includes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet

What does this practically mean?

1. This potentially criminalizes any anonymous speech on a Web site that's intended to annoy at least some readers, even if it's also intended to inform other readers. This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he's trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target's partisans or fans).

2. How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).

This is a big change. One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value (see item 3 below), but to the extent that it's in some measure deterred, the loss to public debate isn't that great — speakers are still free to speak to others besides the person they're trying to annoy.

But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable. Juan might think that the target of the speech deserves to be berated for his misconduct, and that the target's supporters deserve to be berated for siding with the target; but Juan might also want the rest of the public to hear about the target's misbehavior, and to be persuaded to think less of the target, or to act differently themselves.

Though the desire to annoy may sometimes be petty (and I'm using Juan just because Juan is our one anonymous coblogger here, not because Juan generally tries to annoy people!), it shouldn't strip the speech of constitutional protection. "[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment.... [E]ven when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment ...." And the same is true, I think, in discussion of consumer matters, of religion, of sports, and of other things, not just public affairs.

3. Orin suggests that this isn't a problem, because even traditional telephone harassment law has already been limited to exclude "speech [that] is protected by the First Amendment." Orin cites United States v. Popa, a case that set aside as unconstitutional a conviction of Ion Popa, who made several racist calls to the U.S. Attorney for the District of Columbia (the chief federal prosecutor in the District). The trouble, though, is that it's far from clear just what speech Popa protects.

A. One possible interpretation of Popa is that it bars telephone harassment prosecution when the "speech is protected by the First Amendment." At some level, that's almost tautological — of course when the speech is protected by the First Amendment, the First Amendment prohibits prosecution for that speech. But it also returns us to the underlying question: When is speech that's intended to annoy the recipient protected by the First Amendment? If someone calls not a prosecutor but a law professor and leaves an anonymous deliberately annoying racist message, is that protected? What if he calls a law student with such a message? What if he posts an anonymous blog post that says this? The poster would have little guidance about what he may or may not say.

Of course, when prosecuted, the speaker can say "my speech is protected by the First Amendment." But given that the statute draws no distinction between what constitutes protected annoying anonymous speech and what constitutes unprotected annoying anonymous speech, the speaker doesn't know what he may safely say, and the prosecutor doesn't have much guidance about what he should prosecute. It's as if Congress enacted a whole bunch of speech restrictions but tacked on an "except if the First Amendment prohibits this" to them. The result would be speech restrictions that are technically not overbroad (since by their terms they don't bar First-Amendment-protected speech), but that are practically too vague, since they provide little guidance to people about what they may say.

B. Another possible view is that the telephone harassment statute bars any prosecution for speech unless the speech falls within the traditional First Amendment exceptions, such as threats, obscenity (which means hard-core pornography), false statements of fact, fighting words, and the like. These exceptions are at least tolerably well-defined, and all of us already generally have to avoid speech that falls within these exceptions (since the federal and state governments have taken advantage of most of these exceptions to in fact outlaw or at least make tortious speech that fits in the exceptions).

But if that's the interpretation of Popa, then most garden-variety telephone harassment, of the sort that most people assume is fully prosecutable, would be unpunishable. Calling someone anonymously simply to insult them wouldn't be covered (such insults don't fit within the "fighting words" exception, since the anonymity and distance of the speaker makes it unlikely that the speech will start a fight). Likewise for calling someone to make an indecent suggestion, except when the suggestion is an actual threat of violence or is so sexually explicit as to be obscene (which is a pretty high threshold to meet). The very premise of telephone harassment law, as it's generally understood, is that some such speech — while protected in many media — is unprotected when said with the intent to annoy (and perhaps said to a particular person). Harassment law thus rests on the theory that there should be a new First Amendment exception recognized for "telephone harassment" that goes beyond just threats, fighting words, and the like. So the "speech is protected unless it's threats, fighting words, obscenity, incitement, or false statements of fact" theory is thus almost certainly not what Congress has had in mind, and is unlikely to be adopted by the courts.

