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VC Open Thread:
What's on your mind? Feel free to post away.
John Jenkins (mail):
In the spirit of the thread, First!
1.13.2006 10:41am
M.A. (mail):
I've been mulling over the difference between conservatives who are principled, and conservatives who are just Bush administration shills. (I think the posters on VC fall into the "principled" category, I hasten to add.) It's not that the shills never criticize the Bush administration. (They'll criticize on Miers, or on not bombing Syria, or whatever.) It's that the shills always prefer to turn an issue into Republicans vs. Democrats and use the issue to bash the Democrats.

What does a principled conservative say about the wiretapping issue? He/she explains why Bush is right or wrong. What does the shill do? Talks about why the issue is bad for "the Dems."

What does a principled pro-war conservative say about the low support for the Iraq war? He/she says that it's Bush's responsibility to make a better case for the war. What does the shill do? Blames Cindy Sheehan and/or Democrats for causing the public to turn against the war.

The principled conservative understands that the Republicans are the ones in power, and that there must be serious discussion about the rights and wrongs of what they do. The shill talks as though liberals and Democrats are the ones in power, riding roughshod over the poor defenseless Bush administration.

In a way, the shills are very similar to the hated "MSM," which likes to turn every issue into a partisan, Republicans vs. Democrats issue, even when one of the parties has no power. In other words, instead of discussing the government as it actually currently stands, they discuss everything as a horse race. The fact that the shills are more openly rooting for one side of the race doesn't change the fact that there's functionally no difference between a typical National Review Commentator and a typical CBS reporter: they both talk as if every issue boils down to Republicans vs. Democrats. It's a deeply unserious way to discuss issues.

Note: I am not saying that there are no liberal/Democratic shills, but the Democrats have not had all three branches of government since 1994, so there hasn't been an opportunity to shill for them in the way I'm talking about (that is, discussing two parties as equals even when one of the parties has no power).
1.13.2006 10:42am
Some Guy (mail):
Puppies. I like puppies.
1.13.2006 10:48am
frankcross (mail):
Orin is slacking off and unable to come up with new ideas.
1.13.2006 10:50am
George Gregg (mail):
Opening this thread was very classy, thanks. :)
1.13.2006 10:50am
A.S.:
On the off-hand chance that Eugene (or any of the other Conspirators!) is reading the thread, I wonder if he would tell us his impression of whether the NYTimes could be held liable for publishing the NSA story under 18 USC Section 798:

Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.

(Emphasis added.) Obviously, there are important First Amendment considerations involved in a prosecution of the NYTimes under this statute, and I haven't really dealt with First Amendment issues since second year of law school. On the other hand, since we have a genuine First Amendment expert here, his take might be interesting.

I note that Powerline posted on the subject here.
1.13.2006 10:51am
Commentarian:
Poop.

That is all.
1.13.2006 10:51am
John Jenkins (mail):
I'm not sure I understand what you're getting at, regarding power, M.A. Even when in the minority, the two major parties have enormous power to affect the direction and content of debate (sometimes with an assist from various media outlets). Principled commentary, while interesting, is all but useless. No one reads or cares about it.

Take the NSA program, for example. I think Porf. Kerr is right that we don't know enough about what actually went on to draw conclusions (and I think he's wrong on Article II warmaking powers, but that's another discussion). The simple fact is that many people just don't *care* one way or the other. They either think it's a good idea or a bad idea, irrespective of its legality, and the legality is an irrelevant issue to them.

The "shills" about whom you are writing are speaking to those people, who do not care about justifications or legal niceties and just want someone to agree that it's okay or not okay (whichever way he or she goes). That's just politics in our society. You don't rally your supporters with careful legal reasoning and debate.

That's never been true, to my knowledge, and likely never will be, which is why populism continues to be the predominant political theme (all you ever see are how many people agree with a certain policy, without regard to the merits of the policy). Ideally, these are irrelevant considerations, but as a practical matter, people no longer believe that we elect people to use their best judgement, but that we elect them to effectuate our desires. Once we start believing the latter, people become bitter about the process, because someone will always lose and his or her desires will therefore not be effectuated. I would think that makes the "shills" for the current opposition, whoever they may be at any time, much more shrill and hostile (and I think that's borne out in the current political climate).
1.13.2006 10:52am
Hoosier:
MA--

Well, I'm a conservative of a certain type. I'd say center-right would be the best description. And as much as I dislike much of the foreign policy of the Bush administration, I still am registered as a Republican.

So, with that said, I agree with most of what you have said. But more than that, I confess that the right-wing shills embarass me. Which means that, at heart, I really am a conservative, since I tend to assess whether I'm a member of a group by how embarassed I am when someone in the group does or says something stupid. When a religious zealot like Pat Robertson says something stupid, it doesn't phase me. If Linsaey Graham or Dick Lugar were to have said what Rev. Robertson said, I'd turn several shades of red.

I can't agree that Democratic shills haven't been shilling in the same way. They have to BS about different matters, certainly, since they don't control Congress or the White House. But Eleanore Clift will defend any liberal, any time, anywhere. And I *am* embarassed that Mark Shields has become such a partisan hack in his golden years: We're both Irish Catholic ND grads. So he does reflect badly on "my people."
1.13.2006 10:56am
JimF:
Thanks for asking.

It seems like liberals and conservatives live on different planets, and have different sets of facts to draw upon, making it exceedingly difficult to discuss differences and come to
conclusions that everyone can agree on.
Is there some way that the blogosphere can help better bridge this gap? Or are liberals just irrational?

Good 'blog, by the way.
1.13.2006 11:00am
George Gregg (mail):
frankcross, I'm guessing you're teasing (unless you didn't see the earlier discussion where we'd suggested he make an open thread so that off-topic issues could be broached).

One I'd like to ask about is the ethics of having members of the Judiciary Committee being involved in the coaching of Justice Alito. Am I the only one that strikes as being pretty unethical? Yet the WSJ has reported that Senator Graham has taken part in prepping Alito for the hearings by serving on "moot court" sessions at the White House.

It seems to me that the task of the members of the Judiciary ought to be to honestly evaluate the nominee and that, if they are instead choosing to actively coach him to be able to pass through the process with minimal friction, that's a little troubling to me from an ethics standpoint.

I don't imagine there's anything illegal about this kind of thing, but it does seem that Graham has compromised himself in this way.
1.13.2006 11:01am
Anderson (mail) (www):
Remember the "60-day sentence for child molestation" judge?

I &others were defending him against critics, arguing that the whole story wasn't known, etc.

Well, I saw some more recent news about the case on the Today Show this morning (my wife is a Katie-phile/phobe), and the judge really was a nutjob. Mea culpa!
1.13.2006 11:02am
Hoosier:
Anderson--

Our wives share that characteristic.

I missed the sotry this morning. But my wife and I were holding off to hear more about the story: Was there something in Vt law that bound the judge, and was not being reported? Were there specifics in the case that were being downplayed in order to play up the headline?

I read this judge's respone, and he didn't indicate anything like this. He just thought that this was the prudent thing to do. But I don't want to prejudge the judge. It would make me feel too much like Schumer.
1.13.2006 11:08am
John Jenkins (mail):
GG, so long as a Senator doesn't tell the nominee what to say, I can't see a problem. I liken it to witness preparation for a trial. You take what the witness says he saw, and you go over it with him and try to prepare him for how the opposition will attempt to trip him up.

For the Senators, it's the same thing. "Look, Sen. Kennedy likes to ask questions like this, so be ready, etc." Now, in this case it is more like the judge/jury prepping the witness, so that could be problematic, except that any judge selected will probably have been cleared through your party's members of the judiciary committee anyway so are already committed to voting for him or her.
1.13.2006 11:08am
John Jenkins (mail):
JimF, trust me when I tell you there are plenty of irrational conservatives out there. The wonderful afterglow of postmodern thought gives people cover for absolute attachment to their conceptions without the slightest correspondence with reality (because postmodernism denies truth, therefore correspondence is irrelevant). Everyone is happy with himself or herself, but no one has a clue who is actually right.
1.13.2006 11:12am
Cornellian (mail):
I wonder how the Republican party has managed to pull off 180 degree turns on virtually everything it stood for from 1964 to 1994 and why, given such reversals, it still calls itself "conservative."
1.13.2006 11:14am
Jeff_M (mail):
Do you think it’s time we organized a national constitutional convention? If so, what are the broad subjects we need to address?

I see the lengths to which the commerce clause has been stretched and think it’s reached the point of hypocrisy. Raich would be but one example. If that’s interstate commerce, what isn’t? Are we as a people comfortable winging it and essentially being ruled by the supreme court, or should we make an effort to come to a consensus on what federalism really means for us in the 21st century and try to craft a constitutional amendment to address it.

A skeptic might say it would cause no end of destructive strife, while an optimist might conclude it would focus us on the things that unite us as a people rather than our differences. I’m very interested in what Medis and the many other intelligent people who gather at this blog think about this.
1.13.2006 11:22am
Rich K (mail) (www):
Cornellian, I think it's just a combination of political &populist pandering to moderates and the fact that the Republican party remains the lesser of two evils for conservatives.
1.13.2006 11:24am
PD Shaw (mail):
Illinois is poised to pass legislation banning protests at military funerals. The ban is 300 feet and 30 minutes before and after the service. Is it Constitutional? Note: Some of the protests are not occurring in a military cemetery, but outside public buildings in which memorial services are being held.

And yes, the protestors are the gay-hating Westboro Baptist Church of Topeka, Kan.
1.13.2006 11:35am
Guest2 (mail):
I'm surprised that so far none of the VCers has commented on the recent, apparent confirmation of Roger Coleman's guilt through DNA testing. It's an interesting story.

By way of background: Coleman was executed in Virginia in 1992 for the rape/murder of his sister-in-law in 1982. The case went to SCOTUS on the issue (IIRC) whether missing a filing by one day prevented federal subject-matter jurisdiction. The Court held that it did. A good book about the case is May God Have Mercy, by John Tucker, who clearly believed that Coleman was innocent, as did James McCloskey of Centurion Ministries (a NJ organization that takes on cases of inmates who can show to its satisfaction that they were wrongly convicted).
1.13.2006 11:35am
magoo (mail):
Every judicial nom. hearing starts with pious pronouncements about the need to remained “dignified,” and we’ve now reached such a high level of dignity that family members are forced to flee the hearing room in tears. Shame, shame, shame.

I don't expect the situation to improve the next time a Dem. is in the WH. R's were respectful of Ginsburg and Breyer, but after this debacle, the gloves will be off.

Maybe Biden is right in suggesting we scrap the whole charade.
1.13.2006 11:37am
Hattio (mail):
Anybody else think the real problem with "activist" judges is not at the Supreme Court level, but at the trial court level. How many trial lawyers out there have judges who seem to rule for the same side every time. Always for the state for example.
1.13.2006 11:42am
blackdog:
Here’s what’s been on my mind during the Alito hearings...

For traditional conservative judicial nominees, it seems the confirmation system is broken. Here is why: In the post-Bork era of politicized judicial nominations, interest groups rally their consituents to support or not support a nominee. They bombard senators with information, place ads on television, and write opinion pieces in rabid support or opposition of a nominee. Senators who rely on these groups for support and money are necessarily influenced by their actions.

