"Now, it's time for the happy recap." - Bob Murphy
Law 2005 Archives
December 13, 2005
LAW: Snuffing The Gangs
I remain ambivalent about the death penalty on a number of levels, not least the question of under what circumstances a Catholic can support it. (On the other hand, as I've said before, the more I listen to opponents of the death penalty, the more I tend to lean towards supporting it). In particular, I'm not sure the death penalty is worth the economic cost, nor that it can be applied consistently enough in the case of ordinary homicides - armed robberies, individual feuds, domestic violence - to make the necessary deterrent effect worth the varied costs of the penalty. Anyway, more on that another day.
Because the execution of Stanley "Tookie" Williams seems to me to fall on the pro-execution side of an important line. What is significant about Williams' case is that he was responsible for being one of the founders of the vicious street gang the Crips; Williams set in motion an organization that specializes in preying on the weak and the vulnerable and corrupting the young and the impressionable. The case for the death penalty is at its strongest in dealing with organized crime - whether terrorists, street gangs, the KKK, the Mafia or the drug cartels - both because civilized society must use the means at its disposal to defend itself, and because the goal of deterrence is much more directly served when directed not at the general criminal population but at an organization whose members may know the defendant and who have reason to expect that they could be next.
December 12, 2005
POLITICS/LAW: Same Sex Marriage and Children
Last Thursday, the New York Appellate Division, First Department - the intermediate appellate court in Manhattan - upheld, against constitutional challenge, the New York Domestic Relations Law's extension of marriage only to opposite-sex couples. (H/T: Althouse). In so doing, it touched on some arguments on the issue that I've been thinking about for some time now.
In particular, our democratic polity has a rational basis for preferentially allocating scarce resources to benefit opposite-sex rather than same-sex married couples to promote two vital interests: promoting the population growth needed to sustain a healthy society and discouraging illegitimacy and abortion.
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With a subject as divisive as same-sex marriage, it's necessary to spend a little time first rehashing where I stand on the issue and why. The same-sex marriage debate, at least as it plays out in the realm of law and public policy, really encompasses four distinct questions about of rights and privileges:
1. Is there a social interest served by having government license and regulate marriage?
2. Is there a social interest served by having government provide financial benefits and incentives to encourage marriage?
3. Should same-sex couples be entitled to enter into a relationship licensed and regulated by the state?
4. Should same-sex couples be entitled to financial benefits and incentives that are provided to encourage marriage?
Not everyone comes out the same way on all four questions. Some libertarians, for example, argue that the state shouldn't be involved at all in licensing and regulating marriage. I don't buy that argument, not least because - much as I hate divorce - I recognize that in the absence of recourse to the courts to handle the dissolution of marriages and child custody disputes, you'd end up with more couples resorting to violence to resolve such disputes.
Libertarians and some small-government conservatives also argue that even if the state licenses marriage, it shouldn't be in the business of favoring any one relationship over others in handing out benefits and tax breaks. A 1999 GAO study estimated that the government alone preferential treatment of some kind to married couples in over 1,000 places in federal law, from pensions to the tax code. The libertarian/small-government conservative argument - that a smaller, less intrusive government would intersect with families at fewer points and that government shouldn't make any effort to encourage or discourage any particular behavior beyond what is legitimately criminalized - has its merits, but for now, I'll just leave that debate for another day. Like it or not, government is in the social-policy business, and until the day comes when we can create a radically smaller and less intrusive government, we're going to have to decide how that government allocates scarce resources among competing claimants.
As I explained at greater length here and here, I support legislatively extending to same-sex couples the right to have their relationship recognized and sanctioned under law, and I support as well allowing such couples those benefits that are provided to married couples principally for the purpose of enabling them to dispose of their own property and to participate in each other's major life events - benefits like joint title to property, inheritance rights, hospital visitation rights, etc. None of these rights imposes any substantial costs on society at large - except, perhaps, for the right to seek court assistance in dissolving the civil union - and they are consistent with the view that the decision to spend your life with a same-sex partner is between you, your partner and the Lord, and isn't fundamentally the state's business.
But where I disagree with proponents of same-sex marriage is on two counts: first, the effort to forbid the state from offering any benefits to traditional, opposite-sex married couples unless it offers them to same-sex couples on the same terms, and second, the effort to impose changes in the legal status of marriage through the courts rather than the democratic process. As I've explained before, what I find particularly offensive about the latter is the fact that its core argument - that there is no "rational basis" for the state to favor traditional, opposite-sex marriage - is precisely the denigration of such marriage that same-sex marriage proponents are constantly trying to disclaim:
[W]hat does stick in my craw rather severely is the Goodridge approach of having a bunch of judges pronounce not only a change in the thousands-of-years-old definition of marriage, but also that there is no rational basis whatsoever for that institution as it has always existed. . . [W]e're being asked to swallow a legal declaration that our longstanding and sacred institutions have no meaning, and we're supposed to smile when they tell us that. Why shouldn't that bother me?
Anyway, all of this is background. The New York court's decision properly recognized that this issue should be dealt with by the state Legislature (as is being done in Great Britain), not the courts, and distinguished the Supreme Court's 1967 decision in Loving v. Virginia, involving interracial marriage, finding that "that Court held that the intent of the anti-miscegenation statute directly conflicted with the fundamental right to be free from racial discrimination based on the Equal Protection Clause, as well as with the fundamental right to traditional marriage based on substantive due process." Hernandez v. Robles, 2005 NY Slip Op 09436, at *9 (N.Y.A.D. 1st Dep't Dec. 8, 2005).
The portion of the opinion I'm interested in dealt with the rational basis the state does have in offering additional benefits and protections to traditional, opposite-sex marriage:
Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right. These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. The reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth.
Plaintiffs fail to carry their burden of demonstrating that the legislative facts on which the statutory classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker. They do not dispute the Legislature's assumptions concerning the advantages of encouraging the rearing of children by both biological parents. Their argument that the statute does not have a rational basis because it allows heterosexual couples unable or unwilling to have children to marry ignores precedent holding that the classification created by a statute need not be perfect. Nor does it lack rational basis because it addresses one legitimate policy interest or problem (regulating heterosexual marriage) over others even if they are related to the same subject. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach.
Slip op. at *6-8 (Emphasis added; citations omitted).
There's a couple of critical points here. Proponents of same-sex marriage often treat the connection between marriage and children as an argument that can be disposed of by syllogism: that since heterosexual couples are able to marry even if they have no intention or ability to have children, it must be the case that bearing and begetting children has no rational relationship to marriage and can't be a proper basis for distinguishing between opposite-sex and same-sex mariage. There are, however, four major reasons for finding this argument unpersuasive.
The first, not discussed above, is one I'll touch on just briefly here: privacy. The state can determine just by looking at a same-sex couple that they're not likely to bear children, and can't do so through traditional means. With the exception of the aged and a few other classifications, that's not true of opposite-sex couples: the government would need to conduct an intrusive investigation to ascertain that an opposite-sex couple was infertile, not having sex, using birth control or otherwise unable or unwilling to bear children.
The next two reasons are related. As the court notes, the rational basis test doesn't require a perfect "fit" between the preferred solution adopted by democratic policymakers and the ends they seek to promote. There are scores of examples of government programs, tax credits and the like that provide benefits to a group of people or institutions not because they will all advance the interests the government is trying to promote, but because it can be rationally determined that they are more likely than another group to provide the desired social benefits. If we required a perfect fit, precious few government programs could survive rational basis scrutiny.
The third, related reason is that society as a whole has an interest in promoting childbearing, an interest the Hernandez court dryly notes is "critical, but presently undervalued." A look at the demographic crisis in Europe, Russia and Japan is all that needs to be said for the importance of this interest: without a decent level of childbearing, society becomes top-heavy with old people and enters a spiral of declining population, which is problematic on many levels.
Now, it's certainly true that same-sex couples can now use modern technology to have children without being in a heterosexual relationship. And it is argued - and argument I won't even try to wade into - that same-sex parents can be just as good at raising children as opposite-sex couples. That's still not enough to show that there's no rational basis for preferring opposite-sex couples if your goal is to promote having children.
Let's give a hypothetical example to illustrate why. Let's say that you're an investor in a new planned community, to be started from scratch in a part of the country that presently has little population. And let's further suppose that, based on the mix of businesses you are hoping to attract to your planned community, your consultants and investment bankers inform you that the economic assumptions of the project require that a fairly large proportion of the new residents be families with children. And, finally, let's suppose that you had a finite budget for advertising and sales, and that budget included a deal with an airline to bring in, say, 500 prospective residents at little or no cost to inspect the place.
It doesn't matter what your agenda or your biases are - acting out of pure rational economic self-interest, wouldn't you very strongly prefer that the 500 seats went to opposite-sex married couples? Aren't they very obviously the people most likely to produce children in general, and multiple-child families in particular? Granted, I don't have an empirical study in hand on the point, and I suspect that if you did one it would be objected to on the grounds that many obstacles stand in the way of same-sex couples having children . . . but even so, is it really so irrational to believe that a set of 250 opposite-sex married couples would, in almost any conceivable circumstance, produce more children than 250 same-sex married couples of the same age and socioeconomic background? If that isn't a rational conclusion for government to draw, there are precious few of the conclusions supporting any legislation that will withstand scrutiny.
The fourth point is the flip side of promoting the begetting and bearing of children: promoting the raising of children in two-parent homes rather than single-parent homes by "set[ting] up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing". If underpopulation is a bit of an abstract, big-picture public policy problem, illegitimacy is not. An endless march of empirical studies has found that illegitimacy correlates strongly with poverty, criminality, and virtually every other social problem you can think of.
And, by definition, illegitimacy is an exclusively heterosexual problem. Unmarried gay sex does not lead to unplanned or unprepared-for pregnancies, period. Unmarried gay couples will not produce single-parent homes, nor will they have abortions, whereas the number of children aborted by or born to unmarried heterosexuals every year is very large. By targeting tax breaks and other preferential benefits towards opposite-sex married couples, government can help encourage unmarried opposite-sex couples to marry and can reinforce existing social norms in favor of such marriages.