C. Popa can easily be read, I think, as holding that speech that's "intend[ed] in part to communicate a political message" is protected from punishment by the statute. But it's far from clear that this would protect speech on a Web site that's intended to communicate a message about some company's allegedly mistreatment of its consumers, that's intended to criticize the performance of a sports figure, that's intended to express an annoying view about theology, or whatever else. What's more, it's often not easy to tell exactly what's a "political" message and what's not. The court in Popa held that racist insults of a high-level official are political. What about speech that criticizes law professors (whether racist speech, speech that casts aspersions on their intellect or teaching ability, or what have you)? What about speech that criticizes a particular student in racist terms, but implicitly conveys a message about school admissions? (Not that I would endorse such speech, of course; I just think that (a) it ought to be constitutionally protected, when posted on a Web site, even if it's intended to annoy, and (b) there's likely to be controversy about whether it's political.)

D. Finally, Popa can also be read as holding that speech is protected from the statute when the speaker "intend[ed] to engage in public or political discourse." "Public discourse" is broader than just "political message," and would certainly include religion and probably consumer matters involving large businesses and the like. But it too is a pretty vague term. Is publicly distributed personal criticism of a particular professional's skills, for instance, a lawyer's or a professor's, "public discourse"? There's no well-established First Amendment test for this, and the Court's use of the related term "public concern" has proven to be unpredictable and, I think, often misguided (see Part V.B of this article, starting with PDF page 46).

So on balance I think the extension of the telephone harassment statute to the Web is a mistake. The statute already has problems, and the extension risks substantially exacerbating those problems, by potentially covering one-to-many annoying Web speech as well as the somewhat less valuable one-to-one annoying telephone calls.

Broadband Phone Service:

Praise where it's due: I signed up several months ago for Broadphone's (msmnetphone's) unlimited service plan for the U.S., Canada, UK, and Israel. It was easy to set up, costs $29.99 a month ($5 less, I think, without Israel), and has been a complete pleasure--no problems, and excellent clarity.

[Puzzleblogger Kevan Choset, January 10, 2006 at 11:41am] Trackbacks
Supreme Order II:

By what rule have I ordered the Supreme Court Justices below?

  • Breyer

  • Marshall

  • Woods

  • Stewart

  • Stevens

  • Blackmun

  • Kennedy

Time to Bring Back Congressional Term Limits:

This George Will column (hat tip: Instapundit) makes a brief case for bringing back congressional term limits. In 1995, the Supreme Court determined in a 5-4 vote that term limits imposed by state legislatures were unconstitutional. As someone who believes that Supreme Court jurisprudence is affected by external events, I think one or more states should try to enforce their old term limits statutes or pass new ones, and see if they can't get Justice Kennedy or one of the other justices from the previous majority to switch his vote. Now that the Republicans seem to have firmly entrenched their majority in the House and maybe the Senate, and proven themselves too often utterly corrupt in the process,perhaps some of the more liberal Justices will rethink their views on term limits, which I found completely unpersuasive from a constitutional perspective to begin with.

Privacy and Guns:

Dan Solove, a noted privacy expert and advocate, and supporter of gun controls (though not of absolute gun bans), responds to my earlier post on the subject; I meant to blog a link about this weeks ago, but it slipped through the cracks.

Related Posts (on one page):

  1. Privacy and Guns:
  2. Privacy and Guns:
Quick, Someone Call the American Library Association: Over at Crooked Timber, Kieran Healy has obtained library records that identify the reading habits of Supreme Court nominee Samuel Alito. Can a Firestone Library Privacy Protection Act be far behind?
A Skeptical Look at "Create an E-annoyance, Go to Jail": Declan McCullagh has penned a column that is custom-designed to race around the blogosphere. It begins:
  Annoying someone via the Internet is now a federal crime.
  It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.
  In other words, it's OK to flame someone on a mailing list or in a blog as long as you do it under your real name. Thank Congress for small favors, I guess.
  This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison.
  "The use of the word 'annoy' is particularly problematic," says Marv Johnson, legislative counsel for the American Civil Liberties Union. "What's annoying to one person may not be annoying to someone else."
  This is just the perfect blogosphere story, isn't it? It combines threats to bloggers with government incompetence and Big Brother, all wrapped up and tied togther with a little bow. Unsurprisingly, a lot of bloggers are taking the bait.