The problem is that in such a system, traditional conservative nominees (as opposed to “agenda” conservative nominees) have no interest group representing them. In both the Roberts and Alito hearings, who is lined up on the left to oppose them? Groups in favor of expanded civil rights, environmental rights, pro-choice policies, and so forth. Now, these are not necessarily bad things, but traditional judicial conservatives see these as best left to the legislative process, not necessarily the judicial process, which often causes them to issue rulings not in favor of these interests. But this is a hard argument to make in the confirmation process -- serious debates about the role of the federal courts and the scope of federal jurisdiction just don’t “play well” in an era of sound bites and instant news coverage. So there is no “interest group” speaking up for this role. The only ones I can think of are the ABA’s rating system (which isn’t really the same; there’s no advertising push around this, unless it’s done by the conservative groups described below, whose positions color their communication of the facts) and, well, Article III judges themselves -- who get criticized when they vouch for a nominee (see Alito hearings) and, regardless, aren’t equivalent to a modern-day interest group in terms of advertising, legislative influence, etc.

So who do traditional conservative nominees have as “their” interest groups backing them during the process? Generally, far-right groups that are centered on conservative social policies. This presents three problems: first, this causes many traditional conservatives (whether traditional in the judicial sense or perhaps libertarian in the policy sense) to go “ick.” I know it does for me, as I think many of those groups’ positions are not well thought out and don’t representive classical conservatism. Second, it causes many moderates or moderate-liberals who would otherwise be inclined to favor the nominee to reduce their support, because they think, “Well, if X group of fanatics is in favor of him, he’s got to be bad, because I hate X group.” (Or, if they don't think this, they are told this by the above liberal interest groups, which is an effective rhetorical device.) And third, these groups are often the ones arguing for precedents to be outright overturned (Roe, Lawrence, etc.), which puts the nominee in the uncomfortable position of being asked, point-blank, if he supports those decisions or the rights underlying them -- requiring the nominee to defend decisions that may have flaws from a judicial standpoint (as Roe and Lawrence have often been accused of) but which flaws the nominee cannot point out, because it will be taken as a policy stance against the outcomes of those decisions.

So traditional conservative nominees -- meaning, those judges who take a more limited role of the courts in our governmental system, and not those judges who really do want to advance a conservative policy agenda -- have nobody to speak for them. They want to resist the positions of the liberal groups, because those groups view the federal courts as a means to effect changes that couldn’t be gained through the legislative process, which traditional judicial conservatives don't agree with (even if they might very much agree with the policy positions of those groups, i.e., if it were put to a legislative vote). But if they do so, they are (1) accused of being anti-woman, anti-minority, anti-environment, etc.; and (2) assumed to be in league with the groups that do support his nomination -- i.e., the far-right groups. But a traditional conservative isn’t in favor of any of these groups, precisely because he/she does not view the courts as favoring any particular outcome. And yet nobody can really get behind this position, because it’s not a policy position that generates passion for any one side. Instead, the nominee must engage in a silly Kabuki show wherein senators bloviate for half an hour, the nominee gives five minutes of answers to either softball questions (Republicans) or ludicrous accusations (Democrats), and each Senator votes largely according to his policy preferences.

Suppose in 2009 a Democratic president nominates a judge for a SCT spot, and the Senate has the same party breakdown it has now. Here, the system works in favor of the nominee. Presumably, the nominee will have issued rulings generally (but not always, of course) favoring pro-choice positions, civil rights, expanded standing, and so forth. Except for those several senators who choose to oppose the nominee on pure policy, results-oriented grounds -- abortion, for example (e.g. Brownback) -- on what other grounds could a senator oppose the nominee? Is any senator, who is in the business of making policy decisions, ever going to say, “Judge X, even though your rulings expand rights for many groups, you and I have different views of the role of courts, so I’m going to vote against you”? Not likely. The only other way senators could mount opposition to such a nominee is if the nominee had issued so many out-of-left-field rulings that he/she was considered to be “activist” (sorry for using that overused word).

I realize some of you must be saying, “If the system is broken for traditional conservative nominees, why are two of them about to have been recently confirmed?” My point is that they were dragged through the mud en route to being confirmed -- character accusations, misrepresentation of decisions, and so forth -- and, more importantly, had no interest group, in this age where interest groups dictate the course of these silly proceedings, to represent the positions they most likely stood for. Instead, they were stuck between two sides of interest groups, neither of which they probably cared for, who did all the talking for them, not only politicizing the process but doing so in a manner that disserves the nominee's actual views. Yes, the nominee does get an opportunity to state his actual views at the hearings, but by that point, two months of interest group activity has already laid the groundwork for much of the senators' decisionmaking processes.
1.13.2006 11:42am
Just an Observer:
I would like to note the juxtaposition in today's NYT analysis by Adam Liptak of the views expressed by Judge Alito in his hearings and those propounded by John Yoo:


Senator Joseph R. Biden Jr., Democrat of Delaware, asked Judge Alito on Thursday whether he shared the aggressive views of executive power discussed in a recent book by John Yoo, an architect and forceful advocate of the Bush administration's legal strategy in the aftermath of the Sept. 11 attacks. Judge Alito said he had not read the book, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." But some of Judge Alito's answers suggested that he would not take as hard a line as Professor Yoo, who now teaches law at the University of California, Berkeley.

Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority.

The president's power is at its "lowest ebb," Justice Jackson wrote, when Congress has forbidden a particular action. The administration has conceded that its domestic surveillance program violated the terms of a 1978 law requiring court approval for some intelligence gathering, arguing that it had authority to conduct the surveillance without warrants under both the Constitution and a Sept. 18, 2001, Congressional authorization to use military force.

In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.

"The Jackson concurrence applies to domestic matters which are outside the theater of combat," he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.

Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.

"It's very striking," Professor Feldman said, "that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson's concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can't embrace the strongest version of the unitary executive theory."


The good news for Alito's nomination is that he was able to disassociate himself from Yoo's radical position.

The bad news for the Bush administration is that Alito did disassociate himself from Yoo's radical position.
1.13.2006 11:45am
Anonymously Bored:
Constitutional law is nothing but the history of Supreme Court decisions and it all boils down to the rule of 5, and all 9 are political picks.

So, at rock-bottom, it's all politics.

Duh!
1.13.2006 11:49am
John Jenkins (mail):
I'd be interested to know what Prof. Kerr thinks of this use of satellites to catch farmers defrauding the federal government. To me it looks like a straight open fields analysis as in Dow Chemical, but I wonder if he has a different view.
1.13.2006 11:50am
Marcus1:
I'm posting less here because I started a new blog, where I can be annoying about the lack of respect for atheists on my own terms.
1.13.2006 11:51am
Marcus1 (www):
But I guess I'm still learning how to link.
1.13.2006 11:54am
mel_b (mail):
I know that some of the conspirators are former engineers and/or computer scientists. I am thus somewhat surprised that there are rarely any posts regarding issues of intellectual property. IP issues don't get as many headlines, but in many ways they are as important as any of the more "hot button" issues. Patent kids like myself would appreciate more posts in this direction.
1.13.2006 11:59am
dgm (www):
Did anyone else think that, at least on some portions of the televised confirmation hearings, Judge Alito bore a resemblance to former USD law school dean Dan Rodriguez?

That's been on my mind.
1.13.2006 12:01pm
Cathy:
How the female students at GW law loved to dream about a certain Criminal Law professor. The bow ties. Hunky in an adorable nerdy way.
1.13.2006 12:07pm
Wince and Nod (mail) (www):
I'd like to see the Congress authorize the President to respond with massive nuclear retaliation to any country or countries who participate in a first nuclear strike on another nation. I'd also like to see the red telephone system we had with the Soviets broadened to include all nations with nuclear arms. Discuss?

Yours,
Wince
1.13.2006 12:09pm
adam Scales (mail):
Blackdog,

Excellent and insightful post. Thanks.
1.13.2006 12:09pm
Cornellian (mail):
I'm surprised that so far none of the VCers has commented on the recent, apparent confirmation of Roger Coleman's guilt through DNA testing. It's an interesting story.

I did see that story but didn't have anything to say about it, though I was amused to see one of the guys who had championed his innocence say something along the lines of "oops, boy do I feel bad." Next time pick your convicted murderers more carefully. That guy apparently had a very mild appearance and manner of speaking, and was relatively well educated so it was easy for him to present a non-threatening image to the public as part of his campaign to convince them of his innocence.

My other favorite recent legal story was that Stanford law prof (and former Dean) Kathleen Sullivan failed the California bar exam. I know nothing about her and I'm sure she's very smart and this probably makes me a bad, bad person, but somehow I just loved that story. Prof. Bainbridge, a UCLA prof, said he would never take the California bar exam because he was too "chicken" (his word) that he might fail and couldn't take the ribbing he'd get from his students and colleagues. I suppose then that Sullivan has to be given credit for having the guts to take that risk.
1.13.2006 12:10pm
Tflan (mail):
Forgetting about Roe for a minute, a good part of the hearings can be viewed as the Congress trying to make sure the nominee will be extremely deferential to their views but not give the same sort of deference to the President views. I guess this can be viewed as normal branch jockeying, but it struck me as odd when they asked Judge Alitio several times whether the President was above the Const., but also asked several times whether the Courts were in the postion to disagree with express Congressional findings - essentially placing the Legislature above the Const. For if the Court is not competent, in most cases, to substitutes its judgment of what is Const., then we get the horrendous decisions which hold that something which is not commerce and is not even interstate is somehow within the purview of Congress.
1.13.2006 12:12pm
Cornellian (mail):
Oh and another thing, only tangentially legal. I saw "Capote" recently, a movie about how Truman Capote came to write "In Cold Blood", the story of a murder of a family in rural Kansas, and the conviction and execution of the two men responsible. Great movie.
1.13.2006 12:12pm
minnie:
Orin and Eugene,

I would like to ask you a question. A lawyer testified just now named Mr. Flym who said a lot of extraordinary things about the Vanguard case, which, up until now, I had thought was a non-issue dragged in solely for partisan reasons.

But if what Mr. Flym said was true, Alito is a big time liar with a serious lapse of ethics.

So, who is telling the truth? Mr. Flym said that according to the 1974 law which dictates which financial situations apply when judges are weighing whether to recuse themselves, an investment in a mutual fund is an automatic reason for recusal. He states that Orin Hatch, Alito and all the rest who have addressed this issue have misstated the law. He maintains that although a judge does not have to recuse himself if one of the companies in which a mutual fund invests is involved, an investment in the mutual fund itself is grounds for recusal.

Orin Hatch then, rather unconvincingly, I thought, reiterated his position. This becomes a very large issue not only because of the obvious points, but also because if Mr. Flym (who is the lawyer for the plaintiff in that Vanguard case and presumably knows the law quite well)is right, then the American Bar Association who looked into that issue was completely wrong also. As you know, Alito said many times that he CHOSE to recuse himself even though he did not have to according to the law because he wanted to maintain a higher ethical standard than was required.

Who is right on this point?

Thank you.

PS. I hope everyone got to hear the testimonies of the panel who was on this morning. They were staggeringly impressive and by far the most interesting thing that has happened in these hearings.
1.13.2006 12:12pm
Cornellian (mail):
Re the confirmation process, is it really broken if some of the Senators are mean and nasty to a nominee, don't play by Marquess of Queensberry rules in the nomination process, but the nominee still gets confirmed? Given that Roberts was confirmed and Alito probably will be confirmed, I think concluding that the confirmation process is broken is unwarranted. And Bork didn't deserve to be confirmed.
1.13.2006 12:14pm
Bob Bobstein (mail):
I think concluding that the confirmation process is broken is unwarranted.

Well, I think that the hearings might merit ditching, just because the nominee tries to avoid saying anything, and senators talk themselves silly.

Seriously, did we learn anything at all about Alito's jurisprudence over the last few days? He'll keep an open mind when deciding cases. Hey, so would I, put me on the Court.

I admit the possibility that I'm relying too much on the second-hand descriptions of what's going on, and if I'd been watching more closely I'd have seen some great discussions about constitutional law.
1.13.2006 12:19pm
Bob Bobstein (mail):
What's on your mind? Feel free to post away.