Like I said, neither of the two arguments depends in any way on a legislative determination of whether same-sex couples are or are not as qualified to raise children as opposite-sex couples. Rather, they simply recognize that opposite-sex couples are more likely to have more children once married, and are also far more likely to have children even outside of marriage. It's an entirely rational policy choice, therefore, to focus scarce societal resources on promoting opposite-sex marriage as a way of sustaining population growth while discouraging illegitimacy.
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December 10, 2005
LAW: Time for Some ADA Litigation
Mental health practitioners say they regularly confront extreme forms of racism, homophobia and other prejudice in the course of therapy, and that some patients are disabled by these beliefs. As doctors increasingly weigh the effects of race and culture on mental illness, some are asking whether pathological bias ought to be an official psychiatric diagnosis.
Can lawsuits claiming that racists are a protected class entitled to sue under the Americans with Disabilities Act be far behind?
UPDATE: This is as good a time as any to recount my all-time favorite "ADA run amok" story: after the $5 billion Exxon Valdez verdict, which was supposed to send the message to Exxon not to hire drunks as ship captains . . . the EEOC sued Exxon for, essentially, having a policy of not hiring drunks as ship captains. The Fifth Circuit ruled in Exxon's favor after something like seven years of litigation, but its ruling merely set the case for further proceedings, and I'm not sure how it eventually came out. But the point was made: Exxon was damned if it did, and damned if it didn't.
December 9, 2005
LAW: Not Unusual
Supreme Court correspondent Tony Mauro pens an odd dispatch (reg. req.) on John Roberts' first opinion as Chief Justice, a unanimous opinion for the Court in Martin v. Franklin Capital Corp., No. 04-1140 (U.S. Dec. 7, 2005):
The case, which interpreted the statute that governs the removal and remand of civil cases between state and federal courts, did not lend itself to soaring constitutional rhetoric, and it got none from the chief justice.
Mauro is right that the opinions issued this early in the term are usually unanimous dispositions of cases raising no major constitutional issues. But actually, I found this opinion to be both important and eloquent. Important, because successful remand motions are a fairly common event - maybe not to the average citizen, but to practicing lawyers - and thus the standard for awards of attorneys fees in that situation is a matter of practical significance. The need for the Supreme Court to revisit this issue being unlikely, this opinion will probably still be routinely cited a hundred years from now.
And eloquent, in Roberts' treatment of how courts deal with matters that are within the discretion of the district judge, in a passage that is likely to be widely cited outside of its narrow context:
The fact that an award of fees under Sec. 1447(c) is left to the district court's discretion, with no heavy congressional thumb on either side of the scales, does not mean that no legal standard governs that discretion. We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982). For these reasons, we have often limited courts' discretion to award fees despite the absence of express legislative restrictions. . .
(As some other commentators noted, Roberts managed to slip in citations to both judges he clerked for, then-Justice Rehnquist and legendary Second Circuit Judge Henry Friendly).
December 8, 2005
Anyone who has ever had trouble with a bar exam can take some comfort in seeing that prominent constitutional lawyer and former Stanford Law School Dean Kathleen Sullivan has failed the California bar. Click the link for the Angry Clam's explanation of why he thinks this would happen.
December 7, 2005
LAW: It Never Ends
The Supreme Court just held (in an opinion by the as-yet-unretired Justice O'Connor) that if you are delinquent on your student loans, the government can take it out of your Social Security.
LAW: The Limits of Press Freedom
This decision of the US District Court in DC, Friday, reaffirming a prior decision, is a good illsutration of the same principle that underlay the courts' refusal to allow press freedom to trump the needs of Patrick Fitzgerald's investigation in the Plame case. The court here allowed a subpoena to a financial publisher (McGraw-Hill) who published market prices, so as to permit an investigation of an energy company accused of false reporting of those prices. The take-home lesson is that when the media is used as a necessary conduit in an alleged criminal act, it can't hide behind the First Amendment to avoid giving evidence.
LAW: Solomon Sitting Pretty
SCOTUSBlog thinks yesterday's argument in FAIR v. Rumsfeld, the Solomon Amendment case, went very well for the US. Justice Scalia is pushing the idea that Congress is due particular deference on the subject of military recruiting due to its enumerated power to "to raise and support armies" under Article I.
David Bernstein had a fine point last week on why law schools should rethink military boycotts, during wartime, as a way of protesting policies adopted by Congress and the President:
A hypothetical: would it have been morally appropriate for law schools to ban military recruiters during World War II because of military segregation and discrimination, or would it have been morally superior to cooperate with the military and provide needed talent for WWII, while still urging the political branches to change the military's policies (as Truman eventually did in 1948)? . . . when people criticized Joe Louis for recruiting blacks to join the then-segregated military during WWII, he responded . . . "[t]here may be a whole lot wrong with America, but there's nothing that Hitler can fix."
UPDATE: Dahlia Lithwick has a lengthier and more colorful account of the argument, but is equally convinced that the law schools are going to lose.
December 6, 2005
Charges that Tom DeLay conspired to violate the Texas campaign finance statute are dismissed on the grounds that what he allegedly did wasn't a crime at the time, and Kos, displaying his usual grasp of factual and legal nuances, calls this "a technicality," pronouncing - in a phrase that would make George Orwell cringe - that this mere technicality is "that what is illegal now wasn't illegal under state law when DeLay committed his crimes."
Um, if they weren't illegal then, they weren't crimes. Now, some rules of criminal procedure, even ones with obvious constitutional roots, are technicalities, in the sense that they have nothing to do with guilt or innocence. The notion that you can't be prosecuted for something that wasn't against the law when you did it is not one of them, least of all in an area as heavily regulated as campaign finance law.
UPDATE: The decision dismissing the conspiracy indictment and upholding DeLay's indictment on money laundering charges is here. The court's decision seems persuasive on both grounds, that conspiracy to violate the Election Code was not a crime in 2002, and that the term "funds" in the money laundering statute can include funds paid by check.
The nutshell of what charge remains against DeLay is described thus:
If the state can prove that funds were obtained from corporate contributors by these defendants with the express intent of converting those funds to the use of individual candidates, or if the state can prove that these defendants entered into an agreement to convert monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered. The money would have become "dirty money" at the point it began to be held with the prohibited intent.
Correct me if I'm wrong, but on my understanding of the evidence, this framing of the issues is very, very bad news for DeLay, particularly the latter standard - while it may well be that DeLay wasn't particularly involved in the specifics of receipt and routing of particular funds, it seems pretty clear that he's the kind of guy who would be intensely involved in controlling where and to which candidates funds would end up being disbursed.
December 1, 2005
LAW: Tort Reform: The Market Responds
A Texas plaintiffs' firm specializing in silica and asbestos litigation lays off 8 attorneys and closes an office in response to a tort reform bill signed by Texas Governor Rick Perry that separates claims of injured from non-injured plaintiffs. The firm's managing partner says, "[w]e are not going to handle as many cases as we used to handle because of the reforms." (Reg. Req.)
November 30, 2005
LAW: A Little Diversity
The New York Observer notes Harvard Law School's tentative steps towards faculty diversity with the hiring of three right-leaning professors among 20 recent hires:
[R]ecent hires have . . . added to the conservatives' ranks. There is John Manning, 44, an expert on the separation of powers and the structure of government, who advocates for a strict reading of the U.S. Constitution, and 43-year-old Jack Goldsmith, an international-law expert known for questioning the efficacy of the International Criminal Court. Both are highly regarded scholars and former Republican administration officials (Bush I for Manning, Bush II for Goldsmith). . .
It's a start. Link via Bashman.
November 29, 2005
LAW: Dillon Stewart, Hero
Stewart, in his last heroic moments, ignored the bullet that had pierced his heart and continued pursuit of the fleeing suspect yesterday - helping nail his alleged killer.
After Stewart was shot, he still managed to tail Cameron to a garage, where police opened fire. Only then did Stewart realize he had been struck, police said.
November 15, 2005
LAW: Candid About Diversity (Jurisdiction)
Orrin Hatch, on a conversation at the Supreme Court, presumably during Rehnquist's tenure:
I attended a meeting at the U.S. Supreme Court at which some of the justices said to me, "you have to get rid of diversity jurisdiction." I stared the Chief Justice down, and said, "we’re not going to do that."
Hmmmm. Hat tip: Ann Althouse.
November 10, 2005
LAW: Discovery Dispute
This is just too funny (bad language is prominently involved).
November 9, 2005
LAW: Judge Graham
I did not know that Lindsey Graham is also an appeals judge (registration req.):
Sen. Lindsey Graham of South Carolina is also Judge Graham on a federal military court -- an arrangement that has drawn the Republican into a battle over the separation of powers.
The court Graham sits on is a lower appellate court -- the Air Force Court of Criminal Appeals at Bolling Air Force Base.
He served on active duty in Germany in the 1980s, then in the South Carolina Air National Guard before transferring to the Reserves in the 1990s. He was elected to the Senate in 2002 after three terms in the House and became a Reserve Appellate Judge in October 2003.
The reservist issue is not a new one.
November 8, 2005
According to this AP report (via ConfirmThem), the schedule for the hearings on Judge Alito worked out by Arlen Specter with the Democrats calls for hearings beginning January 9, a committee vote on January 17, and a vote of the full Senate on Friday, January 20.
Which means that the final vote will likely come either that day or the next business day - Monday, January 23. Sunday, January 22, of course, is the 33d anniversary of Roe v. Wade. Coincidence? Even if it's not, you can be sure that the timing will ratchet up the tension over the vote.
November 7, 2005
LAW: Ninth Circuit Roulette
Ace notes another bizarre decision, which would seem ripe for certiorari and reversal, discussed here - the Ninth Circuit struck down a California statute making it a crime to file a false complaint against a police officer:
The Ninth Circuit's rationale . . . is that because the statute is silent on penalizing false statements in support of the police, false allegations of abuse are being discriminated against on viewpoint grounds. . .