  Skeptical readers will be shocked, shocked to know that the truth is quite different. First, a little background. The new law amends 47 U.S.C. 223, the telecommunications harassment statute that goes back to the Communications Act of 1934. For a long time, Section 223 has had a provision prohibiting anonymous harassing speech using a telephone. 47 U.S.C. 223(a)(1)(C) states that
[whoever] makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications . . . shall be [punished].
  Seems pretty broad, doesn't it? Well, there's a hook. It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.

  Under cases like Popa, 47 U.S.C. 223(a)(1)(C) is broad on its face but narrow in practice. That is, the text looks really broad, but prosecutors know that they can't bring a prosecution unless doing so would comply with the Supreme Court's First Amendment cases.

  That brings us to the new law. The new law simply expands the old law so that it applies to the Internet as well as the telephone network. It does this by taking the old definition of "telecommunications device" from 47 U.S.C. 223(h), which used to be telephone-specific, and expanding it in this context to include "any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet."

  Now I suppose you can criticize Congress for being lazy. They haven't rewritten the old 1934 statute in light of the modern First Amendment, and that has resulted in a criminal statute that looks much broader than it actually is. The new law expands the preexisting law by amending the definition of "telecommunications device," which maintains the same gap between the law on the books and the law in practice. The formulation is a bit awkward. But the key point for our purposes is that the law is not the "ridiculous" provision Declan imagines. It looks funny if you don't know the relevant caselaw, but in practice it simply takes the telephone harassment statute we've had for decades and applies it to the Internet.

  UPDATE: Cal Lanier takes a look, and concludes that this is just about making sure the telephone harassment law applies to VOIP.

Monday, January 9, 2006

Hudson v. Michigan and Remedies in Complex Systems: Gina Holland has a report on the oral argument this morning in an interesting Fourth Amendment case, Hudson v. Michigan. The case considers the scope of a suppression remedy for a police officer's failure to follow the "knock and announce" requirements that the Supreme Court has recently held are required by the Fourth Amendment when the police execute a warrant. For a summary of the case, see this helpful post from SCOTUSblog.

  I haven't followed Hudson closely enough to have specific views of it, but the case does bring up some of the broader dynamics of Fourth Amendment law that may be worthy of more general rumination. Specifically, I think Hudson illustrates some of the difficulties inherent in devising a remedy in complex systems. Here's my thinking. Imagine you're a Justice who really values the knock-and-announce rule and wants to make sure the police follow it. Your instinct will be to impose a strict requirement, such that slight deviations from the rule lead to suppression of the evidence obtained. Your thinking will be that a strong remedy means that the rule will be followed. Greater judicial scrutiny will bring greater compliance with the rule.

  Perhaps, but perhaps not. The problem is that the knock-and-announce rule has to coexist with all the other rules that govern searches, and any one rule may end up exerting an unintended hydraulic effect on police behavior. Consider how the knock-and-announce remedy will coexist with the longstanding Fourth Amendment preference for warrants. As precedents like Illinois v. Gates suggest, the Supreme Court has generally tried to encourage warrants by providing less post-indictment judicial review of searches pursuant to warrants than warrantless searches. The idea is to give police officers an incentive to get warrants: Officers know that the chances their searches will be upheld are much greater if they get warrants, so they'll get warrants more often.

  A tough knock-and-announce rule may threaten that preference, because the knock-and-annouce rule does not apply at all to warrantless searches. As a result, the greater the judicial scrutiny on the knock-and-announce rule, the more the police will look for alternatives to warrants. At the margins, at least, ratcheting up the protections of the knock-and-announce rule may have the unintended consequence of lessening judicial oversight by encouraging more warrantless searches. As a result, crafting the remedy for knock-and-announce violations is much harder than just picking the value to be served; to have the desired effect, the remedy has to fit within the regime of preexisting legal rules.
Alito v. O'Connor: Over at the National Journal, Stuart Taylor is auditioning for a job with People for the American Way. Sort of.
Barnett and Sunstein on the "Constitution in Exile" (Among Other Things):

Kaimi Wenger has blogged last Friday's AALS session entitled "The Constitution in Exile", featuring Cass Sunstein and our own Randy Barnett. I attended the session, and have a few additional thoughts:

(1) When pressed on whether there is a "Constitution in Exile" movement that dominate Republican legal circles, Sunstein consistently relied on an argument from authority: Doug Ginsburg, who should know, says there is. As Wenger notes, when pressed further, Sunstein argued

first that "there is a movement, but Randy isn’t part of it;" Who then comprises the movement? He mentioned unnamed persons in the Meese justice department; unnamed Republicans; "fundamentalists." He asserted that this group comprises a "monolithic political movement."

