Archive | Kerr’s Law

Liberals and Conservatives Switch Positions on NSA Surveillance

A recent Washington Post poll asked, “How concerned are you, if at all, about the collection and use of your personal information by the National Security Agency?” I was interested in the different degree of concern among political liberals and political conservatives. Here are the results among political liberals:

  • 26% very concerned
  • 26% somewhat concerned
  • 26% not too concerned
  • 21% not at all concerned

On the other hand, here are the results among political conservatives:

  • 48% very concerned
  • 29% somewhat concerned
  • 12% not too concerned
  • 9% not at all concerned

It’s an interesting reversal from 2006, when the President was a Republican instead of a Democrat. Back then, a Pew poll found 75% of Republicans approved of NSA surveillance but only 37% of Democrats approved. Granted, there are some differences between what we know the NSA was up to then and now. The polling questions are not identical, and party affiliation is not the same as ideology. Still, it’s an interesting shift. Kerr’s Law in action, I suppose. [...]

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Incrementalism Versus the “Long Game”

There are two additional passages in Adam Liptak’s interview with Justice Ginsburg worth highlighting.  The first describes Chief Justice Roberts’ alleged strategy for shifting the law in a rightward direction.

Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.

The second characterizes Justice Ginsburg’s preferred approach to modifying doctrine over time:

She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

It seems to me that both excerpts describe the same method.  What, after all, is the “long game” other than moving “incrementally and methodically” in a given direction?  Both are fair characterizations of an ideologically oriented minimalism.  Chief Justice Roberts’ minimalism leans to the right, whereas that described by Justice Ginsburg leans to the left — but they are both “miminimalism” just the same.

The real objection to Chief Justice Roberts’ judicial philosophy is not any apparent willingness to move the law , but the direction of the movement.  Put another way, what sparks most progressive criticism of the Roberts Court is not the Court’s alleged “activism” — as it’s not particularly activist — but the Court’s trajectory.  Were the Court working the same way, albeit [...]

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Reactions to the Drone Strike “White Paper”

The release by NBC News of a confidential “white paper” outlining the basis upon which the Obama Administration justifies the use of drones to conduct targeted killings of suspected terrorists, including American citizens, has prompted a substantial amount of commentary — mostly negative. Among other things, critics note the expansive notion of what constitutes an “imminent” threat. So, for instance, the memo provides:

the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

Conor Friedersdorf sees echoes of the early Bush Administration in this rationale (as does Charles at Popehat), and Glenn Greenwald finds it “chilling.” Patterico worries about the slippery slope and Jacob Sullum finds the memo disturbing. But don’t worry. White House spokesman Jay Carney assures us there’s nothing problematic about the administration’s position.

On the academic side of things, Greg McNeal notes “six key points” on the white paper. Kevin Jon Heller comments on the memo’s “confused approach to imminence (and capture)” and its mishandling of al Qaida’s organizational structure.

In the Washington Post Jack Goldsmith argues the white paper highlights the need for a new “rulebook” for the war on terror, preferably a statute debated and adopted by Congress (a step Gerard Magliocca urges as well), and his colleagues at the Lawfare blog have several more posts on the issue.

UPDATE: John Bolton and Senator Lindsey Graham defend the Obama Administration’s use of drones.  According to Bolton, the current policy is a reasonable extension of the Bush Administration’s anti-terror policies. [...]

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Flip-Flops on Executive Privilege

From Charlie Savage’s NYT report on President Obama’s assertion of Executive Privilege as the basis for the Justice Department’s refusal to turn over internal agency documents concerning the “Fast and Furious” scandal to a house oversight committee:

The invocation of executive privilege by Mr. Obama added a new element to the drama. While there is little dispute that the privilege covers communications made directly to the president and among his White House advisers, it is far less clear that the privilege trumps Congress’s right to subpoena internal communications within an agency. . .

A White House spokesman cited several examples of Republican presidents asserting executive privilege to withhold agency documents not involving presidential communications.

Still, Mr. Obama appeared to adopt a narrower view of executive privilege during the 2008 campaign. Then a senator, Mr. Obama was asked by The Boston Globe whether he believed that executive privilege covered documents about decision-making within the executive branch not involving confidential advice communicated to the president.

He replied: “With respect to the ‘core’ of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the president and the White House.”

House Republicans adopted a more limited view of executive privilege as requiring White House involvement, suggesting it was a victory for their side either way.

For more background on recent assertions of Executive Privilege and those few cases in which courts have wrestled with the doctrine, some may be interested in this this CRS report from 2008.

UPDATE: At Monkey Cage, Andrew Rudalevige summarizes the development and use of Executive Privilege in recent administrations.

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Further Confirmation of Kerr’s Law

New polling shows a majority of Americans, and even a majority of self-described liberal Democrats, support drone strikes against suspected terrorists and keeping the Guantanamo Bay detention facility open.  The Advocacy Center for Equality and Democracy comments:

the polling data suggests that a significant number of people who identify as belonging to a political party (a) change their values to conform to the policies of their party, and/or (b) change their values to oppose the leader of the other party. Either is totally inconsistent with a citizen’s role in a democracy.

More here and here.  This is further confirmation of Kerr’s Law (as is much of the opposition to the individual mandate from those who used to support it). [...]

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President Makes Fifteen Recess Appointments

President Obama made fifteen recess appointments today, including two to the National Labor Relations Board and four to the Equal Employment Opportunity Commission. Embattled Justice Department nominee Dawn Johnsen was not on the list.

These were the President’s first recess appointments of his term, and if not confirmed by the Senate, they will be eligible to serve until the end of 2011.  The White House release and full list of recess appointments is here.

Recess appointments have been used with some regularity by prior Presidents in response to Senate confirmation delays.  The Washington Post “Federal Eye” blog reports:

The White House said that 217 of Obama’s nominees still await Senate confirmation, including 34 nominees that have waited for more than six months. By comparison George W. Bush also had made 15 recess appointments by this point in his presidency, the White House said. Bush made at least 171 recess appointments during his presidency while Bill Clinton made 139, according to the Congressional Research Service.

During part of the Bush Administration, Senate Majority Leader Harry Reid would avoid taking full recesses in the Senate to prevent recess appointments from being made.  Not anymore. Back then, Senator Reid maintained that recess appointments were “an end run around the Constitution,” even though the Constitution provides for recess appointments. [...]

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Al Qaeda Seven Unmasked!

It seems that the folks at Fox News have successfully unmasked the Al Qaeda Seven — you know, the terrorist-loving lawyers presently working for the Obama Justice Department. All had their names on the front page of public filings in prominent cases, which is how Fox was able to discover their identities.

As far as I can tell, all seven are prominent appellate lawyers who were at big law firms in DC that participated in the tres chic pro bono project of the Bush era by representing Guantanamo detainees. Interestingly, most are former Supreme Court clerks. (Expected Fox News talking point: So was Alger Hiss.)

Predictable, I suppose. [...]

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