The case for certiorari is strengthened by the fact that the Ninth Circuit, in so holding, expressly overruled the California Supreme Court, which had held that the statute was constititional. The Ninth Circuit's opinion is here (in PDF form). Frankly, having just skimmed the opinion, I'm not even sure why the First Amendment is implicated here: the complainant is free to make the false charge of police brutality, but is penalized only for making that false charge in the process of filing a complaint that triggers a legal process. The court's reasoning unintentionally makes this point crystal clear:
An illustration drawn from this case may be helpful. At Chaker's criminal trial, the witness who observed Chaker's arrest testified that she saw no signs of excessive force during Chaker's arrest. However, had the witness made this statement to the investigator charged with investigating Chaker's complaint, knowing the statement to be false, the witness would not have faced criminal sanction under section 148.6. Similarly, had Officer Bradberry made a knowingly false statement to the investigator charged with investigating Chaker's complaint, Officer Bradberry would not have faced criminal sanction under section 148.6. It is only Chaker, who filed a complaint of peace officer misconduct complaining that Officer Bradberry mistreated him in the course of an arrest, who faced criminal liability under section 148.6 for his knowing falsehood.
[S]ection 148.6 regulates an unprotected category of speech, but singles out certain speech within that category for special opprobrium based on the speaker's viewpoint. Only knowingly false speech critical of peace officer conduct is subject to prosecution under section 148.6. Knowingly false speech supportive of peace officer conduct is not similarly subject to prosecution. . .
We note that any impermissible viewpoint-based bias present in the complaint investigation process is easily cured: California can make all parties to an investigation of peace officer misconduct subject to sanction for knowingly making false statements. Otherwise, the selective sanction imposed by section 148.6 is impermissibly viewpoint-based.
As you can see, each of the examples cited by the court involves a participant in a pre-existing investigation, rather than the person whose statements caused the state to initiate the investigation in the first place. Thus, the complainant is simply not similarly situated to the other parties, none of whom has triggered the machinery of the state by speaking.
November 1, 2005
LAW: Alito at Trial
Turns out that Samuel Alito has one thing in common with Harriet Miers that sets him apart from the rest of the current Supreme Court: he's actually tried cases. He spent four years as an Assistant US Attorney, and even tried at least one high-profile terrorism trial during his later tenure as US Attorney:
As U.S. attorney in New Jersey, a job that normally involves sending underlings into the courtroom, Alito personally prosecuted the 1988 terrorism trial of Yu Kikumura, going head to head with the noted defense lawyer, the late William M. Kunstler. Kikumura was convicted of driving with homemade bombs on the New Jersey Turnpike, intending to blow up the Navy recruiting office in Manhattan, and is serving 22 years.
Via Bashman. And William Kunstler was the sort of dogged, unpredictable and media-savvy advocate that it could be a real challenge to try a case against. I'm sure President Bush found it reassuring to have a nominee who has actually locked up a terrorist.
LAW: Smearing Judge Alito
Given the difficulty of persuading the American people that they would be justified in filibustering Samuel Alito based solely on his judicial philosophy, it's not surprising that some on the Left are looking to smear him instead with bogus ethical charges. Witness this latest attempt, from AmericaBlog:
Another ethically challenged Bush appointee according to the Washington Post:Three years ago Alito drew conflict-of-interest accusations after he upheld a lower court's dismissal of a lawsuit against the Vanguard Group. Alito had hundreds of thousands of dollars invested with the mutual fund company at the time. He denied doing anything improper but recused himself from further involvement in the case.
Supreme Court nominee Samuel J. Alito and Justice Antonin Scalia share more than just ideology; they also share a resistance to removing themselves from cases where they have a conflict of interest.
Now, my first reaction was that this was a case of economic illiteracy by these critics. After all, a mutual fund isn't like another company; mutual funds are managed by an investment advisor, and so an investor in the fund is more in the position of a client or customer of the advisor. Normally, if the investment advisor gets sued, therefore, it's of no direct concern to the fund investor, who has invested with rather than in the fund company.
I went and did some digging, though, and it turns out that the charge isn't illogical, just silly. The original Philly Inquirer story explains why the unusual nature of the Vanguard funds made this different from the usual claim against a mutual fund company:
Alito said he believed his Vanguard holdings did not constitute a conflict because they were investments in mutual funds. As such, he said, he was merely an investor in Vanguard, not an owner of the company.
Now, it appears that Judge Alito may well have forgotten that fact, as I did. But the notion that the case involved any kind of malfeasance is nonetheless absurd. Even if the plaintiff had won her case, the economic impact on Vanguard would be negligible, and certainly not enough to affect the judgment of a shareholder of one of its many funds; the case involved a dispute over $170,000, compared to hundreds of millions of dollars in the Vanguard funds, barely a blip on Vanguard's radar screen. And even leaving aside the fact that the recusal standard is not as clear-cut as the critics suggest, the case fit the classic profile of a losing battle where a plaintiff with no case on the merits tries to gin up something like an ethical complaint against the judge to keep the case going:
Maharaj contended in her suit that Vanguard had improperly released funds from her late husband's retirement account in 1998 to pay a Massachusetts judgment. Vanguard said it was ordered by a Massachusetts judge to release the money.
Acting as her own lawyer, Maharaj, 48, has spent the last seven years, since her husband's death in 1996, battling unsuccessfully in the courts in Philadelphia and Massachusetts.
The article goes on to note that the litigation initially arose from a business dispute involving Maharaj's husband and a Massachusetts court's conclusion that the husband had fraudulently transferred assets to the couple's Vanguard account to avoid paying a judgment. The lower court decision notes that the Massachusetts court had enjoined Maharaj from further litigation. The United States Court of Appeals for the First Circuit had upheld an order compelling Maharaj to pay attorneys' fees as far back as 1997. After Judge Alito recused himself in an excess of caution, the plaintiff lost again before the new panel. In short, the ethics complaint falls under the heading of "grasping at straws".
Nobody's perfect, and judges do make small oversights. But Alito had no actual conflict of interest - the amount of money involved, in proportion to the size of the Vanguard Funds' holdings generally, meant that the case could not have affected a Vanguard investor, regardless of how large or small the investor's stake in Vanguard Funds was. Nor was it unreasonable for him to act as if Vanguard was covered by the general policy of the federal courts regarding mutual funds, although this assumption turned out to be incorrect. Nor, as it turned out, was there any merit whatsoever to the underlying lawsuit, brought by a litigant who'd spent years trying to avoid paying a legitimate judgment. In short, the critics are all wet.
UPDATE: The Washington Post says Alito had been asked about Vanguard issues 12 years earlier at his hearing, and promised to recuse himself, and that the White House ascribes the non-recusal to a failure to flag the case on the Third Circuit's computerized conflicts system. I still fail to see why this is anything but an honest and very minor mistake, given the fact that this was a routine slam-dunk case with no possibility of affecting Alito's finances.
October 31, 2005
LAW: Judge Alito's College Days
"Sam intends to go to law school and eventually to warm a seat on the Supreme Court"
Orin Kerr links to this profile of Samuel Alito from his college days - he graduated from Princeton in 1972. Judge Alito was in ROTC, a fact that will no doubt unsettle the plaintiffs in the Solomon Amendment case if he is confirmed. And yes, that's a picture of him in college. Not that, er, I should talk.
LAW: Not Bashing
Unsurprisingly, preeminent appellate law blogger Howard Bashman is thrilled with the nomination of Judge Alito, a judge he knows well; see here, as well as more on Judge Alito from Bashman here, noting Judge Alito's role in changes to the Federal Rules of Appellate Procedure.
LAW: Alito's Way
At 8 a.m. this morning, President Bush is scheduled to nominate a successor to Justice Sandra Day O'Connor for the third time (bear in mind that John Roberts was initially tapped to replace Justice O'Connor), and it will, in fact, be Judge Alito of the Third Circuit. As I've said, Judge Alito isn't necessarily my first choice, but he's unquestionably qualified, with a wealth of experience (bio here), including 15 years as a federal appeals judge and 13 with the Department of Justice, first as a trial-level prosecutor for four years in New Jersey, then in DC with the Solicitor General's office and as a deputy assistant Attorney General during the Reagan years (1981-87), then as US Attorney for New Jersey from 1987 to 1990. He's a fine choice and a guy who shows every sign that he'll serve with distinction and, like John Roberts, can be expected to exceed the existing standards for Supreme Court nominees in terms of his accomplishments and brainpower.
Harry Reid is promising a fight. One popular caricature of Alito is the monicker "Scalito," hung on him by some journalists, but I gather he's really not as similar to Antonin Scalia as conservatives would like or liberals would fear; we'll learn more in the days to come, but it does seem that the nickname plays off of his ethnicity and journalistic laziness rather than any genuine similarity in temperament, style, or declared philosophy.
UPDATE: Welcome visitors! Look around the site, this is just the tip of the iceberg of posts on the Alito nomination.
October 30, 2005
LAW: Alito and Casey on Abortion
The buzz still seems to favor Third Circuit Judge Samuel Alito as the likely next judicial nominee. Judge Alito's not necessarily my first choice, but he'd be a good guy to go to war behind, if the Democrats prove intent on a war, which they may if they are calculating that Bush is weak and can be beaten regardless of the nominee's quality. That's not an insane calculation, although if that's the tack they take, the Democrats should realize that they are picking a fight that has at least the potential to play directly into Bush's best hope for re-energizing his base and regaining his lost momentum.
Anyway, Ground Zero in any battle over Judge Alito would be his dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, which didn't reach the more explosive question - addressed by the Supreme Court - of whether Roe v. Wade should be overruled. Instead, Judge Alito found that the Pennsylvania statute at issue was constitutional under existing standards set forth in prior Supreme Court decisions. As Patterico explains about that conclusion:
[A]s Justice Scalia noted in dissent, "the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions." In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can't blame Judge Alito for that.
(Emphasis in original).
But what's even more interesting about potentially staging a big fight over Alito's ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as "extreme," "outside the mainstream," etc. - Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn't violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that's gonna be a question that will put him in an awfully bad position.
And Karl Rove will smile.
October 29, 2005
LAW: Initial Thoughts on the Libby Indictment
1. Were I Libby, I would choose a bench trial. The judge, Reggie Walton (not this guy) is a Bush appointee and was previously appointed to positions by Reagan and Bush I. I don't know much about him and don't mean to suggest he'd go easy on Libby, but that beats the heck out of a D.C. jury when you are a prominent Republican, and Jewish to boot (at least I assume Libby is Jewish).