I'm thinking, Pats 24 Broncos 17.
1.13.2006 12:20pm
Houston Lawyer:
I would like commentary on whether the Texans should select Reggie Bush or Vince Young. I'd prefer Vince, but I'm not sure whether his style of play will work in the pros.

And how many of your offices will be closed for MLK day this year? Seems to me that more large law firms are closing even though most other businesses will be open.
1.13.2006 12:22pm
Nunzio (mail):
Today's Friday the 13th. Why is it only when the 13th's on a Friday that it's considered unlucky?
1.13.2006 12:22pm
Pius XXX:
Upon returning from break, I found my NYC law school locker vandalized once again. This is the third time that my Bush-Cheney campaign bumper sticker has been ripped off, whereas all other such postings, including Kerry and anti-GOP stickers were left intact. Now I must find a fourth - because if I allow them to rip it off without reposting it, the terrorists will have won. Somebody tell me - what kind of mode of expression is it to take down other people's stuff?!
1.13.2006 12:25pm
Cornellian (mail):
Today's Friday the 13th. Why is it only when the 13th's on a Friday that it's considered unlucky?

And on a semi-related point, why do the Brits use the term "fortnight" when we don't? Why is that term missing from the American vocabulary?
1.13.2006 12:26pm
Nunzio (mail):
Houston Lawyer,

Reggie Bush. Probably the best college running back since Barry Sanders with skills that should make him outstanding in the NFL. Vince Young should be a good player in the NFL, but it's harder to tell with quarterbacks if they'll pan out.

I also agree with your MLK observation.
1.13.2006 12:27pm
Gene Vilensky (mail) (www):
A question for the legal eagles on this thread. I'm not a lawyer and if this has been discussed elsewhere, I apologize. Here is a question that I had about the NSA surveillance program:

I was wondering about the following scenario. Suppose al Qaeda terrorists A and B, fighting American soldiers on the Afghan-Pakistan border (though in physically different locations), trying to protect OBL, decide to communicate on the battlefield in the following manner.

There is an al Qaeda sleeper cell somewhere in America with al Qaeda terrorist C. A decides to call C and B calls C on a different line. So, C now has two phones, one with A on the line and the other with B on the line. Then, he turns on the speakerphone on both phones and thereby allows A and B to communicate in this manner. Does that mean that before the US can intercept and monitor such a phone call, they would need to obtain a FISA warrant? Does this even apply if American intelligence on the ground in Afghanistan realize that this is happening but do not know who the specific parties in the conversation are? It seems, then, that AUMF and the President's inherent commander-in-chief powers super-cede FISA in this case, since FISA would be intruding on his Constitutional power to conduct military affairs. Am I missing something here?

So, in that case, the US should be able to monitor communications, warrant-free, involving a "US person" (FISA language not mine). While some differing details are coming out now, if what Bush claims the NSA program was (i.e. interceptions of communications between al Qaeda and "US person") is actually what it was, then wouldn't any reasonable view of the relationship of C-i-C powers have to account for the scenario I laid out above?

I would be interested to see if anyone could give a quick stab at this.
1.13.2006 12:30pm
troubled this morning:
I'm trying to figure out why Ted Kennedy repulses me so much.

I think that if you're responsible for the death of an innocent person, you longer have the right to criticize other people on moral grounds or to demand anything from society. It's as if everyone has been given one life to which he's entitled. If one inflicts one life worth of damage on the rest of the world, his debt is greater than his worth, and his life is therefore worthless. I.e. it's a shame that if Osama bin Laden is captured he could only be killed once. Any respect that anyone gives TK after Chappaquiddick is a gift, not an entitlement. As such, I'd expect him to show some humility, keep his head down, do his job and fade quietly into the background.

Instead, he's the worst of the Democrats for criticizing other on moral grounds. He throws the most stones and lives in the most glass-like house, and I think he deserves nothing less than to have someone pull him into a car, drive off of a bridge and leave him for dead. Every time he appears in the news, this image comes to mind, and I can't get it out of my head. I don't have this sort of visceral response to anyone else. Biden, Leahy, Schumer, Feinstein, et al., strike me as people with certain moral convictions trying to do their jobs (somewhat ineffectively and with some misunderstanding of what judges actually do, but still making an honest effort). The Republicans strike me more or less the same way -- they have certain moral convictions that make them act as shills for Bush, but because they believe in them. The Democrats are entitled to criticize, the Republicans are entitled to rebut, but Ted Kennedy needs to sit down and think about the person he left for dead.
1.13.2006 12:30pm
John Jenkins (mail):
Minnie, don't you think it says something that the person to whom you're referring was opposing counsel who lost the case? Also, doesn't it reveal something of a personal bias when the "most impressive" group is the one you agree with as opposed to, say, the group of sitting federal judges?

At any rate, the applicable statute is 28 U.S.C. § 455, which reads
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.


(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has
been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.


(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the
organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.


(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
Of particular interest is paragrapg (d)(4)(i) which provides, "Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund."

I'm not sure what Mr. Flym was driving at, but it is absolutely clear that ownership of shares in a mutual fund is not a financial interest in the company that manages the fund for rather obvious reasons. It seems that Mr. Flym is misstating the law or, to be more charitable, between his saying it and you transcribing it, something is amiss. Given his interests, I'd guess you have it right and he has it wrong.
1.13.2006 12:31pm
margate (mail):
Magoo --

Say what you want about this hearing being a bare-knuckles display by Dems, compared to the Repubs treatment of Ginsburg and Breyer. [And I do enjoy when Republican Senators say, in substance, "we approved Ginsburg even though she was general counsel to that Pinko Commie Gay-rights promoting organization, the ACLU -- gag."]

But remember this fact, which not a single Republican Senator before or during the Roberts or Alito hearings ever acknowledged:

CLINTON CONSULTED HATCH ON WHOM TO NOMINATE -- AND PICKED TWO PEOPLE WHOM HATCH SAID WOULD SAIL THROUGH. And so they did.

Bush consulted no Democrats in the same manner. 'Cause Bush lives by what amounts to the "Rule of 5" for politicians.

And that's fine. I have no problem with it.

But before blowing a gasket, remember *why* the Republicans handled the hearings on RBG and SB the way they did.
1.13.2006 12:34pm
VC Reader:

but the Democrats have not had all three branches of government since 1994, so there hasn't been an opportunity to shill for them in the way I'm talking about

I could be wrong about this, but I seem to remember a Democrat executive branch somewhere in there, I believe around 1992-2000. You know, that guy they call "Slick Willy." And the judiciary is pretty evenly split at the moment (which, btw, is more than just SCOTUS, especially since those hot shot slackers take less than 100 cases a year). Anyway, with SCOTUS commentators racing to be the first to declare the end of the Rehnquist Revolution, one would be hard pressed to say that the last few years have been full of originalist victories.
1.13.2006 12:39pm
Cornellian (mail):
OK, here's an actual legal thought.

Original intent versus original outcomes. Let's suppose the 14th Amendment provides a rational basis test for evaluating gender based classifications (this works with intermediate scrutiny as well but I want to avoid arguments about whether the 14th Am really does provide for intermediate scrutiny). Let's suppose a state statute enacted shortly before the 14th Amendment prohibits women from practicing law, the rationale being that women are physically unsuited to the demands of the legal profession. Let's suppose that, shortly after the 14th Amendment is enacted, the Supreme Court accepts this rationale as a "rational basis" and upholds the statute from a 14th Amendment challenge. All of the SCOTUS members at the time were on the Court (or at least practicing law) at the time of the proposal and enactment of the 14th Amendment. Now supposing the same statute is the subject of a 14th Amendment challenge today and assume there is no federal statutory law that applies to this situation. Is SCOTUS bound to uphold the statute on an originalist view? Would stating that the original rationale, that women were physically unsuited to practicing law, was simply wrong as a factual matter and therefore the statute fails the rational basis test be a departure from original intent? If not, is the slogan "the framers would never have imagined that the Constitution prohibited X", so often heard in criticizing "activist" courts really all that conclusive from an originalist position? If "original intent" means "original outcome" then clearly the statute must be upheld, as it was at the time by people all of whom were perfectly familiar with the original understanding of the 14th Amendment. If "original intent" means something else, however, then "the Framers would never have concluded that statute X violates the Constitution" would not, even if true, be a conclusive originalist argument against the constitutionality of the statute.
1.13.2006 12:39pm
Iowegian:

magoo: Maybe Biden is right in suggesting we scrap the whole charade.

Biden's Princeton foot-in-mouth performance is one of the chief reasons this particular hearing is so ludicrous. scrapping the process because politicians are infantile does not seem very wise.
1.13.2006 12:47pm
nc_litigator (mail):
Upon returning from break, I found my NYC law school locker vandalized once again. This is the third time that my Bush-Cheney campaign bumper sticker has been ripped off, whereas all other such postings, including Kerry and anti-GOP stickers were left intact. Now I must find a fourth - because if I allow them to rip it off without reposting it, the terrorists will have won. Somebody tell me - what kind of mode of expression is it to take down other people's stuff?!

I'm no Bushie, but that sucks. Do they barricade federalist society meetings at NYU Law too? I get irritated by those "W" bumper stickers, but i'm sure republicans don't like the "W-orst President Ever" ones.
1.13.2006 12:47pm
Matt Barr (mail) (www):
Margate: You're absolutely right, and I think a consultaion would have been useful. But is Sam Alito really the kind of judge Democrats would have honestly said, if asked in advance, wouldn't be acceptable? We don't really need to guess, we can see the type of judges filibustered during the Bush administration. Is he of that stripe, as red meat to the right as Brown, or Owen, or Pryor?

Which gets to the fact that regardless of how he got there, he's there. Is there any reason why, once the name was put forward, the Senate should have rejected either Ginsburg or Alito, on the merits?

I recognize answers to both questions may differ, but I think the answers no, he wouldn't have been unacceptable and no, there's no more reason to reject him than there was Ginsburg are reasonable answers, and ones a great many observers of this process would give. So I think the point about comparing the time of it each had before the committee is a legitimate one, still.
1.13.2006 12:51pm
Cornellian (mail):
The problem is that in such a system, traditional conservative nominees (as opposed to “agenda” conservative nominees) have no interest group representing them. In both the Roberts and Alito hearings, who is lined up on the left to oppose them? Groups in favor of expanded civil rights, environmental rights, pro-choice policies, and so forth. Now, these are not necessarily bad things, but traditional judicial conservatives see these as best left to the legislative process, not necessarily the judicial process, which often causes them to issue rulings not in favor of these interests. But this is a hard argument to make in the confirmation process -- serious debates about the role of the federal courts and the scope of federal jurisdiction just don’t “play well” in an era of sound bites and instant news coverage. So there is no “interest group” speaking up for this role.

This strikes me as naive. Any given position on an issue will be more favorable to some groups and less favorable to others and the groups that will favor your position are the groups that anticipate being favored by your positions. If you, for example, believe the Violence Against Women Act (authorizing civil actions for gender based violence) is unconstitutional as being beyond the scope of the Commerce Clause then your position is relatively less favorable to women than someone who takes the opposite view and relatively more favorable towards people who would likely have been defendants in such actions, not just perpetrators of such violence, but also employers and property owners who might be said to have negligently allowed such violence to occur. Thus, if you're a business, you don't like the Violance Against Women Act and you'll tend to favor a nominee who thinks it's unconstitutional. You're part of the "interest group" for that nominee.

Note that none of the above depends in any way on the correctness of any particular position. The above reasoning works perfectly well even if the nominee's position is exactly correct as a matter of constitutional law and exactly in accordance with original understanding or whatever other constitutional theory one prefers. Interest groups support a particular nominee because they anticipate favorable results, not because they've made the additional inference that such favorable result really are, or really are not, in accordance with the Constitution.