However, if we go back to what Ginsburg actually wrote in his now-famous book review, he is clearly referring to a small, lonely group of academics, not the mainstream of the Republican conservatism:

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty*****-even if perhaps not in their own lifetimes.

What Ginsburg is actually describing as of 1996, it seems to be, is University of Chicago Professor Richard Epstein, who admittedly writes enough to practically be a movement unto himself, and perhaps a couple of other people. Who else among prominent "conservatives" (other than perhaps USD's Siegan) wanted to revive Lochner v. New York (substantive due process)? It's rather tendentious to ascribe views such as Epstein's to the Meese Justice Department, which considered, and explicitly rejected, nominating Epstein to the Seventh Circuit because he was too "activist." While I know Randy rejects the idea that he believes in a "constitution-in-exile," as of 2005, other than Epstein, Randy would clearly be the most prominent proponent of reviving the doctrines mentioned by Ginsburg (though he'd substitute privileges or immunities for substantive due process). So, if there was a Ginsburgian "movement" (and there isn't, and Ginsburg certainly didn't call it a movement), Randy would be a charter member. If Randy isn't part of such a movement, then there isn't one.

(2) More generally, as I pointed out in my question at the session, not only is it impossible to find anyone who wants to restore constitutional law as it existed in 1937, mainstream Republican conservatives explicitly reject elements of that jurisprudence, including substantive due process (think not only Lochner, but Meyer v. Nebraska and Pierce v. Society of Sisters), and limits on executive power (Humphrey's Executor). And the idea that President Bush--who has presided over the greatest increase in federal power since Lyndon Johnson--and his core supporters seek to overturn the New Deal, judicially or otherwise, flies in the face of the last five years of Republican rule. Can you even imagine W. saying "government isn't the solution, government is the problem," much less acting on it?

(3) Oddly,the "Constitution in Exile" meme has caught on, but the truth is far more damaging (and discouraging): the conservative majority of the Supreme Court has a general conservative trajectory, but within that trajectory is rather unprincipled and often seeks to accomplish conservative political goals even when they conflict with conservative judicial principles (e.g., the conservatives' views on state sovereign immunity and, more controversially, affirmative action, are both "activist" and nonoriginalist). Only Justice Thomas makes even an attempt to adhere to a consistent conservative, originalist judicial philosophy, and Thomas and his radical views of constitutional interpretation only got past the Bush I White House because they needed someone to replace Thurgood Marshall.

Apparently, however, the same dynamic is going on with judicial politics as with economic policy: the Democrats, instead of criticizing the Republicans for their betrayal of their purported principle of limited government, instead attack them for allegedly engaging, or scheming to engage in, a brutal war against federal power. Of course, it has been brutal, in it's own way, but only to supporters of limited government: after a decade and half of Republican control of the Court, the federal government can't put you in jail for possessing a gun in front of a local public school--unless, of course, Congress specifically makes a finding that such possession has a substantial effect on interstate commerce.

*****"Constitution of Liberty"--Now there's a name for a movement. Why do you think Sunstein et al. claim based on Ginsburg that there is a "Constitution in Exile" movement, not a "Constitution of Liberty" movement? Could it be that (1) the former sounds ominous, the latter sounds good; and (2) the latter makes it clear that Ginsburg was referring to a small group of libertarian scholars, not the broader conservative movement?

UPDATE: A reader suggested that I have debunked a "strawman" in defining the purported constitution in exile movement as including all constitutional doctrines as they were in 1937, not just the Commerce Clause and other federal power doctrines. But consider how Jeffrey Rosen's influential NY Times magazine article on the subject begins: "Imagine that the interpretation of the Constitution was frozen in 1937."