2. Man, this is a strong indictment. I've seen perjury indictments in the past and know a little about the law in that area, and unlike the DeLay indictments, Fitzgerald has nailed down all the legal requirements here, such as detailing the precise statements and setting forth why Libby's answers were material to the investigation.
Libby is basically accused of telling radically different stories to the grand jury and to investigators than the reporters (Judith Miller, Tim Russert and Matt Cooper) told, plus his story is apparently inconsistent with what he can be shown to have known based on his conversations with various government officials, including Dick Cheney, "a CIA briefer," Libby's "Principal Deputy," Ari Fleischer, the Counsel to the Vice President, the Assistant to the Vice President for Public Affairs, and "Official A," who may or may not be Karl Rove. If you are keeping score at home, that's ten witnesses, and that's before we get to the documents (Tom Maguire suggests that even Libby's own notes may have contradicted him, and that his attorneys should have known this). If all this holds up - and given Fitzgerald's reputation, I'd guess at least most of it will - Libby is toast.
3. Oh boy, the trial is gonna be interesting unless they find a way to close the courtroom (which would trigger immediate lawsuits). Just look at that witness list. Russert, Miller and Cooper have to be the star witnesses, but if Fitzgerald's theory is that the untruth of Libby's statements is shown partly by the fact that he had prior knowledge of Valerie Plame and her status as a CIA employee, and the first evidence of that is a conversation with Dick Cheney . . . how can Cheney not be a witness in this case?
4. Of course, as everyone has noted, the indictment states that Plame's employment was "classified" but does not suggest that she was a covert agent at any time that would be relevant to any of this.
5. Libby's behavior, if as alleged, seems incomprehensible unless (a) he was reckless in his certitude that reporters would never testify, (b) he's a compulsive liar, or (c) as Andrew Sullivan suggests, he was worried that Cheney himself would get in trouble and decided to fall on his sword for the Vice President. I suspect (a) is part of the story, but I also think that, if it is the case that Cheney told Libby that Plame worked for the CIA and that started the ball rolling, Libby was indeed worried about protecting his boss, whether or not Cheney knew anything about her having ever been covert and whether or not Cheney had any further involvement in leaking her name.
6. For the record: yes, perjury and obstruction of justice are serious crimes. I believed that in 1998, and I believe it now. There is such a thing as a hypertechnical perjury charge, but this isn't it, any more than the charge against Clinton was; in each case, the witness deliberately set out to obscure facts the tribunal was entitled to know (the difference being that Libby hasn't also been charged with inducing other witnesses to lie). Good to see that many Democrats and liberals have now decided to agree with those of us who have taken that position all along (see this NR editorial).
LAW: Alito Rising
ConfirmThem has the latest hot speculation that Third Circuit judge Samuel Alito, nicknamed "Scalito" by some journalists, is going to be the replacement nominee for Harriet Miers, including word that Alito is in Washington this weekend. Alito is regarded as a real lawyer's lawyer, much like Roberts, rather than an ideological type, but if Bush is - as has been speculated - mainly interested in getting nominees who will uphold Administration policies on detainees, he is probably reassured by Alito's background as a prosecutor.
This profile has some observations on Alito, and reminds me of the fact that Alito probably benefits, in this process, from being close to Michael Chertoff, the Homeland Security chief who succeeded Alito as US Attorney for New Jersey and served briefly as his colleague on the Third Circuit.
October 28, 2005
LAW: Sun Tzu and the Art of Judicial Nominations
It's too early to say with certainty what the long-range impact will be of conservatives leading the charge to cause the withdrawal of Harriet Miers' nomination. But that won't stop me from offering two lessons that President Bush should remember for the next nomination:
1. Competence is Non-Negotiable
Traditionally, the ideal with regard to the Supreme Court was to pick the best-qualified candidate from among the pool of judges, scholars, practicing lawyers and politicians who would be politically agreeable to the President. Granted, that ideal was often discarded in practice, but it was seen as desirable to follow it. There are many examples of such nominees - John Roberts, Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, Felix Frankfurter, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes.
There was always one countervailing pressure - the desire to pick a young nominee who would sit on the Court for a long time, the most obvious example of which was Clarence Thomas, who even after 15 years on the Court is younger than Harriet Miers and the same age as some of the candidates now being considered. As it turned out, Thomas was more than sufficiently skilled for the job, but his qualifications were admittedly somewhat thin at the time (I'll leave for another day the issue of why Thomas' qualifications were never as thin as Miers'; even then, once you accept the political reality that the first President Bush wanted a black nominee, there's little doubt that Thomas was the most qualified black conservative available at the time).
But the Borking of Robert Bork led to a second, new pressure against a highly qualified nominee, a pressure that had not existed before: fear that a nominee with a long record of judicial decisions and scholarly writings could be picked apart, fairly or unfairly, on the basis of that record. Thus, scarred by the Bork disaster and successive attempts to repeat the experience at the appellate level, the last four GOP Supreme Court nominees (Souter, Thomas, Roberts and Miers) have all been "stealth" candidates with limited paper trails.
The collapse of the Miers nomination is being spun in some quarters solely as an ideological battle, but I think liberal law professor Jack Balkin said it best:
The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.
(Emphasis added). Of course, it goes without saying - as could be seen by the bipartisan nature of questions about Miers' qualifications - that the competence issue was one that resonated with people accross the political spectrum, not only giving conservatives nervous about her philosophical leanings an excuse to oppose her without objecting solely on ideological grounds but also giving Democrats a free excuse to oppose her at a later date without political consequence if it became useful to do so.
Howard Bashman sounded a similar theme, calling Miers' withdrawal "A victory for [conservatives; liberals; elitists; those who demand highly qualified nominees to the U.S. Supreme Court; bloggers]?" (See also this pre-withdrawal Bashman column). Andrew Sullivan, who'd been critical of the nomination, also focused on competence, which as you will recall was the deal-breaker for me and many others on the Right:
This is a big coup for the Washington conservative intellectual establishment and the counter-intelligentsia that has been deliberately built to tackle the left's academic monopoly these last couple of decades. They wanted one of their own on the Court, and they'll get one. At the very least, they have shown they have a veto against anyone too patently unqualified. Given Miers' credentials and post-nomination performance, we may have reason to be grateful for their clout.
My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.
2. You Can't Win A Nomination Fight You Aren't Willing To Lose
Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called "nuclear option" and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the "nuclear option"; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle - the Senate and the public.
Because the public's view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President's troops in the field. A second corollary is that "the public" includes all those forces outside government that influence elected officials - the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.
Understanding, then, the conditions of the battlefield, let us examine the lessons of battle that President Bush failed to absorb with the Miers nomination but needs to remember in his next choice. First, consider the objectives and the alternatives. The President's #1 goal should be to get a good nominee confirmed, with a good nominee being one who will be consistent with the stated philosophy of the President and his party and who, hopefully, will provide some measure of political benefit by confirmation - by satisfying the President's supporters, by meeting the approval of potential supporters of the President's agenda, and/or by reducing or dividing the intensity of the opposition.
But considering the benefits of confirmation is only half the battle. With fewer than 60 Senators committed to the same goals as the President in terms of philosophy and political objectives, the President must also consider the possibility of defeat and must choose a nominee who will also provide political benefits if the President's nomination is defeated. Because the first rule of any potential battle is that weakness invites opposition.
Recall Sun Tzu's dictum about war:
To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting.
Unlike some conservatives, I don't believe the President needs a fight over a nominee; while I would in some ways enjoy such a fight and think it would provide some benefits, I would be happier to get a good nominee confirmed without a fight, as with John Roberts.
But consider how Bush avoided a major fight over Roberts. Roberts was nominated not only with the intention of picking a nominee who would mollify the moderate Senators (liberal Republicans, conservative Democrats) who determine the immediate conditions of battle. His nomination also avoided a fight because, if Democrats had filibustered him, they would have looked terrible to the public. Because Roberts was so obviously qualified and had no ethical or other non-ideological problems, the only possible basis for opposing him was his judicial philosophy and the contention that his personal beliefs would impact that philosophy. Particularly given that Roberts presented that philosophy in fairly non-threatening terms, moderate voters would have seen this as pure obstruction. Meanwhile, Roberts was sufficiently reassuring to conservatives that he was viewed as a potential improvement on the court, and because of his relative youth, he was seen as a potentially lasting improvement. A filibuster would have ended up backfiring on the Democrats, and probably could not have been sustained for long in the face of public disapproval.
Thus, the Roberts fight would have been a good fight to lose - and precisely because it was a fight that would help Bush if he lost it, he never had to fight.
The Miers battle was precisely the opposite. Bush evidently regarded Miers as a good fight to win, as he would get a Justice he had faith in. But he failed to consider the fact that she was a terrible fight to lose. As Josh Marshall, looking across the battlefield from the opposite side, put it:
Nominations can have dynamics similar to those of political scandals.
Nobody but the President had a first-hand basis to believe that Miers was well-qualified for the job or to believe that Miers would improve the Court in terms of her judicial philosophy. Accordingly, if - as has happened - Miers was defeated, nobody but Bush himself would give Bush credit for having put forth such a nominee in the first place. Indeed, one of the predominant arguments of supporters of the Miers nomination from Day One was that Republicans should support her because the President had put himself in a position where it would be damaging to lose.
This, of course, was evident as well to Democrats, which meant that they knew from early on that they would have the initiative. With the President's own supporters divided and many of his best troops switching sides, a battle would be on unfavorable turf for the White House. With non-ideological grounds available to oppose the nominee (not just competence but the plausible charge of cronyism), the Democrats could choose to oppose - if they wanted - at their convenience without fear of reprisal. With Republicans fighting among ourselves, Democrats could afford to wait and choose the time and place to come out in open opposition. In short, by picking a nominee whose qualifications were not self-evident and who had few genuinely committed supporters, Bush created a battlefield on which he could gain nothing by losing, while the Democrats would lose nothing by winning. By seeking compromise, he ended up compromised. In the end, he was better off retreating entirely from the field and picking a new nominee.