And so your hypothetical non-agenda conservative nominee will have plenty of support, just look at the groups that are likely to be favored by his decisions.
1.13.2006 12:51pm
Matt Barr (mail) (www):
Cornellian: The problem with the hypothetical is that there's simply no way to escape the fact that that law would have been democratically repealed by now. That's not a punt, it goes to what we should do with dumb laws in this country: repeal them or get them struck down by judges. All things being equal I'd rather they were repealed.

Playing by your rules, though, I think as counterintuitive and frustrating as it is, the originalist view would be that the people who ratified and then had to implement the amendment would surely have changed whatever law they thought didn't square with it, and if they didn't that's powerful evidence the law doesn't violate the amendment. If it were as simple as an if/then test, of course, any monkey could be a lawyer or a judge, but I think that's the answer to your question.
1.13.2006 12:57pm
Bob Bobstein (mail):
Matt Barr: We don't really need to guess, we can see the type of judges filibustered during the Bush administration.

The standards used by Dems to filibuster are likely different for a SC nominee, who is not bound by SC precedent.

Is there any reason why, once the name was put forward, the Senate should have rejected either Ginsburg or Alito, on the merits?

He will have a jurisprudential view that Dems disagree with, which will lead to policy outcomes that they disagree with, so they will try to prevent him from sitting on the Court.
1.13.2006 12:58pm
nc_litigator (mail):
There is an al Qaeda sleeper cell somewhere in America with al Qaeda terrorist C. A decides to call C and B calls C on a different line. So, C now has two phones, one with A on the line and the other with B on the line. Then, he turns on the speakerphone on both phones and thereby allows A and B to communicate in this manner. Does that mean that before the US can intercept and monitor such a phone call, they would need to obtain a FISA warrant?

Gene, you may not be a lawyer, but you might consider a career writing law school exams. I guess the Govt would argue C is just a "switchboard", and the actual call is between two persons in Afghanistan not entitled to Constitutional protections.
1.13.2006 12:59pm
Bob Bobstein (mail):
More for Matt Barr-- Ginsburg is not as liberal as Alito is conservative-- that's why she was recommended by Hatch in the first place.


According to a Legal Times study of voting patterns on the appeals court in 1987, for instance, Ginsburg sided more often with Republican-appointed judges than with those chosen by Democrats. In cases that divided the court, she joined most often with then-Judge Kenneth W. Starr and Reagan appointee Laurence H. Silberman; in split cases, she agreed 85 percent of the time with then-Judge Robert H. Bork -- compared with just 38 percent of the time with her fellow Carter appointee, Patricia M. Wald.

By contrast, University of Chicago law professor Cass Sunstein found that Alito, in the overwhelming majority of cases in which he dissented, took a more conservative stance than his colleagues.
1.13.2006 1:02pm
Cornellian (mail):
Cornellian: The problem with the hypothetical is that there's simply no way to escape the fact that that law would have been democratically repealed by now. That's not a punt, it goes to what we should do with dumb laws in this country: repeal them or get them struck down by judges. All things being equal I'd rather they were repealed.


It's a punt and just evading the hypothetical. There are plenty of dumb old statutes around that would never be enacted today. The willingness to enforce them gradually fades away but they remain on the books. Have you seen any movement to re-enact the statute struck down in Lawrence v. Texas? Any Senator (Dem or Rep) questioning Roberts or Alito about his views on the subject? Any movement by Dobson et al to enact a constitutional amendment reinstating such statutes? Anyone condemning Clarence Thomas for describing the statute as a "damn silly law?"

Would you argue that "original intent" includes the original factual assumptions behind the outcome, even if those factual assumptions are later shown to be wrong?
1.13.2006 1:05pm
Just an Observer:
Gene Vilensky,

In your hypothetical, if the calls are intercepted outside the United States, then FISA probably does not apply.

If the calls are intercepted in the United States, that is a different situation. FISA was enacted to regulate surveillance of foreign powers and their agents in the United States, which seems to be what your hypothetical describes.

That does not mean the surveillance could not be done; it does mean that the provisions of the law apply.

Since you postulate that "American intelligence on the ground in Afghanistan realize that this is happening" and that the parties there are on the battlefield, this seems to me like probable cause that the party in the United States is an agent of a foreign power.

You hypothetical involving a remote battlefield seems rather far-fetched to me. The scenario more commonly described by the Bush administration involves suspected agents in the United States plotting to do harm here.

The same law during the Cold War would have applied to surveillance of Soviet officers communicating through an agent in the United States, for example, and the same definitions would have controlled.
1.13.2006 1:05pm
John Jenkins (mail):
BB, I think you would have to rephrase that to, Ginsburg was not as openly liberal before nomination to the Supreme Court as Alito is openly conservative. She is *very much* as liberal as Alito is conservative.
1.13.2006 1:09pm
Gene Vilensky (mail) (www):
Sure, Clinton consulted with Hatch. But the question is, did Hatch respond in good faith and did the Democrats when Bush consulted them. Hatch suggested two lawyers very much qualified and solidly on the left when he suggested Breyer and Ginsburg. When Bush asked Harry Reid who to nominate, he suggested Harriet Miers. This seems to indicate that the Democrats were not making suggestions in good faith because Miers is wholly unqualified (I don't even care about her substantive views at this point) and he knew that. I also heard that they had suggested Edward Prado and Arlen Specter who are not even particularly conservative. They rejected any mainstream judicial conservative candidate. The only one I recall Hatch having problems with was Bruce Babbitt. And I think he ended up having some ethical issues himself.

I mean, come on. Imagine if Clinton had asked Hatch who to nominate for the SC and Hatch replied with Johnny Cochran and Zell Miller. Because many of Reid and Schumer's suggestions were along those lines.
1.13.2006 1:12pm
Jimmy (mail):
Houston Lawyer,

As someone who's watched every game Vince Young played, not picking Vince would be a Sam Bowie-esque mistake for the Texans.
1.13.2006 1:19pm
Pete Freans (mail):
Boston sports fans-once the earthy, blue-collar underdogs everyone enjoyed-are annoying. I wish the following for the new year:

1. The Patriots are bounced out of the playoffs early and decisively,
2. Johnny Damon and the Yanks dispose of the Sox early and often,
3. The Bruins stay in the basement,
4. Sen. Ted Kennedy pays for the Big Dig out of his family's pockets.

Thank you for this opportunity of irrelevant rant.
1.13.2006 1:32pm
Tflan (mail):
Domanick is a good enough RB to skip Bush. Plus they just signed him to a long term deal in 8-05. Unless they plan to trade him, stick with a QB. Also, Carr will be a free agent in 06, so they need to fill that position soon. They can draft a QB and sign a vet to fill in, or simply throw Young in the mix and see what happens.
1.13.2006 1:43pm
Matt Barr (mail) (www):
There are plenty of dumb old statutes around that would never be enacted today. The willingness to enforce them gradually fades away but they remain on the books.

Among them would never, ever be one that prohibited women from practicing law. You spend a lot of pixels telling me I'm avoiding the question, when I went on to answer it on your terms. The answer to your question about factual assumptions is the same: If factual assumptions turn out to be wrong, which surely one assuming women can't handle the physical rigors (snicker) of law practice would be, then the law should be repealed. If a court gets it before it is repealed, the answer is that the Constitution of the United States does not forbid states from enacting stupid laws based on factual inaccuracies.
1.13.2006 1:46pm
therut (mail):
I think congressional power needs to be decreased under the Commerce Clause. The USSC gave them unconstitutional power and an honest USSC needs to take it away. I'm more worried about congressional power than I am Presidental power. Though I'm for decreasing almost any Governmental power. That is why I'm a conservative. The Liberals want a little here and a lot there depending on if the outcome is to their liking.
1.13.2006 1:49pm
JosephSlater (mail):
Since some folks are talking sports, I'll say that as a non-bandwagon, 20+ year fan of the Detroit Pistons, I really like the way they are playing this year.

As to law, I thought Randy B. (a Conspirator) and Cass S. did an excellent, excellent job at the AALS "Constitution in Exile" panel. I don't think David B.'s criticisms of Cass in another part of this blog were entirely accurate. But more importantly, congrats to both Randy and Cass for putting on such a high-level, stimulating debate.
1.13.2006 1:49pm
ctw (mail):
in addressing doe v. groody, alito critics have routinely played the emotional theme of the "ten year old girl", whereas (according to my lay reading) in neither the opinion nor the dissent does the age/sex of the daughter play any substantive role. notwithstanding being left-center and suspicious of anyone enthusiastically embraced by current "conservatives", I value honesty and integrity and have complained in several forums about this behavior.

in the case of the legally ignorant, partisan hacks, and politicians (not meaning to suggest that these are non-intersecting sets), while not approving of the behavior, I understand it. but then come's prof chemerinsky (on a panel this AM) pulling the same shenanigan. since I extend the definition of "lying" to include "intentionally causing a listener to believe something that one knows in reality to be untrue", ...well, it's too painful to complete re such a prestigious person.

serious question for the knowledgable (ie, spare me mindless liberal-bashing snarks): am I missing a subtlety in the opinion, misunderstanding or overstating the significance of prof C's allusion, or is almost everyone willing to pursue partisan hackery even at the cost of possible damage to a distinguished reputation?
1.13.2006 1:49pm
Matt Barr (mail) (www):
[Alito] will have a jurisprudential view that Dems disagree with, which will lead to policy outcomes that they disagree with, so they will try to prevent him from sitting on the Court.

I'm sure that's exactly true, but should it be? Even if Democrats held a majority of the Senate? I suppose maybe it is, and Senators should actively campaign against (not just vote against) obviously qualified judges whose judicial philosophy they don't like, but there are soft costs. What in the aggregate is the American public's view of Clarence Thomas as a judge? He's done well, superbly last term, I thought, but his reputation took a hit from which he's not likely to recover no matter how well he does on the Court. Do we eventually want nine Justices like that, half the country thinking any one of them is some kind of monster or boob?

The World's Greatest Deliberative Body™ should concern itself at least a little bit with making sure the public's behind the Court when it does its business. Hearings like this don't help. This isn't even to mention the fact it's got to dissuade outstanding jurists from wanting the job.
1.13.2006 1:53pm
aggiesq:
Vince Young vs. Reggie Bush for the Texans:

They'd be silly to take Young. They have a QB - David Carr - and without improving their O-line it won't help matters to stick another QB back there (of course, Young is more mobile than Carr, but that alone won't win a Super Bowl; ask Mike Vick).

On the other hand, Bush is the best runner from college in a very long time (maybe ever), with the potential to get into the Faulk/Sayers category. You simply cannot pass up that kind of talent.

Young would deserve #1 pick (if ever) only if a QB needy team was darfting first, Saints for example.

And if you saw every game Young played this year, then you saw OSU defend him well, and you saw A&M do likewise with a horrible secondary. Arguably the A&M game, plus Bush's Fresno State million yard performance, cost Young the Hesiman.
1.13.2006 2:04pm
Cornellian (mail):
Among them would never, ever be one that prohibited women from practicing law. You spend a lot of pixels telling me I'm avoiding the question, when I went on to answer it on your terms. The answer to your question about factual assumptions is the same: If factual assumptions turn out to be wrong, which surely one assuming women can't handle the physical rigors (snicker) of law practice would be, then the law should be repealed. If a court gets it before it is repealed, the answer is that the Constitution of the United States does not forbid states from enacting stupid laws based on factual inaccuracies.

So a Supreme Court decision crystallizes for all time, not just a particular interpretation, but also the factual conclusions it reached en route to that decision? I recall there being a Pennsylvania statute that prohibited women from working after sundown (no similar prohibition for men) that was around as late as the 1960's so I can make my hypo a great deal more plausible just by adjusting the time frame slightly.