Alito's Opening Statement: Good stuff, I thought. That's certainly who he is; although you figure that such statements are quite scripted, that was genuine Alito.
Green Bag's Legal Writing Almanac: The Green Bag has posted the list of winning entries for its new annual good legal writing almanac. The Green Bag's plan is to publish a book every year containing the best legal writing from the previous year. The Green Bag assembled a diverse Board of Advisors to nominate and select the entries, and the Board selected a number of articles, books, briefs, and opinions that it believed deserve wider recognition (full disclosure: I'm on the Board of Advisors). Congratulations to this year's winners.
Liveblogging Alito: SCOTUSblog is liveblogging the Alito hearings. This afternoon will mostly consist of speeches by the members of the Judiciary Committee. No surprises so far.
Important Lesson for Appellate Advocates: When representing a capital defendant on appeal, don't refuse to discuss parts of the brief you didn't write; do have some familiarity with the record; and, what ever you do, don't make light of your case by describing the evidence against your client as "overkill — excuse the pun." Appellate Law & Practice has the scoop on the Sixth Circuit's opinion today in Franklin v. Anderson.

  UPDATE: In the comment thread, former prosecutor Paul Rosensweig points out that the Ohio state courts are at least partially responsible.
ACLU Derangement Syndrome:

There's Bush Derangement Syndrome, there's Those Darned Jews Derangement Syndrome, there's Those Awful Somdomites Derangement Syndrome, and there's ACLU Derangement Syndrome. Clayton Cramer points to a very interesting lawsuit in Italy (I quote the Times (London) story, which makes the matter seem somewhat more troubling than the Washington Times story that Cramer links to):

AN ITALIAN judge has ordered a priest to appear in court this month to prove that Jesus Christ existed.

The case against Father Enrico Righi has been brought in the town of Viterbo, north of Rome, by Luigi Cascioli, a retired agronomist who once studied for the priesthood but later became a militant atheist.

Signor Cascioli, author of a book called The Fable of Christ, began legal proceedings against Father Righi three years ago after the priest denounced Signor Cascioli in the parish newsletter for questioning Christ’s historical existence.

Yesterday Gaetano Mautone, a judge in Viterbo, set a preliminary hearing for the end of this month and ordered Father Righi to appear. The judge had earlier refused to take up the case, but was overruled last month by the Court of Appeal, which agreed that Signor Cascioli had a reasonable case for his accusation that Father Righi was “abusing popular credulity”.

Signor Cascioli’s contention — echoed in numerous atheist books and internet sites — is that there was no reliable evidence that Jesus lived and died . . . .

Signor Cascioli’s one-man campaign came to a head at a court hearing last April when he lodged his accusations of “abuse of popular credulity” and “impersonation”, both offences under the Italian penal code. . . .

But then, after noting the story, the post goes on:
Now, I would like to think that the freedom of religion and freedom of the press provisions of the First Amendment would prevent such a suit from going forward in the U.S.--but you never know what cleverness the ACLU will pull out of its bag of magic tricks next.

In Britain, a prominent scientist is arguing that religion is a form of child abuse [quote omitted] . . . .

Ah, that's it! The ACLU will argue that children have a right to not be mentally abused by exposure to religion. This was, after all, the policy of the Soviet Union, which prohibited teaching religion to those under 18, and the ACLU's founder was a defender of Soviet practices on civil liberties. . . .

Utterly missing is any foundation whatsoever supporting the assertion that the ACLU would support any such speech restriction. That the ACLU's founder was originally a defender of the USSR is quite right, but what happened in the 1930s tells us very little about what the ACLU is likely to do 70 years later. (It's also quite incomplete, I think, without an acknowledgment that Baldwin later turned into a severe critic of the USSR and of Communism.) The ACLU has on balance been a strong supporter of free speech claims; not as strong as I might have liked at times (including in some cases involving private religious speech in public schools and , though note its correct view in this religious speech case), but hardly a fit target for aspersions such as these.