Nor was internal opposition to Miers at all unpredictable, especially given her thin qualifications; I'll explore this at greater length another day, but while Republicans have as many different internal fault lines as Democrats, what gives the GOP a much higher level of cohesiveness is its priorities, the fact that conservatives and Republicans will accept a lot of things they don't agree with as long as the party unites behind the Big Three of national security, lower taxes and the courts. Bush could win a battle over, say, expanding Medicare by invoking the need for party unity to accomplish more significant goals. But picking a Supreme Court nominee who is perceived as unacceptable goes to the core of the party's purpose, and guarantees internal opposition. A Republican president can not hope to win a Supreme Court fight by expanding the battlefield to promise ofsetting benefits on other issues; he needs to win it on its own terms.
So no, in selecting his next nominee, Bush doesn't needs to pick a fight. But he does need to pick a nominee who is worth fighting for. If you don't pick a nominee you want to fight over, your opponents will know they can beat you by fighting.
As I have written before, I personally would prefer that Michael McConnell, the distinguished Constitutional scholar, veteran Constitutional and commercial appellate litigator, and now Tenth Circuit judge, be the nominee. McConnell might or might not provoke a fight, but it's a fight on Bush's terms, and one Bush could lose with his head held high on the basis of having picked a supremely qualified candidate (McConnell knows Con Law even better than Roberts), well-liked among Bush's core supporters and respected by his opponents. If Bush prefers someone else among the many qualified candidates available, he should look for someone about whom the same could be said. But he needs to remember that only by choosing battle can he hope to avoid one.
UPDATE: RedState says Third Circuit judge Samuel Alito will be the pick. From what I know of him, that sounds good.
LAW: Revisionist History
The Democrats are now doing with the Harriet Miers nomination that thing they do best . . .
First, several prominent Senate Democrats are now claiming that they were just fine with Miers, so as to blame "the extreme right wing" for doing in her nomination. As Carol from ConfirmThem points out here and here, this is in direct contradiction to their own previous statements about Miers.
Second, Kos now takes the view that "Senate Democrats have helpfully emailed around the list below of GOP passion for the "up or down vote". Too bad the Miers fiasco has taken away that talking point from their repertoire." As John Cole explains slowly and in (hopefully) small enough words, there was not a peep from Republicans about blue-slipping or filibustering Miers, or even about delaying the scheduled date for her hearing. Those of us who called for her withdrawal simply felt that she deserved to be voted down, and thought the president shouldn't let the bleeding continue for another month. This is not even close to the same thing as filibustering a nominee who has the support of a majority of the Senate.
And, hey: we were all told, repeatedly, by Miers' friends that she was opposed to abortion and likely to vote to overturn Roe v. Wade. Are Kos and the Senate Democrats now admitting that they would have permitted a floor vote for, and possibly confirmed, a nominee who was - in Barbara Boxer's words - "anti-choice"? Because maybe now they can retire that talking point too.
October 27, 2005
LAW: Miers is Out
CNN reports. A tough day for the White House, but tough days happen in politics. The party, the president and the courts will be stronger for this.
October 26, 2005
LAW: 22 Questions for Hugh Hewitt & Co.
Hugh Hewitt has propounded 9 questions for Miers critics on the Right:
Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
I was going to post a detailed response, but Patterico, Dale Franks and Jeff Goldstein have said much of what needs to be said in responding to Hewitt. I may update this post later with my own answers, if I get the time.
The Limits, if any, of Loyalty to Party Leaders
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?
3. Is the GOP worse off because John Tower's nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?
4. Is the GOP worse off because Republicans and conservatives - pundits, bloggers, and elected officials alike - participated in forcing Trent Lott to step down as GOP Senate Majority Leader?
5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?
The Nominee's Qualifications and What Will Be Learned at the Hearings
6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?
7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?
8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?
9. Please cite examples of Harriet Miers' writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.
10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers' qualifications and philosophy that we do not already have?
Making the Left's Arguments
11. Do you believe that continuing to tout Miers' gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?
12. Do you believe that continuing to tout Miers' religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?
13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?
14. Are Harriet Miers' personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?
15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?
Back At You
16. How important is it that Roe v. Wade/Casey be reversed?
17. Which five precedents do you think are in most pressing need of reversal?
18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O'Connor?
19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?
20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination - including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will - are important parts of the GOP's ability to win public issue debates and elections?
21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?
22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
UPDATE: Xrlq offers answers.
October 24, 2005
LAW: The Elitist
I have enjoyed and respected Hugh Hewitt's contributions in the past, even if he is the Josh Marshall of the Right, a guy who is not just the most thoroughly partisan of pundits but one who seems to draft every post with the express goal of moving the chains in his side's direction.
But Hewitt has really gotten on my nerves, as well as those of a lot of other conservatives, with his bareknuckled assaults on critics of the Miers nomination. Among these arguments, he has spent weeks arguing that those of us who want Supreme Court Justices to actually know constitutional law are misguided elitists; con law, Hugh argues, is just so simple that any half-decent lawyer can do it. It is, if anything, anti-democratic to insist that only those familiar with the body of constitutional law can serve on the Court. A curious argument coming from a man who teaches constitutional law, but that's his position, and he's stickin' to it. Or was.
Saturday, comes Hewitt to take on conservatives concerned about Miers' past support for racial preferences at the Texas Bar (Patterico has more on this topic). Here is his response:
I see many on the web are exercised about Harriet Miers' support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don't know what Brentwood is? Or the state action doctrine? Not many people do. But those that don't ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.
For a guy who thinks Supreme Court Justices don't need to know Con Law, Hewitt sure is quick to use his own expertise in the area to pull rank over pundits who don't know Con Law.
UPDATE: Jonah Goldberg makes the point succinctly as to why the requirements for having informed opinions is lower, not higher, than the standard for getting the job: "Ben Affleck deserves an Oscar more than I do, but that doesn't mean he deserves an Oscar."
October 23, 2005
LAW: Fried on Miers
My constitutional law professor weighs in on the Miers nomination, and unsurprisingly, his views and priorities are about the same as my own on the perils of a Justice who can't write:
A justice without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose suited to those intricacies will flounder in a number of ways that would be disastrous for the law. Such a justice might rely on instincts undisciplined by clear analysis and therefore over time spin a web of confusion which increasingly will entangle that justice, the justice's colleagues and a perplexed public. Or that justice might fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the court.
Via Instapundit. Read the whole thing.
October 22, 2005
LAW: Continuing Conflict of Interest?
A reader asks Professor Bainbridge whether Harriet Miers should resign as White House counsel because of the risk that further actions as White House counsel could lead to further recusal issues down the road on the Court. As a practical matter, I doubt she's doing much counseling at the moment, so this is somewhat theoretical, but it would probably be prudent to take a formal leave of absence (sitting judges, of course, don't step down for a more practical reason: they don't want to give up their current life-tenured jobs).
LAW: Will on Miers
Nothing terribly new here, but a few interesting points from George Will, who from the start has been one of the implacable foes of the Miers nomination:
Can Miers's confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.
October 21, 2005
LAW: It's The Opinions, Stupid (Or: Why I'm Off The Fence And Opposing Miers)
After weeks of trying to keep an open mind about the Harriet Miers nomination, I've concluded that the Senate should vote down Miers - if her nomination isn't withdrawn first - and force President Bush to nominate someone else. Let me explain why.
Now, as you will recall, I was initially disappointed with this nomination, but then John Roberts wasn't my first choice either. You need more than disappointment at the absence of better candidates to justify actively opposing the confirmation of the president's chosen nominee. And there were some things I liked about Miers: I do believe that it would be a good thing to have a Justice who has practiced law at the trial-court level.
The Confirmation Standard
I started off with three big-picture questions about Miers, and five more specific concerns. The three big picture questions:
A. Do I believe Miers would be a good Justice in terms of things like legal skill, proper attention to relevant detail, and understanding of the need for clarity?
B. Do I believe Miers would be acceptable to me as a conservative, in terms both of following an acceptable method of deciding cases and generally acceptable results?
C. How certain do I need to be of #1 and #2 to support the nominee?
(B, of course, is shorthand here - if I accept the nominee's philosophical/methodological approach, I'm willing to live with the possibility of some results that will make me unhappy. The more ad hoc or unpredictable the nominee's approach, by contrast, the more worried I get about particular cases).
Question C is the tough one, if you think seriously about the question of what role the Senate - and those of us who comment on these things, who can (once the nomination is made) only look at this from the perspective of what the Senate should do - should play in the confirmation process. On the one hand, the Senate's job is to decide if the nominee is acceptable and then vote on her - not argue over who might have made a better Justice. The president's choice is entitled to some deference, as he gets to choose. On the other hand, appointments to the Supreme Court are enormously important, mistakes are impossible to fix once confirmed and can have consequences reaching decades or centuries into the future, and there is one specific area - the president's choice of close personal friends - that warrants less deference, as it was a particular item of concern to the Founding Fathers. In light of that concern, I believe more scrutiny is required of Miers' qualifications than would be the case if she were not a close personal friend of the president.
As to ideology, my feeling all along has been that presidents are entitled - indeed, obligated, if you take seriously the idea that legitimacy flows from the people's approval of the principled positions taken during an election campaign - to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal - as far as the issues that are decided by courts are concerned - but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s - I believe Brennan, Blackmun and Marshall all did this - who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court's orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.
In Bush's case, he unquestionably campaigned and has promoted himself in office as a social conservative - pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian - i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations - might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. This is why I think that, of the frequently discussed potential nominees, Janice Rogers Brown is the only one who might legitimately be voted down on ideological grounds (although I understand the argument that the charges against her are overstated; I'm speaking hypothetically here).
The flip side of that is that the president's own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president's own stated philosophy. And that has been a big concern with Harriet Miers.
The Trouble With Harriet
Turning to specific questions about Miers, I've raised a number of concerns about her - click here and scroll down. These boil down to five more specific questions:
1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperament, indicate that she will drift from her moorings once on the Court?