How about the Virginia statute that prohbited inter-racial marriage in Loving v. Virginia. That statute was very popular at the time and there would have been zero prospects of the Virginia legislature to repeal it. Suppose an earlier decision had upheld the statute on the grounds that interracial marriages were very likely to result in sterile children (a view put forward by some at the time). By the 1950's we know this factual assertion to be wrong. Does original intent compel the same result as the earlier decision even though the factual assumption on which it was based is no known to be wrong? Saying that it's a dumb statute and the legislature should repeal it doesn't answer the question of whether the statute is unconstitutional or whether "original intent" includes facts believed to be true at the time but now known to be wrong.
1.13.2006 2:07pm
Cornellian (mail):
The answer to your question about factual assumptions is the same: If factual assumptions turn out to be wrong, which surely one assuming women can't handle the physical rigors (snicker) of law practice would be, then the law should be repealed. If a court gets it before it is repealed, the answer is that the Constitution of the United States does not forbid states from enacting stupid laws based on factual inaccuracies.

My original premise was that, in fact, the 14th Amendment does prohibit legislative classifications that fail the rational basis test (do you dispute this?) and if the only basis for a statute is conceded to be a particular factual assumption and that factual assumption is condeded to be false, not "reasonable grounds for thinking it's true but we're not really sure", but flat out, admittedly false, then presumably such statute will fail on a rational basis test. Do you disagree with that?
1.13.2006 2:11pm
Bob Loblaw (www):

Of particular interest is paragrapg (d)(4)(i) which provides, "Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund."

I'm not sure what Mr. Flym was driving at, but it is absolutely clear that ownership of shares in a mutual fund is not a financial interest in the company that manages the fund for rather obvious reasons.
I don't think this section applies to the Vanguard situation. The section refers to whether owning a mutual fund which holds shares in a certain company - say Microsoft - constitutes a financial interest in Microsoft. With Vanguard, the question is whether owning a Vanguard mutual fund requires recusal when Vanguard (rather than Microsoft) is a party. I don't necessarily think it should (since a decision affecting Vanguard would not affect the value of the companies constituting the mutual fund managed by Vanguard), but I don't think it is addressed by the statute.
1.13.2006 2:21pm
Bob Bobstein (mail):
For Matt Barr: Yes, I think that differing views on constitutional interpretation are an appropriate reason for senators to try to oppose a nominee.

That said, I think we can agree that it could all be done in a more civil and productive manner. You mentioned the Clarence Thomas hearings-- I agree that it's a shame that serious matters such as a nominee's likely jurisprudence take a back seat to more lurid matters. Lurid-sounding matters can be relevant, but it's too bad that's where we wind up.
1.13.2006 2:21pm
Cornellian (mail):
The answer to your question about factual assumptions is the same: If factual assumptions turn out to be wrong, which surely one assuming women can't handle the physical rigors (snicker) of law practice would be, then the law should be repealed. If a court gets it before it is repealed, the answer is that the Constitution of the United States does not forbid states from enacting stupid laws based on factual inaccuracies.

I'll refine my example further. Suppose the earlier Supreme Court decision upholding the statute says "Were it not for the fact that women are physically incapable of handling the stress of practicing law, then our result would be different, but since they are, in fact, incapable, then the statute must be upheld." What result today on an original intent approach? Or if you don't like today, what result in 1960 assuming by that date the factual premise is known and admitted by the government to be false.
1.13.2006 2:22pm
Colts41 (mail):
Gene Vilensky said:

"I mean, come on. Imagine if Clinton had asked Hatch who to nominate for the SC and Hatch replied with Johnny Cochran and Zell Miller. Because many of Reid and Schumer's suggestions were along those lines."

But that's not what happened re: Clinton.

And, Gene, you say that "many" but not *all* of Reid/Schumer's suggestions were ridiculous.

What's your source? Who were these ridiculous suggestions?

And who were the *not-so-ridiculous* suggestions?

Bottomline, Bush could care less who the Democrats recommended to SCOTUS. That was not so with Clinton and the Republicans.

Bush's approach is to win on the matter at issue with 50.1% if necessary.

Was that so with Clinton? Probably "yes"; but Clinton was forced from 1/95 to 1/01 to bring some Republicans over to his side.

Bush hasn't had to do that. What's interesting is how he's managed to keep his majority (earmarks, threats, etc. -- the usual stuff of politics).
1.13.2006 2:32pm
Cornellian (mail):
or Matt Barr: Yes, I think that differing views on constitutional interpretation are an appropriate reason for senators to try to oppose a nominee.

That said, I think we can agree that it could all be done in a more civil and productive manner. You mentioned the Clarence Thomas hearings-- I agree that it's a shame that serious matters such as a nominee's likely jurisprudence take a back seat to more lurid matters. Lurid-sounding matters can be relevant, but it's too bad that's where we wind up.


Suppose you're a Senator and you think a nominee is a horrible choice for the Supreme Court and you would very much like to see the nominee defeated. You want to vote against the nominee but you are concerned that the nominee might be relatively popular and your vote used against you at election time. You don't think voting "no" will in itself lose you the election by any means, but like most politicians, you're risk averse in such matters. You're only one vote so you want to swing the votes of other Senators who are on the fence and may have similar views and concerns but not to the same degree. You'd have a greater comfort level in voting "no" and be able to get more Senators on your side if the nominee were less popular. You can choose between a high minded discussion of the theory of constitutional interpretation which you don't understand anyway (since ConLaw was your lowest mark in law school 30 years ago) and which will have zero impact on the public, or you can bring forward evidence of your lurid anecdote involving the nominee, which will have a major impact on public opinion (assuming it's believed) and thereby provide cover for you and your wavering colleagues to vote "no." Which do you choose?

I'd like the nomination hearings to be more like conferences of law professors too, but I don't expect they ever will. I don't think one can realistically ever make judicial nominations subject to confirmation by a popularly elected body while at the same time expecting that that body will minimize consideration of factors that will sway the public that elects that body. It's the price of admission for Senate confirmation.
1.13.2006 2:33pm
PersonFromPorlock:
Politicians tell us that contributions "buy access, not votes." But we already have access guaranteed through the First Amendment's 'right to petition'. So what 'access' is it the politicians are selling?
1.13.2006 2:33pm
Cornellian (mail):
Politicians tell us that contributions "buy access, not votes." But we already have access guaranteed through the First Amendment's 'right to petition'. So what 'access' is it the politicians are selling?

Access on the busy calendar of someone who has time to meet with 10 interest groups in a week, not the 1000 interest groups who would like to meet with him. You have a constitutional right to petition the government, but not a constitutional right to have an individual congressman listen to you.
1.13.2006 2:36pm
Wintermute (www):
More VAWA BS, extreme disclosure required for Americans using mail-order bride services.
1.13.2006 2:45pm
Matt Barr (mail) (www):
So a Supreme Court decision crystallizes for all time, not just a particular interpretation, but also the factual conclusions it reached en route to that decision?

No, of course not. If a stupid law can be repealed, the Supreme Court declaring it consonant with the Constitution doesn't crystallize it for all time. The Supreme Court declaring somethng unconstitutional usually crystallizes it for all time, which is great when it comes to actually unconstitutional things, but not so great when you have policy differences that are amenable to democratic change -- and are in fact trending toward democratic change -- say, for example, the juvenile death penalty.

When you move to interracial marriage, you of course move beyond rational basis.

It sounds like I could restate your premise to avoid my difficulties by saying there was a law prohibiting men from eating radishes because radishes were believed to cause prostate cancer, then it's proven conclusively that radishes have nothing to do with prostate cancer. Here we have a hypothetical law that there will be less impetus for democratic change than a law prohibiting half the workforce from engaging in a lucrative profession. Now we find someone, somewhere who likes radishes -- or maybe a radish farmer -- who sues to have the law overturned because the assumed rational basis is proven to be false.

To be honest with you, my answer is twofold. First, if it were me, I would say "go see your state assemblyman. The political branhces are the ones who should be repealing your laws. I'm smart, clever and good looking, but not all judges are like me, and believe me, you don't want us striking down laws that were perfectly valid when enacted, with as far as I can tell no intent to invidiously discriminate against anybody. Next thing you know you'll be giving a bunch of judges veto power over laws they don't like, and believe me, you'll come across some who will use it."

But second, I'm sure the court would strike down the law. I'm doubly sure it would strike down the women practicing law law, but as I say I don't think it would get that far. You're right, in other words, originalism I don't think can practically be a recourse for a law that's obviously based on falsities.
1.13.2006 3:22pm
Matt Barr (mail) (www):
Yes, I think that differing views on constitutional interpretation are an appropriate reason for senators to try to oppose a nominee.

I guess, though as I say I see a difference between opposing as in voting "no" and the kind of "active" opposition you see in, for instance, Sen. Kennedy's insinuations during these hearings. If you oppose someone because of his views on constitutional interpretation, shouldn't that be your argument?

But even beyond that, you can sort nominees, at least the ones put up by a President for the Supreme Court, into two very general, very broad categories, right? Each has adherents who are completely reasonable, mainstream ladies and gentlemen. One might be, let's call him liberal. We all know lawyers and judges like that, we might be like that ourselves. Virtually every professor I had in law school was like that. This nominee isn't some two-headed monster.

Another we might call conservative. There are conservative loons on the bench and in the bar, and if they're nominated, we should explore and expose their loony-ness. Same with lilberal loons. But if it's someone whose judicial philosophy is pretty much shared by a healthy percentage of the bench and bar, at some point, aren't you fighting a losing battle? Particularly if you're in the minority?

In other words I guess I'm saying by all means, oppose someone conservative if you're liberal, or liberal if you're conservative, but as long as you've got one or the other, even the kind you're not, shouldn't you be sort of resigned? I guess less verbose people say "he's as good as we're likely to get," but that is a valid point, isn't it? At some point, unless you've got something in their body of work or past that leads you to believe the nominee is just off their rocker -- I'm thinking Bork, here -- why go all out trying to... I don't know, what is it they're trying to do?
1.13.2006 3:34pm
Cornellian (mail):
More VAWA BS, extreme disclosure required for Americans using mail-order bride services.

Wow that disclosure is massive, way beyond criminal records. I read the linked article (a Fox news story on the legislation) which lists the things the guy has to disclose and it includes things like every state he's lived in since the age of 18. Hard to see the rationale for that.

I'd have to think foreign women must realize that any American guy who's actively looking for a non-American woman to marry is much more likely than usual to pose some kind of problem. I don't mean a guy who goes to another country, meets and falls in love with a woman over there, or a guy who's looking at woman on a dating service without regard to their nationality and happens to be interested in a non-American woman. I mean a guy who has explicitly decided he doesn't want to marry an American woman and wants to marry a woman from some impoverished third world country instead, and not for reasons of cultural similarity (i.e. recently naturalized American wants to marry a woman from the Old Country). You'd think a foreign woman would consider it suspicious that an American man would explicitly reject marrying an American woman though I suppose given the circumstances she's in, she's probably willing to take her chances and even an oafish brute by American standards is probably a model of enlightened sensitivity by the standards of some countries.
1.13.2006 3:39pm
JohnAnnArbor:
Why isn't the anti-Wal-Mart bill that just passed in Maryland a bill of attainder? I mean, the bill seeks to punish one company and one alone.....
1.13.2006 3:49pm
John Jenkins (mail):
Bob Loblaw, you're right as to what it says, but if owning shares of MS in your mutual fund doesn't amount to a financial interest, as defined in the statute, in MS, a fortiori it doesn't amount to an interest in the mutual fund company because you literally have NO interest in its performance as a company. You don't own shares in Vangauard as such, which is where a financial interest would come from.
1.13.2006 3:52pm
byomtov (mail):
I'd like the nomination hearings to be more like conferences of law professors too, but I don't expect they ever will. I don't think one can realistically ever make judicial nominations subject to confirmation by a popularly elected body while at the same time expecting that that body will minimize consideration of factors that will sway the public that elects that body. It's the price of admission for Senate confirmation.