When I queried Mr. Cramer about this (with a message that read "Interesting subject -- but do you have any foundation whatsoever for the suggest that the ACLU would make any such arguments?"), he responded:

Its long history of opposing religious instruction in public schools, even when multiple beliefs were being taught, with the permission of the parents? I'm thinking of McCollum v. Board of Education (1948). I don't know if they participated in that suit or not, but I do know that they have participated in suits attempting to suppress far less substantial expressions of Christianity, such as the Los Angeles County seal idiocy.
But surely there's a very big difference -- a difference that First Amendment law has long made clear -- between what government agencies may say, and what private institutions and individuals (including churches) may say. Even many conservatives would agree, for instance, that government-run schools shouldn't teach specific aspects of religious doctrine (e.g., that Presbyterianism provides the proper theology, and all else is error and heresy); even Justice Scalia's opinion in the Ten Commandments case, for instance, was limited to government speech that took no sides within the Christian/Jewish/Muslim monotheistic tradition. Yet this tells us nothing about what churches or priests may say on their own. Mr. Cramer goes on to write:
Most people that aren't lawyers can see that the ACLU's mission hasn't changed since Roger Baldwin wrote that article about the Soviet Union.
I've criticized the ACLU often before, probably more often than I've defended them. I'm sure I'll criticize them often in the future.

But, unfortunately, it seems to me that much criticism of the ACLU of the right reflects more by way of knee-jerk hostility than simply well-founded ideological disagreement. The four Derangement Syndromes I noted in the first paragraph (yes, the term is partly facetious; I don't think it's literal "derangement") have different moral qualities -- but what they share in common is a hostility that causes the speaker to miss contrary evidence, and to lose a sense of perspective. Bush has this effect on some; Clinton had this effect on some in the past; the NRA has this effect on some; the ACLU has it on some, too.

Women and Blogging:

Christine Hurt (The Conglomerate) has some thoughts on the subject. Thanks to Paul Caron (TaxProf) for the pointer.

Tookie Williams, Martin Luther King, Jr., and a "Foreign-Born Governor":

Cal Poly Pomona political science professor Renford Reese has an op-ed comparing Stanley Williams to Martin Luther King, Jr., plus, among others, Gandhi and Mother Teresa. No, seriously:

I learned of the execution of Stanley Tookie Williams while I was giving a series of lectures in Shanghai, China. I was struck by the many ironies surrounding this controversial death penalty case.

The fact that I was in China learning of the execution of a man in the United States was the first irony that caught my attention. I asked a Chinese university student whether he supported the death penalty. He said, "Yes, but I am from China."

The second of many ironies was that an elitist, foreign-born governor who made his fortune by promoting violence in his films denied Williams clemency.

Perhaps the most provocative irony, however, that occupied my mind while I thought of the execution of Williams was the similarities he shared with Martin Luther King Jr. For those who think it is blasphemous to use the self-proclaimed co-founder of the Crips and King in the same sentence, bear with me. . . .

[I]respective of his guilt or innocence involving the crimes for which he was executed, Tookie was once a bad person — a cancer to his community. It was not his past that links him to King but his redemption. . . . [F]rom their [jail] cells, King and Williams embraced the same theme. Despite Williams’ violent past, he came to embrace King’s philosophy of agape love.

Both Williams and King were celebrated internationally and vilified in their own country. Although Williams had many supporters in the United States, there were many more who thought he deserved the death penalty. During the time of King’s murder, many in America could care less about his embrace of peace. FBI Director J. Edgar Hoover and many like-minded Americans saw King as a race agitator. Decades removed from the civil rights movement, King has become America’s icon for peace.

King and Williams were both worthy of being considered for a Nobel Peace Prize. Tookie was nominated for the prestigious award on multiple occasions.

King won the Nobel in 1964. Moreover, King embraced peace in the midst of the violent and senseless Vietnam War. Williams embraced peace in the midst of the violent and senseless Iraq War. . . .

If King were alive, he would have forgiven his brother Tookie for his wrongful deeds. He would have endorsed clemency for him. For those, including Gov. Schwarzenegger, who advocated the death penalty for Williams, King would have urged not to ‘‘drink from the cup of bitterness and hatred.” . . .

King stood for peace and was killed. Williams stood for peace and was killed. America must realize that violence begets violence. We live in a society that gives us contradictory messages about violence. We embrace it in some forms, like the governor and the president, and despise it in other forms. As Americans we must reconcile our contradictory stances on violence. . . .

Most great figures in world history are remembered for their compassion. King shared this trait with the Ghandis, Mother Teresas, and Mandelas of the world. He also shared this trait with the late Stanley Tookie Williams.