I'm inclined to give Bush some benefit of the doubt on the temperament issue, as he knows her well, but the lack of experience with constitutional law worries me, and worries me all the moreso as she seems to be fumbling her way through meetings with senators and botching her questionnaire by giving, at best, opaque answers about constitutional subjects. As I've explained here, and as Justices Scalia and Rehnquist explained here, while we certainly do not need nine constitutional law professors on the Court, it is simply not acceptable to have a Justice who is a completely blank slate as far as her experience with the constitution. In fact, this goes to Question C above: with John Roberts, even though we had to take on faith to some extent his philosophy of judging and of the constitution, there was no doubt from his resume and experiences that he had had more than ample time and opportunity to think deeply about those issues, and thus the likelihood is much less that he would find himself adrift (or overwhelmed, like Lewis Powell) once on the Court.
And yes, this ties into the question of ideology. A Justice who is a known quantity, to herself and to the world, is far more likely to be predictable in how she approaches the law, and conservatives have labored too long and too hard to reclaim the judiciary on behalf of pro-democracy judges to entrust the job to a complete cipher.
2. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court?
I've covered this point before. To use a football analogy, I want a Justice who can see the whole field, not a hedgehog who burrows into one narrow issue and loses track of how it fits into or affects the next case. I'm deeply skeptical that Miers has the breadth of understanding to do this.
An example of what I'm talking about is a specific case I've blogged about before here, and which is on this term's docket: FAIR v. Rumsfeld, the Solomon Amendment case. The case will determine whether the lower court properly issued a preliminarily injunction against the enforcement of the policy of denying federal funds to universities that do not allow military recruiters equal access to that provided to civilian employers. Just in this one case, we have issues of the proper standard applied to compelled speech, freedom of association (the Third Circuit claimed that its decision in favor of the law schools was compelled by the decision holding that the Boy Scouts couldn't be forced to hire gay scoutmasters) and the role of academic freedom, which the Court has treated very inconsistently (recall the distinction between the VMI case and the Michigan affirmative action cases); to what extent the War on Terror makes military recruiting a compelling public interest; to what extent the Court should defer to legislative judgments about the needs of military recruiters; and whether Congress can do indirectly through the Spending clause what it might not be able to do directly, as well as whether the particular program is rationally related to the spending at issue. (This is aside from the procedural issues like standing and the standard applied to an appeal from an order denying a preliminary injunction). And that's just one case. We need Justices who can not only resolve a case like this but do so in a way that makes more rather than less sense of the existing constitutional framework of these various doctrines. And this leads us to my third question, the one that is the deal-breaker.
3. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law?
Here's what I, as a practicing lawyer, want, as far as qualification and competence: a brilliant or, at least, a clear and incisive legal mind, someone who can grasp the many, varied and often complex issues - constitutional and statutory - that come before the Court. I want someone who can write opinions that are internally coherent, make sense, and reduce rather than multiply litigation over their application. I want a Justice who can consider and reject the best arguments against the Court's ultimate disposition, rather than dodge, sweep aside or leave unsettled alternative arguments for the opposite outcome. I want someone who understands that, because the Court takes but a small fraction of the cases raising a particular legal principle and sometimes takes years to revisit an issue, the Court's job is to settle unsettled questions of law.
Now, when we are discussing Miers' qualifications, it is sometimes objected that critics of Miers are being elitist. But let us make one thing perfectly clear: I'm not looking principally for credentials, I'm looking for skills and a base of substantive knowledge. The credentials are just markers that help us determine how sure we are that the nominee has the skills needed to do the job. As I've discussed before, no one of Miers' credentials, or omissions from her credentials, is the problem; the problem is that taken as a whole, her experiences provide no guarantee that she possesses the necessary intellect and the ability to write with clarity and decisiveness sufficient to give meaningful guidance to litigants and lower courts.
One of the chief lines of argument made by Miers' defenders goes like this, from Thomas Sowell:
The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.
Miers is headed for SCOTUS, guaranteeing decades of anguished posts by members of the Bos-Wash Axis of Elitism on why her votes don't count as much as their long ago criticisms.
I understand full well the desire to get the votes we want on our side. But the Supreme Court is about more than just votes. This is not the House of Representatives, where you just shut up and vote; it's about the Court's written opinions. Of course, writing style and ability matters. Because words are the Justices' only weapons.
The Supreme Court decides, if I recall correctly, something like 90 cases a year. Most of those cases, standing alone, don't matter much to the rest of us - who cares if Norma McCorvey couldn't get an abortion, or Jennifer Gratz couldn't get into Michigan Law School? With the exception of the occasional Bush v. Gore, Watergate or Pentagon Papers case, the Court's decisions matter because of the way its opinions govern the thousands of similar cases that don't come before the Court. And the way in which the opinions are written matters very much to how broadly or narrowly the Court's decisions are written, or whether those decisions are persuasive to future Justices. So yes, Miers' writing style is in fact an essential job requirement.
Now, like the questions about Miers' knowledge of constitutional law and her judicial philosophy, my initial inclination was to wait and see. We knew that Miers had been a successful commercial litigator, and many (though not all) successful commercial litigators are indeed brilliant and persuasive writers. So, I've been waiting on the evidence.
I've finally reached the point where I can wait no more. First, we saw that Miers had a fairly thin record (see here and here) of actually litigating, on appeal or to other published dispositions, cases raising the kind of issues that I and other lawyers grapple with on a much more regular basis. I don't care that she hasn't tried a ton of cases, a point Beldar has aptly rebutted, but the notion that Miers has been out there litigating cutting-edge legal issues as her bread-and-butter for years and years seems inconsistent with her record.
And there was also the issue of the near-complete absence of observers who could testify with any kind of superlatives to Miers' intellect and writing. Just look at Beldar's glowing assessment of two of his mentors in practice. I can certainly think of lawyers I've worked with and observed that I'd describe in similar terms. And there was no shortage of people willing to step up and not only say, but say with extensive supporting specific examples, that John Roberts was a man of great intellect and talent, a clear and persuasive advocate. By contrast, Miers' defenders (see also here) always seem to describe her as "competent" or "well-prepared" or "ethical" - all wonderful qualities in a lawyer, but they keep leaving me wondering, is this the best anyone can say? And aren't there hundreds, maybe thousands of practicing lawyers about whom you could much more easily find judges, colleagues and even opposing counsel to speak in far more glowing terms? (Where are Miers' old partners in this? We've hardly heard a peep from anyone who knows her work really well other than Nathan Hecht).
Then, we started to get a glimpse of Miers' actual writings, discussed here. And that was the last straw. Maybe it's just that I have very high standards, but as I've said before, I've encountered successful lawyers before who just weren't clear and persuasive writers, or who were sloppy thinkers and interpreters of the law. And so far, everything we've seen of Miers' writings suggests that the woman simply is not the kind of writer I would consider a good summer associate at my law firm, let alone a Supreme Court Justice. And that can't stand. The Court is too important to the system of justice to let someone in the door who lacks the minimal competence to do the core part of the job: explaining the law.
In short, I can no longer maintain anything but the most hypothetical hope that she would blossom into, say, another Clarence Thomas on the bench. The evidence is now clear that Harriet Miers would be, at best, a good follower on the Court, a person who brings some practical perspectives to some of the issues before the Court, but exacts a price in the quality of the opinions she would write and - as happens with these things, when opinions must meet the approval of all the Justices who join them - perhaps in the quality of opinions she would agree to join as well.
(And for those of you who compare her to Bush: don't. Verbal intelligence and the ability to write persuasively are not essential job requirements of the presidency. They are essential job requirements for the Court. The president can order soldiers into battle, and they will go. When the Court says "jump!" nobody jumps unless it is clear what they are being told to do and how high to go. Written opinions are the only soldiers the Court has at its disposal.)
4. Is Miers too close to Bush to rule against his Administration when - as all governments are wont to do, even good ones - it exceeds its legitimate authority under the Constitution?
5. Will Miers have to recuse herself in too many cases?
I'll skip over these questions because I came to my conclusion based mainly on the evidence of her qualifications for the job. But these are also legitimate issues with Miers, especially #4, and I will no doubt return to them as we go along.
You will note what I have not even discussed here: the politics of the nomination and the consequences of rejecting Miers. Yes, those are important. But Miers simply does not meet the minimal standards for confirmation to the Court. And as a practicing lawyer who will have to live with the consequences of this nominee if she is confirmed, I can't support that, no matter what the judge's party affiliation or her presumed ideology. President Bush should withdraw this nomination. And if he doesn't, the Senate should vote NO.
UPDATE: To make sure NZ Bear picks this up: I oppose the Miers nomination.
October 20, 2005
LAW: The Federalists
Dean Barnett has an article in today's Weekly Standard Online defending the Federalist Society, and quoting yours truly.
October 19, 2005
LAW: The Writing Sample
Beldar offers up, as a sample of Harriet Miers' persuasive writing, a letter she wrote to George W. Bush (when he was governor of Texas) urging him to veto legislation that would prevent the newly Republican-controlled courts from regulating attorneys' fees, specifically those charged by the plaintiffs' bar in contingency-fee cases. I agree wholeheartedly with Patterico that this is another unencouraging sign (to say the least) about Miers' writing abilities. Check out the last two full paragraphs:
The passage of this proposed law squarely raises the issue of the special interest laws [sic] for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. What possible justification can exist for this law? There may be attempts to explain or provide justification. Those of us who are knowledgeable about the legal community know that this law is a special interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.
Where to begin? Leave aside the grammatical disaster that is the phrase, "[t]he passage of this proposed law squarely raises the issue of the special interest laws . . . " We have the mealy-mouthed phrase "those who have the wealth and power to cause to be passed self-protective legislation," rather than coming right out and saying, in a declarative sentence, "the contingency fee bar" or some such clear descriptive phrase. Then, having gone not nearly far enough, Miers backtracks: those who, two short sentences earlier, could be confidently asserted to "have the wealth and power to cause to be passed self-protective legislation" are suddenly only "perceived to wield power and influence." And while the bill will, for reasons unstated, "never work" (at what? Miers does describe some specific bad effects earlier in the letter, but never addresses the bill's actual stated purpose, and seems to assume that it actually will work at the purpose of benefitting people with actual or perceived power or influence), it nonetheless will, at some future date, "continue to this day" (in the future? or are we in Doc Brown's DeLorean now? actually, it's the "interests" that "continue to this day" to do bad things, but that connection is lost in Miers' tortured syntax) to cause the bill's proponents to be "smeared with legitimate criticism" (!!).