I'm not sure I'd like that at all. As a non-lawyer I'm utterly unconvinced that discussions of philosophies of constitutional interpretation are anything other than intellectual exercises. I don't think the public cares, I don't think the President cares, and I honestly don't think the nominee cares all that much. Most of the public discussion of this sort of thing is, to my mind, cover for supporting judges who are likely to produce the outcomes one favors.

Inany case, if you are going to complain about the politicization of the confirmation process, shouldn't you also complain about the nomination process? Do you think the people at the White House sit around discussing the fine points of originalism or whatnot when picking a nominee?
1.13.2006 4:03pm
Cold Warrior:
Wintermute and Cornellian (re: VAWA provisions on mail-order brides):

Right. This is silly legislation. And I'm not really sure how it will be applied. It seems to me that you can't require someone to disclose his criminal record before he chats up a woman.

But there's a broader issue here, one that's bothered me for quite some time.

The whole problem with mail-order (a quaint phrase, since they're now "web ordered") brides is this: they may very well be entitled to immigrate to the United States upon marriage. The old INS instituted a rule that the parties actually need to meet in person, but that's it. The prospective (U.S. loser) has to go to Russia, Thailand, wherever, meet the woman, take a few photos, and then petition for her. More commonly, the woman gets a fiancee visa, which allows her to come to the U.S. and become a permanent resident provided she marries the loser within 90 days.

So we have a huge administrative burden placed on the U.S. Government (Homeland Security and Department of State) to facilitate what? Some aging American dork and some desperate third-world girl? And we wonder why we get American dork abusers (who couldn't get a date in their own country, or who prefer the myth of the subservient foreign girl)? And we wonder why we get foreign women who are scam artists? Ask people in the immigration business and they'll tell you the real truth: this is a horrible, dirty business in which no one -- the American "husband," the foreign "wife," the marriage broker, the foreign "wife's" ex-and-future foreign husband, the foreign "wife's" lawyer, and anyone else you can think of -- is to be trusted.

Simply put, the immigration law has no business getting involved with this crap. And it could all be stopped with a simple requirement that, for example, the couple get married abroad and reside together for one year before the "wife" can be imported.

According to the Immigration and Nationality Act, family-based immigration was enacted for the purpose of family unification.

Who's getting reunited here? Why is it the Government's role to pander to some loser's desperate attempt to get laid?
1.13.2006 4:05pm
amn (mail):
Re: the Bush vs. Young question. The Texans shouldn't pick either. They should trade the pick. If Bush is really the best prospect since Barry Sanders, that pick will garner a pretty hefty sum. A trade like the one that Washington made with New Orleans in 1999 (the Saints gave up all 8 picks to move up and take Ricky Williams) would go a lot farther in terms of rebuilding the franchise.
1.13.2006 4:29pm
Cold Warrior:

A trade like the one that Washington made with New Orleans in 1999 (the Saints gave up all 8 picks to move up and take Ricky Williams) would go a lot farther in terms of rebuilding the franchise.

Yeah, and who can forget those Redskins teams of 2000-2003? I don't think there's any way they would've won a Super Bowl if they'd actually drafted and signed Ricky.

Seriously, I agree with you ... Bush isn't that valuable to a team as bad as the Texans. The draft pick trade value could go a long way to making the Texans competitive.
1.13.2006 4:34pm
Gene Vilensky (mail) (www):
Colts41--

The Schumer suggestions were in a letter he sent to Bush (you could probably find it online). The Harriet Miers thing came out, I believe, from a list Bush submitted to Reid and Reid approved her (and I think Gonzalez, though I'm not sure). I don't know the details of this one, but I recall hearing at the time that Ried had approved her. Too bad she wasn't even close to being qualified.

The only quasi-reasonable suggestion that I could ascertain from the Schumer letter was Ann Williams of the 7th (?) Circuit. However, apparently she wasn't interested in the job. The others, Musakey, Prado, Specter, were joke suggestions that he knew were not within mainstream conservative thought. In fact, he touted them for being "moderates." Besides, the letter implied that these were considerations to replace Rehnquist(!) meaning that for O'Connor, all bets are off and only those nominees who would preserve the existing balance were acceptable. The letter can be found here.

That's the whole point, right? Ginsburg and Breyer were rather liberal politically and in their judicial interpretations. Specter et. al. are moderates. In other words, Republicans are supposed to acquiesce to mainstream liberal nominees, which they did, correctly may I add, whereas Democrats are only willing to acquiesce to pro-choice anti-federalism nominees. Colts41--

The Schumer suggestions were in a letter he sent to Bush (you could probably find it online). The Harriet Miers thing came out, I believe, from a list Bush submitted to Reid and Reid approved her (and I think Gonzalez, though I'm not sure). I don't know the details of this one, but I recall hearing at the time that Ried had approved her. Too bad she wasn't even close to being qualified.

The only quasi-reasonable suggestion that I could ascertain from the Schumer letter was Ann Williams of the 7th (?) Circuit. However, apparently she wasn't interested in the job. The others, Musakey, Prado, Specter, were joke suggestions that he knew were not within mainstream conservative thought. In fact, he touted them for being "moderates." Besides, the letter implied that these were considerations to replace Rehnquist(!) meaning that for O'Connor, all bets are off and only those nominees who would preserve the existing balance were acceptable. The letter can be found here

That's the whole point, right? Ginsburg and Breyer were rather liberal politically and in their judicial interpretations. Specter et. al. are moderates. In other words, Republicans are supposed to acquiesce to mainstream liberal nominees, which they did, correctly may I add, whereas Democrats are only willing to acquiesce to pro-choice anti-federalism nominees.
Colts41--

The Schumer suggestions were in a letter he sent to Bush (you could probably find it online). The Harriet Miers thing came out, I believe, from a list Bush submitted to Reid and Reid approved her (and I think Gonzalez, though I'm not sure). I don't know the details of this one, but I recall hearing at the time that Ried had approved her. Too bad she wasn't even close to being qualified.

The only quasi-reasonable suggestion that I could ascertain from the Schumer letter was Ann Williams of the 7th (?) Circuit. However, apparently she wasn't interested in the job. The others, Musakey, Prado, Specter, were joke suggestions that he knew were not within mainstream conservative thought. In fact, he touted them for being "moderates." Besides, the letter implied that these were considerations to replace Rehnquist(!) meaning that for O'Connor, all bets are off and only those nominees who would preserve the existing balance were acceptable. The letter can be found here

That's the whole point, right? Ginsburg and Breyer were rather liberal politically and in their judicial interpretations. Specter et. al. are moderates. In other words, Republicans are supposed to acquiesce to mainstream liberal nominees, which they did, correctly may I add, whereas Democrats are only willing to acquiesce to pro-choice anti-federalism nominees, especially when O'Connor is the one being replaced.
1.13.2006 4:39pm
Gene Vilensky (mail) (www):
Ok, the previous post didn't work properly:

Colts41—

The Schumer suggestions were in a letter he sent to Bush (you could probably find it online). The Harriet Miers thing came out, I believe, from a list Bush submitted to Reid and Reid approved her (and I think Gonzalez, though I'm not sure). I don't know the details of this one, but I recall hearing at the time that Ried had approved her. Too bad she wasn't even close to being qualified.

The only quasi-reasonable suggestion that I could ascertain from the Schumer letter was Ann Williams of the 7th (?) Circuit. However, apparently she wasn't interested in the job. The others, Musakey, Prado, Specter, were joke suggestions that he knew were not within mainstream conservative thought. In fact, he touted them for being "moderates." Besides, the letter implied that these were considerations to replace Rehnquist(!) meaning that for O'Connor, all bets are off and only those nominees who would preserve the existing balance were acceptable. The letter can be found here.
here.

That's the whole point, right? Ginsburg and Breyer were rather liberal politically and in their judicial interpretations. Specter et. al. are moderates. In other words, Republicans are supposed to acquiesce to mainstream liberal nominees, which they did, correctly may I add, whereas Democrats are only willing to acquiesce to pro-choice anti-federalism nominees.
1.13.2006 4:45pm
magoo (mail):
“Say what you want about this hearing being a bare-knuckles display by Dems, compared to the Repubs treatment of Ginsburg and Breyer. ...But remember this fact...CLINTON CONSULTED HATCH ON WHOM TO NOMINATE -- AND PICKED TWO PEOPLE WHOM HATCH SAID WOULD SAIL THROUGH. And so they did.”

Bravo for Clinton. Im sure his consultation was a pure act of statesmanship, and had nothing to do with the Lani Guinier nomination fiasco, the two Atty General nomination fiascos (the 2d of which, involving the former playboy bunny, lasted all of 10 minutes), the Hillary health care fiasco, and the fact that his administration was in such shambles that he was begging Republican adults like David Gergen to come in and straighten out the great job Dee Dee, George, and the others were doing. No, of course not, it was pure statesmanship. But even if so, how in the world does that justify labeling Alito a racist in front of his wife and children with such paltry evidence, and in the face of testimony from everyone who has ever met him?
1.13.2006 4:50pm
magoo (mail):
For all the dems who defending the treatment of Alito, just wait until the tables are turned. And I don’t say that as a threat (I’m not an R); I say it as someone deeply saddened by what has become a thoroughly nauseating process, one that surely deters people of good faith from serving their country.
1.13.2006 4:59pm
duneclimb:
One or two of the Dems yesterday -- I think Leahy was one of them -- asked Alito whether he would recuse himself, if he was confirmed and the Supreme Court heard an appeal of a decision by one of the Third Circuit judges who testified on his behalf this week. Alito said he hadn't thought about that and would get back to the Committee. Given the relative rarity of a circuit judge's brethren testifying before the Senate on his or her behalf, does anyone have any insight into the law or rules on that issue?

I realize that Supreme Court Justices have virtually complete (and clearly unreviewable) discretion on when to recuse themselves, at least where there isn't a clear conflict of interest, so there really is no definitive answer. In light of the fact that the judges' testimony consisted mainly of comments such as "Sam's a nice guy, honest and unbiased," I think it would be ridiculous for Alito to recuse himself just because the Court was hearing an appeal of a Third Circuit decision by one or more of those judges. Any thoughts?
1.13.2006 5:03pm
PersonFromPorlock:
Cornellian:

You have a constitutional right to petition the government, but not a constitutional right to have an individual congressman listen to you.

If my Congressman is turning a deaf ear to me because he's spending his time on the cash customers, I'd say I have a complaint.
1.13.2006 5:05pm
Jon Rowe (mail) (www):
1.13.2006 5:11pm
duneclimb:
Here is a story from the ABA eJournal related to my comment (three comments up) about the lack of any standards for Supreme Court recusals.
1.13.2006 5:40pm
Mary Katherine Day-Petrano (mail):
"Today's Friday the 13th. Why is it only when the 13th's on a Friday that it's considered unlucky?"

Black cats.

"Saying that it's a dumb statute and the legislature should repeal it doesn't answer the question of whether the statute is unconstitutional or whether "original intent" includes facts believed to be true at the time but now known to be wrong."

This is very interesting in the mental disbaility context. If the facts believed to be true at time of original intent prevailed, then all crazy people (in Elizabethan terms, "idiots, lunatics, and the feeble minded") could not be placed in institutions, since the idea of building institutions only originated in Virginia after the original Constitution. Thus, all mentally disabled people, by original intent, should be free, and we would not have needed Olmstead v. L.C. ex rel. Zimring. And, also we would not need bar examinations to obtain a license to practice law.