There's just so much here that I can't cover it all: The reference to Nobel Peace Prize nominations, as if they mean anything. (Both the op-ed's author and I, as professors of law or social science, are perfectly entitled to nominate whomever we please for the Nobel.) The irrelevant reference to the Iraq War. The focus on a person's supposed redemption, without any recognition that actual past conduct — say, multiple murders — might also be relevant, and that maybe Martin Luther King, Jr. would have been remembered differently (despite his "compassion") if he'd murdered innocent people. (Incidentally, if Williams is just like King, shouldn't he be just let out of jail altogether? Presumably not executing him wouldn't be enough, no?)

But what takes the cake, I think, is this:

The second of many ironies was that an elitist, foreign-born governor who made his fortune by promoting violence in his films denied Williams clemency.

What on earth does it matter that Schwarzenegger is "foreign-born"? How is this "ironic," or for that matter remotely relevant? Seems to me like a pretty troubling form of nativism — tarring the actions of an immigrant made good by referring to his status as an immigrant — but I can only say "seems to me" because the statement is so perplexing that it's hard to do more than just guess that it's an insult.

Thanks to my colleague Tim Groseclose for the pointer.

[Puzzleblogger Kevan Choset, January 9, 2006 at 11:18am] Trackbacks
More Words:

What do these words have in common?

  • Aches, Calais, Onset, Swatter.

If you figure it out, post other examples in the comments.

Blogging and Scholarship: As Orin noted, on Friday, I spoke on "Blogging and Scholarship" at a panel sponsored by the Section on Scholarship of the Association of American Law Schools. Here is the program description:
One of the most salient developments in the internet revolution is blogging. Blogging has become a widespread cultural phenomenon and has had important implications for politics, the media and education. This panel considers academic blogging and asks the question whether blogging is a new form of scholarly activity or just a diversion from the pursuit of serious intellectual inquiry.
While Paul Caron offers an accurate, but truncated, report of the talks here, it fails to emphasize the degree to which I endorsed blogging by scholars. Properly done, I think blogging can contribute quite constructively to one's scholarship and to making that scholarship accessible to a much wider audience. Ironically, many of the points I made in favor of the Joys of Blogging are expressed far better by Daniel Solove on Concurring Opinions than they were summarized by Paul. (Hopefully a podcast of the session will be available. If it is, I will link to it here. BTW, Dan also includes a nice set of links to other academic bloggers who have addressed the topic.)

I say "ironically" because Dan was not even at the session to hear my remarks, and is instead responding to Paul's report of my cautions to junior untenured faculty members. At the session itself, when I described the numerous advantages of academic blogging that Dan so ably and independently identifies, I hastened to add that, of course, these benefits accrue to junior professors as well as senior. But there are risks to junior professors not faced by those with tenure, and I did take some time on these dangers as well. There are two main ones: (1) Potential negative reaction by tenured faculty to one's opinions. This is especially true of opinions that run to the left or right of the bulk of the faculty. (2) The risk of distraction from the long-form scholarship that leads to tenure and, more importantly, generates the knowledge that makes one a genuine scholar rather than solely a polemicist or pundit.

I also explained why blogging is no substitute for long form scholarship using my recent Ninth Amendment article as an example. On the blog, I can assert that the Ninth Amendment originally referred to natural liberty rights, but I can only establish that by considering the evidence. And this took 80 pages to do.

During the excellent discussion, some of the points Dan made in mitigation of these risks were made from the floor by other bloggers, who were well in attendance, and I generally agreed with them. For example, those blogging about technical doctrinal areas are less subject to these risks than someone blogging on a general legal (and other) opinion blog like Volokh.

But I think it is cavalier not to caution untenured faculty about the risks they run within their own faculties when they decide to blog. Whether the potential benefits outweigh these risks is not only a judgment they each have a right to make, they possess the local knowledge of their faculties, and personal knowledge of themselves, that third parties like me lack. (The role of personal and local knowledge in a justification of liberty rights is heavily stressed in my book, The Structure of Liberty: Justice and the Rule of Law (Oxford 1998)).

PS: Larry Solum of Legal Theory Blog spoke about how the Internet generally is affecting scholarship itself. His was a fascinating take on a much-neglected subject, and I am afraid too much of the energy in the room was devoted the career issues I raised rather than his deeper analysis. I hope he blogs about this soon.

Update: Larry has blogged his thoughts here. Check it out.