David Brooks' grim assessment of Miers' writings as the head of the Texas Bar were bad enough, but one can understand that a bar association president's job is to say nothing, and most rational people wouldn't put much effort into writing those letters. But this was an attempt to persuade the governor of the state to veto a bill, and yet we get instead this train wreck of euphemisms, tortured grammar, and laughable solecisms. I do not look forward to spending the rest of my professional career reading opinions like this, and this sort of thing pushes me one step closer to throwing my lot in 100% with the anti-Miers forces.
UPDATE: Patterico also directs us to this critique along the same lines.
SECOND UPDATE: Another example, from Patterico, of muddled thinking and/or bad writing from Miers.
LAW: Quick Links 10/19/05 (Supreme Court Edition)
*The now ironically named ConfirmThem makes a point I had thought about with regard to Paul Mirengoff's post on how the Democrats could filibuster Harriet Miers if, in an effort to rebuild her support on the Right, she makes clear that she would vote to overturn Roe v. Wade:
The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.
Now, personally, as I've argued before, I don't have a problem with filibusters of judicial or executive nominees per se; my objection is to open-ended, indefinite filibusters designed to prevent a vote once it's clear that the nominee has the votes to be confirmed. But if the GOP allows such a filibuster of Miers, the Democrats will have a precedent they can point to in the future. Thus, it will be imperative for Republicans to overcome any filibuster of Miers, for the sake of future nominees and - yes - even for the sake of the power of future presidents, Republican and Democrat alike. But by staging such a battle in favor of a weak and unpopular nominee is the worst possible political ground to fight on.
*Patterico notes the related problem that Bush would be in a weaker position to name a known conservative to replace Miers than he would have been before the Miers nomination. On the other hand, if Miers' nomination falls apart solely on the issue of her qualifications, that could provide a useful corrective for the post-Bork syndrome of picking nominees with short paper trails.
*Of course, that hasn't stopped the rumor mill from running.
*So Harriet Miers has trouble keeping straight what she thinks about Griswold v. Connecticut, one of the most significant constitutional law decisions in memory. Not a good sign at all.
*As you've probably seen by now, National Review has officially weighed in against Miers. Also, John Fund on what exactly conservative leaders were told about Miers and Roe v. Wade.
*The business community likes Miers. (Via NRO). I can tell you two related reasons why business groups don't necessarily want another Scalia or, especially, another Thomas. One, business has been thrilled with the Court's imposition of constitutional limitations on state court punitive damage awards. Scalia and Thomas have both dissented from the Court's precarious majority on that issue (personally, I find much more compelling the rule against punitive damage awards based on out-of-state business operations, for reasons discussed here). Two, Thomas is also a regular dissenter from decisions on the Dormant Commerce Clause, which is often used to strike down local protectionist legislation and other hindrances on nationwide business operations. On this latter front, I think Thomas is fighting a pointless and lonely struggle against a doctrine announced in 1824 by John Marshall, but he does have his reasons. Many business leaders don't want a Justice who will revisit the constitutional foundations of some of these decisions.
*Thinking out loud here on another issue that may come up, but I'm not sure it has any weight to it. Presumably, a Justice who was married to a lower court judge would have to recuse herself from cases in which he had issued a ruling, no? Doesn't that suggest - and believe me, I'd really rather not go there - that whether Miers would have to recuse herself from cases on which Justice Nathan Hecht of the Texas Supreme Court had ruled would depend on the nature of their relationship, which seems to be at least semi-romantic but which was, until now, very properly nobody else's business? (This is of a particular concern because the number of death penalty cases coming to SCOTUS from the Texas Supreme Court is non-trivial.)
*Beldar explains why Miers' 1995 effort to block legislation over lawyer fee awards, on separation of powers grounds, was reasonable; the short answer is that lawyer fee awards, unlike many other subjects of judicial lawmaking, really are naturally subject to the plenary regulation of the judiciary by virtue of the judiciary's inherent authority to regulate the ethical practice of the bar. That doesn't mean a legislature should never intervene in those issues, but it's not judicial activism to view the discipline of lawyers as the juduciary's job in the first instance.
*Here's something that drives me nuts. First, from the Washington Post:
Grover Norquist, head of Americans for Tax Reform and host of the other meeting, declined to comment on the discussion because of its presumption of confidentiality but said there is widespread concern given the experience with the nomination of Justice David H. Souter, who proved more liberal once on the bench.
Then, from an article about a new biography of Souter:
When he joined the court 15 years ago, Souter was touted as a sure bet for conservatives.
(Via Stuart Buck). Would it kill these people to just come out and say that Souter has actually voted as a liberal? That he votes very consistently with the Court's liberal bloc? Of O'Connor and Kennedy, you could say that they proved "more liberal" (or "less conservative") or were/are "swing" voters. Souter, like Blackmun, is the genuine article, a guy who has sided with the Court's liberals on nearly every major decision that offered a left/right split. Are Scalia and Thomas conservative? Yes they are, and news accounts properly describe them as such. But actually saying "David Souter is a liberal" is apparently a bridge too far.
Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. . . Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. . . I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.
This is another pet peeve of mine. Hitchens quotes this passage as if it were self-evident that reason and skepticism must lead to atheism or agnosticism, and as if mature adults must retain a permanent posture of skeptical uncertainty towards the existence of God. There's nothing wrong with, and much to be said for, taking a hard look at some point at the things we take on faith. But at some point in life, you have to make decisions and commitments; you can't hide forever behind an attitude of permanent uncertainty (as Neal Peart put it, "if you choose not to decide, you still have made a choice"). Hitchens is speaking of Harriet Miers, but who is to say that Miers has not given her faith a skeptical re-examination? After all, she left the Catholic Church to join a new denomination, a more radical break than most people experience. The fact that Miers made a decision about her faith does not necessarily mean that decision was unexamined.
October 12, 2005
LAW: Judges "Learned in the Law"
It's appropriate at this time to recycle a quote from Justice Scalia that I ran here three years ago regarding judges and their prior public positions on issues, in a case regarding Minnesota's regulations of speech by candidates for election to the bench:
A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." [Quoting same Rehnquist opinion] The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, Sec. 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). [A]voiding judicial preconceptions on legal issues is neither possible nor desirable . . .
(Emphasis added; citations omitted).
LAW: Not A Good Sign
From OpinionJournal's Political Diary, John Fund reports:
The portrait of Harriet Miers emerging from interviews with her friends and colleagues in Texas is largely a consistent one. She is universally regarded as bright, hard-working and remarkably gracious. But she also clearly has a steep learning curve when it comes to serving on the Supreme Court.
(Emphasis added). Hopefully, we'll get a fuller picture of what Miers' record in private practice really was. If I can be convinced that Miers was a genuinely outstanding commercial litigator, skilled in evaluating and presenting legal arguments and learned in the law governing her areas of practice, I can at least consider supporting her for the Court. That case remains unmade.
UPDATE: In Wednesday's Political Diary, Fund says again that "Ms. Miers has real-world experience serving as local counsel for such corporate clients as Microsoft and the Walt Disney Company." For those of you unfamiliar with the concept, if, say, a New York law firm wants to represent Microsoft in a Texas court, and the lawyers representing the company aren't admitted to the Texas bar, Microsoft still needs to hire lawyers who are members of the Texas bar - "local counsel" - to appear with them in court, even if the Texas lawyers do little besides greet the judge, sign papers drafted in New York, and receive service of court papers (this is not limited to Texas - nearly all states have such requirements, and in fact, one subject Miers has written on extensively and substantively is multi-jurisdictional law practice). On the other hand, (1) some non-lawyers might use the term to refer to Microsoft's regular lawyers in Texas, and (2) local counsel sometimes has a much more active role, including handling arguments and trying the case with just some background assistance from out of town lawyers.
To me, the question of what Miers' role was in cases where she appeared on the pleadings on behalf of Microsoft and Disney is hugely important. Beldar's review of published opinions in cases where Miers was named as counsel places very heavy emphasis on her representation of Microsoft and Disney to show that she had a top-flight commercial practice involving her in complex questions of law. I have asked whether those cases were typical of her practice. But if it turns out that even on those cases she was largely just signing papers drafted by out-of-state lawyers, that would severely undercut Beldar's case for Miers having a distinguished record litigating complex and sophisticated legal issues.
SECOND UPDATE: Finally, some details on Miers' cases - this account indicates that she was, in fact, lead counsel for Microsoft (via Bashman):
Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail.
Her biggest case may have been her successful fight to spare Microsoft from class-action lawsuits over an alleged defect in one of its computer operating systems.
Joe B. Harrison, an attorney who opposed her in a 1998 case, remembers Miers as "well-prepared and competent and ethical and responsible."
During the 2000 presidential campaign, Miers defended Bush and running mate Dick Cheney against a lawsuit claiming that Texas representatives to the Electoral College couldn't vote for the Republican ticket.
A lot of mild praise there - "competent," "well-prepared." I don't think we'll hear the kind of adjectives we heard from observers of John Roberts as an advocate, but we shall see. Overall, a small data point in Miers' favor.
October 11, 2005
LAW: Harriet Miers' Qualifications
Let's do a little Q&A on Harriet Miers:
Am I supporting or opposing confirmation of Miers?
For the moment, neither. As should be clear from my posts on this issue, I've been disappointed in the nomination, and I have serious concerns that might lead me to join the growing coalition of pundits and bloggers calling for the withdrawal or defeat of her nomination. But I could still be convinced that she has the right stuff to be a good Supreme Court Justice. For the moment, count me among the "show me" coalition.
Is Miers an unqualified hack?