But, even supposing those who live by original intent were to rather prefer to stop the clock sometime around the 1930s-1940s, and require standardized Nazi-esque tracking examinations based on measuring a certain kind of cognitive ability, such as still exists with NCLB, LSAT, GMAT, GRE, SAT, NY RSQCT, Bar Examinations, Driver's Licensing written examinations, Real Estate Examinations, Etc., then what happens if the 1930s-1940s factual basis for this certain cognitive ability turns out to be fatally flawed by the advancement of medical and scientific technology in, say, 2006? For example, what if the people with certain types of learning disabilties, autism, or traumatic brain injury who cannot pass these examinations, nevertheless have an extremely high level of intelligence, knowledge, and ability these type of examination exclude in the tracking process? Would this change the result of say, Schware? What if it ultimately turns out, like Yew plants are to fghting cancer, that we track out and eliminate all the autistics as worthless, only to learn in 2056 that they held the ultimate intelligence enhancement gene?

But, what I would really want to talk about, that probably doesn't matter to anybody, since most people like neither horses nor disabled people, is why the Department of Agriculture and Bureau of Land Management should disobey Congress's ban on the slaughter of American horses, and why the slaughter of horses rather than requiring Medicare to provide them as medical therapy to disabled people, does not violate the Rehabilitation Act of 1973, as well as squander important National resouces and trasures, namely disabled people and their companion disability service animal equines. I remember reading a boat dock case about a National park plan, and how the Rehabilitation Act was violated because of the failure to properly consider dock access to disabled people -- why is this any different for Department of Ag and BLM not to consider and implement a ban on the slaughter of horses and HHS and SSA not to consider and implement access to these saved horses as disability therapy animals? It is certainly a lot less expensive than purchasing pharmaceuticals thru the new Medicare prescription plan, and costs our Nation a lot of unnecessary expense not to provide these alternative therapies. Special Olympics and therapuetic horseback riding has established the many benefits now being lost to the majority if disbaled people.
1.13.2006 5:47pm
18 USC 1030 (mail):
I'd like to start this by saying I apologize if it gets long but it happens sometimes. For starters, I propose the following law, whether it be created as a Senate rule or an amendment affecting Article 1 section 3 clause 2 that should read:
Prior to a newly elected Senator being sworn in as such, he or she must have completed a Constructional Law and History course. This class must have discussed the History of the Legal Process of the United States from the Declaration of Independence up to the previous term of the Supreme Court. Discussed be the separation of powers as well as the rights and duties of each. Furthermore, in order to understand such principles, the course must include a detailed analysis of the works used in crafting the Constitution including Hobbes and Montesquieu, as well as the Federalist Papers.


I do not understand the Judiciary committee. It is a joke. How many of the Senators on the committee are a member of the bar? You would think with so many lawyers on a panel, someone would have remembered something about the purpose of a judge. I cannot for the life of me understand why all of these former lawyers and judges for that matter sit there and make a mockery of themselves, the Court, and the Senate. Sure, I understand it is politics. But this is getting ridiculous the Republicans sat there and spent their time talking about how great Alito is and saying why Kennedy, Schumer, et. al. are wrong. The Democrats spent their time saying how Alito is anti-civil rights. Biden, Schumer, and Kennedy made complete jokes of themselves with the line of questioning. They couldn't care less what Alito said, they care only that Bush nominated him; therefore, he must be bad. Schumer (I believe, though it may have been Biden) made a comment to the effect of for the life of him not being able to fathom how the framers when designing the Constitution created two branches of government controlled directly by the people and a third branch that the public had absolutely no knowledge whatever about those in the third branch who serve life terms. My suggestion to Mr. Biden is to think back to law school (though I'm sure he'd rather not think about his getting kicked out for plagiarism) and think about the Constitution of 1787. Then I want him to come back and say that 2 branches were controlled directly by the people. As far as I can tell, 1/2 of 1 branch was controlled by the people: The House of Representatives. The president was elected by the electoral college to ensure the ignorant didn't "break stuff." And the Senators were elected/appointed by the states. Furthermore, if he bothered to read the Federalist Papers, he would understand the reason for which the Judiciary is not elected by the people and the reason for which the term ought to be life. Federalist 78 also discusses the Montesquieuian maxim that the judiciary is to be the least powerful branch, and branch least able to harm the people. Judges are to be interpreters; perhaps the problem is not the judiciary, but rather the Congress. Maybe if Congress wrote "good law" it would be less vulnerable to "bad interpretation."

Senator Feinstein spent her time on abortion trying to get him to comment on what his decision would be. This charade is getting old. No nominee is going to answer the question, nor should they. It is precedent and deserves the respect required. This conversation of super precedent and super dooper precedent is obnoxious.

The republicans of course are not without fault, they sit up there and praise Alito without asking him any serious questions at all. They try to get around any possible negative statements made by the democrats.

I however, hold the president responsible. Not this president per se, but what the position has become over time. In writing Federalist 78, I'm not sure Hamilton ever anticipated the judges to be appointed in such a politically charged manner. The president tries to get someone with similar beliefs on the court, the opposing party gets upset and we get this useless charade of a hearing the Senate. My view is Hamilton anticipated the strongest jurists be appointed to the court without regard for politics. Why? Because, politics do not matter in the court. Politics matter in the Legislature, in order to ensure our elected officials enact law we agree with and ensure they fund those programs we want them to. It applies to the Executive in order to ensure the president carries out what the Legislature provides. However, the Judiciary is not to be politically biased. The Legislature and Executive decide questions by what they think is right. The Judiciary decides cases based on what the law says. Not what they believe is good or bad. But, what the law says is good or bad.

If the Committee decided to act as cohesive group and actually see whether or not Alito was qualified, without the argument over particular issues all of us would be better off. Furthermore, if the president appointed people who were respected Scholars/Practitioners all of us would be better off.

The issue with this hearing that has irritated me the most is the conversation about Justice O'Connor. Asking him if he will be like her, talking about her being a swing vote, and her respect for women’s issues is obnoxious to him, the court, and Justice O'Connor. The explanation being given for purely political reasons is that she decided cases based on what the view of the public was. It makes one infer that she decides a case as "a woman for a woman," rather than as an impartial jurist for an impartial jurist. I've never heard O'Connor referred to as a brilliant jurist. Perhaps this is the reason. No offense to the Justice, but I am not sure I want a judge deciding cases by prevailing public opinion or what she believes is right. I want the Judge deciding a case based on the law. If we do not like the law it is up to us to get Congress to change the law. This swing vote argument makes O'Connor look like some rag doll that gets tossed back and forth over the fence depending on which opinion looks more likely to gain public opinion. I am not sure that this is Justice O'Connor's method of deciding cases; but I hope it is not.

Finally the statistical Analysis of the cases Alito heard on the Circuit are a joke. I think it was Judge Aldisert who said the percentage of cases overturned is 8.7%. Now if this is true, Judge Alito siding with the government 90% of the time seems to make sense. In fact, it seems to suggest the Judge sides with the Appellant more than the average. Face it, appellate courts hear cases that are on appeal. When someone is found guilty, they appeal. In a lot of cases, someone is found guilty because they are guilty. Should Alito be letting criminals go in order to side with the appellant more than the state?

These hearings are becoming a joke because the whole process is a joke. We no longer have an independent judiciary because both sides want a person with similar political views on the court to cancel out the opposing views. Perhaps, in order to help us all they should pledge to start supporting judges who are impartial and not political, understanding opinions will be written we disagree with, but that is part of democracy. Democracy does not ensure we get what we want, it ensures the people get what the people think is right.

One thing Alito said did scare me a bit, he started talking about the greatness of the Bill of Rights by saying it gave the people rights not given by any other document in any other country. This scares me, as I'm reasonably certain most would agree it ensures rights that exist based on natural law, not that of man. Furthermore the implications of such a statement seem worrisome. However, I can accept it may have been a mistake. I am not against him, but this process really needs to change. The government needs to remember they represent US not themselves. They are not to put their rule on us; but rather, put our own rights upon us. It is a social contract between us and the government, they need to remember that; and if they don't, we need to remind them by voting them out of office.
1.13.2006 6:13pm
Cornellian (mail):
But, what I would really want to talk about, that probably doesn't matter to anybody, since most people like neither horses nor disabled people, is why the Department of Agriculture and Bureau of Land Management should disobey Congress's ban on the slaughter of American horses

I like horses. I can't recall anyone ever telling me that they didn't like horses. I thought horses, like dogs, were almost universally popular.
1.13.2006 6:24pm
George Gregg (mail):
magoo, no one is arguing that Clinton's picks were out of any sense of altruistim or statesmanship. It was merely pointed out that the reason his two SCOTUS nominees sailed through without getting drilled by the Republicans was because the Republicans had, in essence, pre-approved those nominees (via Hatch).

Not, as many would like to suggest, because the Republicans were somehow generally such decent, respectful folks, compared to those evil Dems.
1.13.2006 6:28pm
Cornellian (mail):
Why isn't the anti-Wal-Mart bill that just passed in Maryland a bill of attainder? I mean, the bill seeks to punish one company and one alone.....


1) It's not a criminal punishment, but a directive to do something

2) It doesn't just apply to Wal-Mart, but to all employers in Maryland over a certain size. There are about five such employers but the others already spend more on health care than the statute requires. So at present Wal-Mart is the only company that would have to alter their status quo to comply with this legislation but it doesn't affect only them. It would also apply to any new employers in Maryland of that size, or existing ones that grow to that size, and would prevent the other employers currently over that size from reducing their health care spending below the statutory limit.

One might consider the legislation ill advised, or worse, but it can't seriously be considered a bill of attainder.
1.13.2006 6:29pm
Cornellian (mail):
Bravo for Clinton. Im sure his consultation was a pure act of statesmanship, and had nothing to do with the Lani Guinier nomination fiasco, the two Atty General nomination fiascos (the 2d of which, involving the former playboy bunny, lasted all of 10 minutes)

Hmm, never heard of the Playboy Bunny one. Details please, and links to the photgraphic evidence...
1.13.2006 6:32pm
VC Reader:

Why isn't the anti-Wal-Mart bill that just passed in Maryland a bill of attainder? I mean, the bill seeks to punish one company and one alone.....

Because a bill of attainder is one that declares a person guilty of a crime. To the best of my knowledge, the Maryland act does not declare Wal-Mart guilty of anything. It merely requires businesses with more than 10,000 employees to pay at least 8% of their payroll costs towards healthcare.
1.13.2006 6:42pm
gramm:
I'm tired from finishing a draft opinion disposing of a pesky intervenor's frivolous motion in a much larger civil rights case, so I cannot claim that the following will be sensible or thoughtful (though I don't either being expressed requirements of these posts). In any event, I offer these predictions for 2006 and beyond:

1. The U.S. will hasten its slide into a regional war in the middle east by aiding Israel in a clandestine military strike against Iran's nuclear facilities.

2. The military strike mentioned above will come shortly after the Democrats fail to win back majorities in either the House of Representatives or the U.S. Senate in mid-term elections.

3. Though superior U.S./Israeli forces will quickly vanquish conventional Iranian forces, the fight will morph into a lingering guerrilla-warfare-style insurgency. Additionally, the conflict will ignite smoldering tensions between radicals and their mainstream political counterparts in Syria, Lebanon and Egypt. The result will be outright takeover by radical elements in those countries and regional war against Israel, in which the U.S. will intervene on behalf of Israel.

4. The U.S. will exert intense political pressure on Israel to avoid the use of nuclear weapons. The countries will reach a secret agreement in which Israel will consent to abstain from using nuclear weapons in exchange for a commitment from the U.S. to establish a permanent military presence in Iran and Iraq and guarantee Israel's long term security.