Related Posts (on one page):

  1. Blogging and Scholarship:
  2. Lawprof Blogging: Scholarship or Distraction?:
Bob Loblaw Law Blog:

For the few dozen of us who watch the brilliant Arrested Development, it turns out that there is in fact a "Bob Loblaw Law Blog" (although it is a real blog run by attorney Robert Loblaw).

There is actually an website and blog as well. This one is a spoof site set up by the Arrested Development guys.

I still can't believe they are canceling the show. Is there any other show that could pull off the self-referential parody of its pending demise. At least there are a few more episodes--and those Season 1 & 2 dvd's I gave to my wife for Christmas.


I should have said that "Robert Loblaw" is a pseudonym for a real attorney, as opposed to an Arrested Development spoof blog (like Imoscar).

Canadian Election Poll:

According to Saturday data from CPAC-SES Nightly Tracking Pollthe current Canadian national election race is "neck and neck. The Conservatives draw 34% and the governing Liberals have 32%. The further-left New Democratic Party attracts 17%, while the Bloc Quebecois is at 11%. The Greens are at 6%, and undecided is 17%.

The CPAC-SES polling shows strong regional differences. In "Atlantic Canada", the Liberals are very far ahead. The Bloq Quebecois has an enormous lead in Quebec.

"Western Canada" also has a clear favorite, the Conservatives, who lead by 16%.

The batteground is Ontario, where the Liberals and Conservaties each have 37%, while the NDP pulls 21%.

In national elections, Ontario has often delivered the key votes to put the Liberals over the top. Yet in provincial elections, Ontario has sometimes chosen conservative governments.

The NDP, while generally to the left of the Liberals on fiscal policy, is sometimes supportive of gun-owner rights. The Liberal leadership, although not all Liberal M.P.s, has been extremely hostile to the notion that gun owners even have "rights", and has promoted the view in U.N. fora that U.S.-style gun policies are a violation of international human rights law.

NDP leader Jack Layton told Saskatoon's The StarPhoenix: "We find that there's a broad agreement that (the registry) hasn't been well set-up. It's been totally mismanaged and many people agree that it's got to be fundamentally changed." The StarPhoenix writes that Layton "says the registry punishes people who own guns even if they have legitimate reasons." The paper also reports that Layton favors adding handguns to the controversial national registry. (Legally-owned Canadian handguns have been nationally registered since 1934, in their own registy.)

Layton continued: "The way it's [the long gun registry's] been set up, it leaves gun owners wondering if the federal government thinks that merely because they have a long gun they are criminal and that's not right."

Conservative Leader Stephen Harper argues for abolishing new registry of long guns, while increasing mandatory sentences for some gun crimes, and creating a new five-year mandatory minimum for breaking and entering with the intent to steal a gun.


Sunday, January 8, 2006

Lawprof Blogging: Scholarship or Distraction?: Paul Caron has a post summarizing the panel discussion on lawpof blogging at the AALS conference this past week. The panelists were Victor Fleischer, Larry Solum, Dennis Patterson, and our own Randy Barnett. I missed the panel, unfortunately, but based on Paul's summary it was a very interesting event.

  UPDATE: Dan Markel offers additional thoughts here, and Dan Solove adds his 2 cents here. And don't miss Christine Hurt's take on gender and blogging here.

Related Posts (on one page):

  1. Blogging and Scholarship:
  2. Lawprof Blogging: Scholarship or Distraction?:
NSA Chief on Legal Issues: Via Reuters:
  The head of the National Security Agency told employees last month that NSA officials had not violated U.S. law by participating in an agency program that eavesdrops on U.S. citizens without judicial oversight, newly released documents show.
  "Media coverage surmises that administration and agency officials may have acted unlawfully — notions I reject, categorically!" NSA Director Lt. Gen. Keith Alexander assured agency employees in a December 22 message.
  He acknowledged that Congress may schedule hearings on the domestic spying program, which President George W. Bush authorized in 2002 to eavesdrop on Americans' telephone calls and e-mails without first obtaining warrants.
  "Overall, we are not concerned," the NSA director said. "Our operations are carefully deliberated and measured; they are within the law; and they are nobly executed with strict oversight."
  UPDATE: The message itself is available here, via EPIC. Thanks to Marcia Hofmann for the link.