5. Vice-President Dick Cheney will leave office late this year or in early 2007 after suffering an actual or staged serious medical emergency. The President will replace him with Mitt Romney, who will run for President in 2008 as an incumbent VP. Romney will lose in the Republican primary. He will fail to win Massachusetts, the state in which he served as Governor.

6. There will be another vacancy on the Supreme Court this year or next. To fill the vacancy, President Bush will nominate Judge Janice Rogers Brown. Demoralized from their recent failures in the 2006 mid-term elections, the Democrats will mount a vigorous campaign to defeat Judge Brown's nomination and set the stage for the 2008 presidential election. The Republican Senate will exercise the "nuclear option," in response to Democrats' filibuster threat and Judge Brown will be confirmed.

7. The Republicans will lose the 2008 presidential election. However, contrary to the expectations of many, Hillary Clinton will not be elected President. She will lose in the Democratic primaries to a dark horse candidate, currently not widely believed to be a contender.

8. Within ten years, the Roberts Court - - with its solid conservative majority: the Chief, Scalia, Thomas, Alito, and Brown - - will reverse Roe v. Wade, and remand the question of the constitutionality of legalized abortion to the several states. Justices Breyer, Ginsburg, Souter, and Kathleen Sullivan (recently appointed to fill the vacancy created by Justice Stevens’ passing) will pen heartfelt dissents. Justice Kennedy will concur in the outcome of the Justice Alito’s majority opinion, but dissent from that portion of the opinion which focuses on traditional morality and compares abortion to euthanasia.

9. Despite fears to the contrary, the world will not end. Though legal abortion will be protected under state constitutions in only a minority of states, such states will contain the majority of the nation's population.

10. Rudy Gulliani will not hold public office again but will appear frequently as a minor character in popular films and televisions series.

*Bonus: Jonathon "the Impaler" Sharkey, a self-professed Satanic Dark Priest, Sanguinarian Vampyre and a Hecate Witch, will lose his 2006 bid to become Governor of Minnesota. The race will not be close. [see: link to wonkette.com article]
1.13.2006 7:06pm
Matt Caplan (mail):
What's on my mind? Wikipedia, and how potentially unreliable it is. I'm a 1L, taking Criminal Procedure, and I Googled Olmstead v. United States because I'm trying to find more about the development of the exclusionary rule. A few paragraphs in, I notice that it states that "Elkins v. United States" is the case applying the exclusionary rule to the states. That's wrong! It's Mapp v. Ohio! So I corrected it, which I suppose is the principle that the system is built upon. I'm not sure what conclusion to draw, just need a place to let this out, and I happened to be browing this most excellent blog.
1.13.2006 7:21pm
Rhadamanthus1982 (mail) (www):
My thoughts are on the UK Parliament as the Liberal Democrats do their rendition of 'Julius Ceasar'. The Conservatives are furious as they are the ones who usually get to stab their leader and elect a usurper!
1.13.2006 7:42pm
Rhadamanthus1982 (mail) (www):
Plus Gamm, are you aware that you've got 10 justices on your Supreme Court? You've promoted 2 new justices (Brown and Sullivan) but killed off only one (Stevens!)
1.13.2006 7:44pm
gramm:
Oops -- I guess Justice Ginsburg goes gently into that good night as well. Like I said, very tired today.
1.13.2006 7:51pm
teh (mail):
I PWN peaches
1.13.2006 7:53pm
Rhadamanthus1982 (mail) (www):
Hmm, possibly though how could you kill off Stevens? He's in the prime of health, a vibrant, energetic born again liberal who will be around for decades to come!!!
1.13.2006 7:54pm
Cornellian (mail):
What could possibly motivate Bush to select Mitt Romney as a VP to replace Cheney? I can't see any upside for Bush in that selection. Romney's going to run for President anyway, but he won't win the Republican nomination because the party will absolutely not be willing to nominate a Mormon, and he won't win the Republican primary in Massachusetts because his campaign for the nomination consists of ridiculing the liberal tendencies of that state.
1.13.2006 9:22pm
Cornellian (mail):
Who's the dark horse Democrat who will defeat Hilary to secure the 2008 nomination? Warner? Bredesen? Richardson? I can't think of any Democratic senators who could possibly defeat her.

Will the winner pick Barack Obama as his running mate?
1.13.2006 9:24pm
magoo (mail):
Cornellian...google "Kimba Wood"....federal dt ct judge, 2d failed Clinton nom. for AG.....like I said, Clinton pulled the cord very fast; if you blinked, you missed it
1.13.2006 9:36pm
minnie:

Minnie, don't you think it says something that the person to whom you're referring was opposing counsel who lost the case?

John Jenkins: Actually, no. I keep an open mind. If Osama Bin Laden says 2+2=4, I don't assume 2+2 does not equal 4.


Also, doesn't it reveal something of a personal bias when the "most impressive" group is the one you agree with as opposed to, say, the group of sitting federal judges?


Actually, no. I come from a family where no person for the last four generations, including myself, has ever cast a vote that wasn't Republican. If I find the opposition group's arguments more impressive, it's because I find their arguments more persuasive. As for the group of sitting federal judges, you cannot be serious. What could be LESS persuasive than a group of people whose careers would be enhanced if Alito were to be confirmed? As far as I am concerned, it's the quality of the opposition that tells the tale, not the sycophantic careerists who want to back a winning ticket and get their mugs on TV. With Clarence Thomas, I found absolutely no merit in any of the opposition arguments, although I listened with an open mind.

Now, as to the real point, I can say that perhaps YOU are the biased one. You have answered my question, so Eugene and Orin can only confirm that Mr. Flym was correct, not offer anything to disprove what he says:

(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;

THIS IS PRECISELY WHAT MR.FLYM said, and is shocking. It's grounds alone for Alito to be rejected on ethical grounds, and an incredible display of the lack of competence of the ABA, and why every person should "do the math" himself instead of assuming that any group, no matter how prestigious, speaks the truth.

"Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities."

What could be clearer? This language exempts the judge from participating in cases involving the SECURITIES held by a mutual fund, i.e., if Vanguard owned Microsoft, the judge does not have to recuse himself from a case involving Microsoft. It DOES NOT state that the judge can recuse himself from cases involving the mutual fund itself, which is exactly what Mr. Flym said. Judge Alito, if he is a good enough judge to even sit on a lower court, much less the Supreme Court, knows that. He is supposed to be such a meticulous jurist. I am not a lawyer, but I can read clear language, as can anyone who is honest and not looking to skewer the meaning of the plain words which appear in black and white.

I am absolutely shocked, I can tell you, and I am not Casablanca shocked, but really shocked, that this point went unnoticed by all of Alito's critics. I kept wondering why the Vanguard case was talked about so much. Now I see. Someone smart must have told those Democratic dummies that there was a real issue here, but being as intellectually challenged as they are, they didn't pick up on what that real issue is.

It is an absolute lie that the law was that Alito did not have to disqualify himself. He did. The language above makes that clear. He knowingly lied, and should be charged with lying under oath. That must be why he needed four different explanations to try to explain the matter away, because he knew damn well that it was a real issue.
But only when he saw that it passed unnoticed by the dummies on the ABA panel did he feel empowered to try to pass off those lies to the public at large. So he comes up with the insulting "I didn't have to recuse myself, but I hold myself to a higher standard" baloney, and then fails to recuse himself anyway. It's laughable, if it wasn't so pathetic.

That brings us to question another statement Mr. Flym made, since his assertion about the mutual funds vs. the securities held by those funds turns out to be correct. He said that this was hardly an issue that affected one little investment of his client, but rather, was something which affected tens of millions of dollars of IRAs. Maybe if his client had won, there would have been class action lawsuits against Vanguard on those grounds.

You will no doubt say, but the case was tried again, and the same result was arrived at. I say, are you at all familiar with the State of New Jersey, because if you are not, I am, and I therefore will have to read the entire case myself to see if justice was served.

Does anyone know if it is online?

Also, does anyone know if Alito's sister, or members of his family, also owned Vanguard? I personally reject out of hand the notion that he had nothing to gain. When your entire net worth, and possibly, I say possibly, large amounts of family member's net worth, is tied up in one company, it certainly is something to look closely at.

Orin and Eugene, I know you see this point, but does the fact that you support Alito for your own reasons mean you will not weigh in and confirm that the clear meaning of that language is that there is no recusal in cases involving the mutual funds themselves, only in cases involving particular securities that are held by any particular mutual fund?
1.13.2006 9:48pm
Cornellian (mail):
OK I googled "Kimba Wood." The articles that came up indicate she withdrew because her babysitter was in the country illegally (even though at the time it was perfectly legal to hire her as a babysitter). They also mention she was a former Playboy Bunny (one described her as a former "trainee" for the position) though they don't explicitly link this to the withdrawal of her nomination. I find it hard to believe that being a former Playboy Bunny would (or should) disqualify one from a judicial nomination.
1.13.2006 9:55pm
Cornellian (mail):
To me, "Concerned" is a code word that says "ignore me." In other words, any group with the word "Concerned" in its title is automatically excluded from my attention. To that list I could probably add "Family", "People" and "Liberty."
1.13.2006 10:24pm
18 USC 1030 (mail):
Minnie you had 1 fatal flaw:

I am not a lawyer, but I can read clear language, as can anyone who is honest and not looking to skewer the meaning of the plain words which appear in black and white.



There are no clear words in law. Nor is law black and white, if it were, there wouldn't be 3 years of law school culminating in a doctoral degree. Yes I'm aware it's a professional degree not research such as Ph.D.; This designation makes it equal to calling the family physician doctor. Would you claim medicine is plain and black and white? I think not.
1.13.2006 11:48pm
Mary Katherine Day-Petrano (mail):
"*Bonus: Jonathon "the Impaler" Sharkey, a self-professed Satanic Dark Priest, Sanguinarian Vampyre and a Hecate Witch, will lose his 2006 bid to become Governor of Minnesota. The race will not be close."

Dear Soothsayer, you made MKD-P's day.
1.14.2006 12:42am
Mary Katherine Day-Petrano (mail):
"*Bonus: Jonathon "the Impaler" Sharkey, a self-professed Satanic Dark Priest, Sanguinarian Vampyre and a Hecate Witch, will lose his 2006 bid to become Governor of Minnesota. The race will not be close."

Dear Soothsayer, you made MKD-P's day. Thanks so much.
1.14.2006 12:43am
minnie:
18 USC

Language says what it says, no matter what anyone says it says. If it is ambiguous language, then the words can be interpreted in various ways. If it is precise and well drafted, only one reading is possible.

I think that clause about recusal is clear, and not ambiguous. It speaks to the underlying securities, and not to the mutual fund. If there is other language which permits a judge not to recuse himself from mutual fund cases, then that's another story. But that particular language does authorize a judge to sidestep recusal on mutual fund cases.

However, my neighbor is one of the few top mutual fund lawyers in the country. I'll ask her.
1.14.2006 2:32am
Bjartur:
It struck me as interesting lately how it seems like everyone who looks at these things tends to have radically different thoughts about how to interpret the Constitution w/r/t how much power the President gets in Article II as Commander in Chief as compared to how much power Congress gets in Article I to regulate Commerce among the several States.
1.14.2006 1:01pm
Frank Drackmann (mail):
I heard this rumor that back in the 60's Judge Alito took this young women with him in his car, drove off a bridge, and left the girl there to suffocate instead of calling for help. I think anyone who would commit such an act should be prosecuted to the full extent of the law and certainly not hold any high government office. Since he seems the most interested in protecting the integrity of the courts I have notified Senator Kennedys office of this rumour.
1.14.2006 3:53pm
Thief (mail) (www):
How come Georgetown Law students get in here without being able to read or comprehend any sign dealing with time? (i.e. professors' office hours, when to pick up materials, when to go see the registrar about classes, etc. etc.)
1.15.2006 2:03pm