Don't be ridiculous. Go read Beldar, who has been leading the effort to get the facts out in defense of Miers. This isn't Michael Brown here; Miers is a tremendously accomplished person. She had a long and successful career as a commercial litigator, representing numerous blue-chip clients and eventually being elected the managing partner of a 200+ lawyer firm and seeing it through a merger with another firm of similar size (Beldar well explains what this involves). She was also the president of the State Bar of Texas; as Beldar points out, membership in the State Bar is mandatory in Texas, and the bar and its presidency is a big deal within the state, even aside from the role it gave Miers in the ABA. And, of course, she's been a close advisor to the president for five years and White House Counsel for the past year. The staff secretary and White House Counsel jobs may not be glamorous, but they involve endless grueling hours; these are not jobs you give to a drinking buddy of the president. Miers' other experiences, heading the Texas Lottery Commission and being elected to the Dallas City Council, aren't big deals in political terms, but both involved real responsibility, and she juggled them while maintaining a full schedule as a practicing lawyer. And all this is particularly impressive when you consider that she was the first woman at her firm and, by all accounts, not someone who entered the profession with a lot of family or other connections.
So, yes, Miers has had an impressive career. She's hard-working and competent; she's unquestionably well-qualified to head a Cabinet department and clearly well-suited to be a district judge; and I wouldn't bat an eye if Bush appointed her to sit on a federal Court of Appeals. But the Supreme Court is different, and I do have real concerns that we haven't been given an adequate basis to conclude that Miers is qualified for a life-tenured position on a Court from which there is no appeal.
Aren't the objections to Miers just elitism?
First of all, if being an elitist means demanding excellence, I plead guilty. The "elitism" charge, to the extent it is backed up by any reasoning, comes from two quarters. Hugh Hewitt has argued that it's unnecessary to have Justices who have extensive constitutional law backgrounds, because Con Law isn't that hard; I address that below. And Beldar argues that people who sneer at Miers' resume are using an unduly constricted view of what experiences make up excellence in law practice - that there are plenty of great lawyers in private practice who didn't go to Harvard or Yale and haven't written law review articles.
I'd agree with that, in the abstract, but the debate here isn't about commercial litigators in the abstract, it's about one particular lawyer.
Let's make this clear:
I'm not bothered by the fact that Miers didn't go to an elite law school.
I'm not bothered by the fact that Miers didn't clerk for a prestigious judge.
I'm not bothered by the fact that Miers has never been a judge herself.
I'm not bothered by the fact that Miers has never written or said anything persuasive in public about the Constitution.
I'm not bothered by the fact that Miers' name shows up as counsel in barely more published opinions on Westlaw than mine, in three times as many years in practice.
I'm not bothered by the fact that Miers has, as far as I can tell, spent the vast majority of her time over the past decade away from the courtroom, doing things besides litigation.
But I am bothered quite a bit by all of those facts when taken together, and it's hard to think of too many examples of good Justices about whom all of those things were true. That's the source of unease here about Miers' qualifications - it's not one thing, it's the whole package taken together.
Doesn't Miers' experience as a successful commercial litigator qualify her for the Supreme Court?
This has been one of Beldar's big themes, but I just can't agree with him. As a securities and commercial litigator myself, of course, I have great respect for the complexity of a lot of commercial practice. And as I've stressed before, having a Justice experienced in practicing law at the ground level is a great thing. But just saying that she was a success in private practice doesn't answer the core question about her qualifications.
Beldar quotes people saying Miers was/is a sharp lawyer, good with juries and cool before judges. But what kind of sharp lawyer? You see, there are really three distinct skill sets involved in being a successful commercial litigator - being a "law" person, able to spot legal weaknesses in an adversary's position, make sense of complex or conflicting caselaw and assemble clear and concise arguments; being a "fact" person, good with live witnesses and juries; and being a good negotiator, skilled with the give and take that makes up the discovery and settlement processes.
But there are certainly plenty of people who succeeed as litigators without mastering all three. Any lawyer can tell you that they've been in a case with lawyers - as adversaries or co-counsel - who had big names, long track records of success, and big bank accounts, and discovered that their briefs or their arguments in court were sloppily reasoned and poorly presented.
We know Miers is said to be a good "fact" lawyer; the president and others have marveled at her skills in deposing witnesses. And the fact that she was named managing partner of her firm strongly testifies to her skills as a negotiator. But what we lack is proof of her skill at the legal reasoning and persuasion. A major part of a Supreme Court Justice's job is persuasion - persuading other Justices, persuading lower courts (who will decide how broadly or narrowly to read an opinion), persuading future Justices deciding to extend or overrule precedents. Where's the beef?
If Miers had been a judge or academic (or blogger) for ten years, we could read her stuff for ourselves and judge. And if she was a brilliant appellate advocate like John Roberts, we'd be hearing the same stories we heard about Roberts: his brilliance at oral advocacy, his ability to grasp complex cases with minimal preparation time, examples of great arguments he presented. But the simple fact that she's won a handful of complicated cases in 30+ years and moved up the professional ladder isn't proof enough by itself. I'm waiting for more.
Ultimately, where Beldar and I disagree is that I believe that not all successful attorneys who are good at trying cases and taking depositions are necessarily, simply by that fact, cut out for work as an appellate judge, any more than every appellate specialist is cut out to try cases. The best people can do both, yes, but that doesn't mean the skills involved are automatically transferrable.
That's why I would ask if we can learn more about Miers' private practice. Has she handled a large number of cases presenting complex legal issues, like nationwide class actions or antitrust cases? Was she regarded by colleagues and peers as an expert in particular areas of the law - i.e., was she interested in doing the work of making sense of bodies of law and keeping up on them and how they play out in different fact settings, rather than just grabbing the cases that help your position in today's case and then going her merry way? We don't know.
October 10, 2005
LAW: Yes, It Matters Whether Miers Knows Constitutional Law: A Response to Hugh Hewitt
Does it matter that Harriet Miers appears to have almost no record of experience litigating, adjudicating, or otherwise staking out positions on constitutional issues? I say it does.
First of all, the Court's role in deciding questions of constitutional law is hugely important, the most important part of its job. Yes, as a practicing lawyer I am well aware that constitutional issues are actually a minority of the questions on Court's docket, and that the Court's constitutional decisions are at least arguably not the part of the docket that directly affects the most people (although many areas of law that have broad-ranging impacts, like criminal law, election law, abortion and the effect of racial preferences on employment and educational opportunities, are shot through with constitutional questions).
More to the point, as I noted with my "how hard is this to change" test, the Court's rulings on constitutional questions have outsize importance because they are the most difficult rulings to undo - especially rulings using the Constitution to take issues away from the democratically elected branches - and because they often involve directly overturning acts of the people's elected representatives.
Hugh Hewitt, who has been working as hard as he can to put back together the Humpty Dumpty of conservative support for Harriet Miers on the Supreme Court, argues that the thinness of Miers' experience as a constitutional lawyer is is not a problem:
The idea that Miers cannot go toe to toe with the giant brains on the Supreme Court is a very odd argument, on a number of fronts. It assumes that the business of judging is very difficult and that only scholars and intellectuals are suited to the task[.]
The other argument is a subdivision of the "not smart enough" argument, and it suggests that even though she is smart, ConLaw played at its highest level requires a lifetime of practice, either in the classroom, the federal courts, or at least as an appellate litigator like the new chief justice.
ConLaw is a just another set of rules, vastly lengthier than those of golf or baseball, and subject to much more frequent changes, which is why they appear complicated to many observors.
[C]onstitutional law is a lot harder tha[n] . . . Hugh Hewitt will admit. It's easy to repeat platitudes about how a judge won't "legislate from the bench" or will just "follow the Constitution." But the hard part is sticking with those principles when they no longer comport with the results you really really want to reach.
The question of how "hard" Con Law is in the abstract is besides the point. While I have my concerns - which I'll discuss separately - over what exactly Miers' career tells us about her facility with arguments about the law, we can agree that smart people can learn the ins and outs of each issue before the Court as it comes up based upon the briefs. Much of the work of the Court is done by law clerks with minimal experience, after all - but they're smart people, and they learn the stuff.
No, the core problem with appointing a Justice who is - as Miers appears to be - learning Constitutional Law on the fly is not that it's too hard to understand the issue at hand in a particular case. The problem, as Hugh should know from teaching Con Law, is that there are connections between the various areas of constitutional law, ways easy and difficult to foresee in which a decision on one question can affect decisions in other areas, whether in terms of substantive doctrine, overarching philosophy, or the myriad issue sub-parts that cut across many different areas of the law: respect for precedent; deference to legislative facts, to state courts, and to findings of administrative agencies; the use of balancing tests and bright line rules; the uses and abuses of foreign law; the significance of the intentions as opposed to the effects of legislation and of popular referenda; the meaning of "rational basis" and application of varying levels of scrutiny; the propriety of exclusionary and other prohylactic rules; the role of horizontal federalism; the special roles (if any) of academic freedom and of the organized press; and many others. A Justice who decides today's case without regard to its broader place in the constitutional scheme is, in effect, a glorified law clerk, applying brainpower but not the wisdom that comes from seeing the whole field of constitutional law.
Indeed, the entire benefit that comes from appointing a Justice who has been a litigator, a legislator, the head of a business and an advisor to the President is supposed to be the nominee's ability to see beyond the individual intellectual issues in a case to how the result will play out in the lower courts, the broader legal profession, and the outside world, where it needs to be implemented. After all, as any practicing litigator knows, even an offhand footnote in a Supreme Court opinion can spawn a whole body of law in and of itself, one the Court might take decades to return to.
But if Miers is indeed as blank a slate on constitutional questions as she now appears, that benefit is significantly blunted as to the most important part of the Court's docket, because there is a real concern that, however smart she is, she could have trouble understanding - as someone experienced in the field would - how the reasoning of her decisions will affect the disposition of other cases on other days, in the Supreme Court and in lower courts.
Maybe Miers has a well-thought-out view of many aspects of constitutional law; maybe we will yet be surprised. But Hugh Hewitt's argument that it doesn't even matter if a new Justice knows the pre-existing 200+ year-old body of consititutional law is misguided, unrealistic, and detatched from the way in which the Court actually operates and in which its decisions play out in the real world.
October 9, 2005
LAW: Rogue Prosecutor
I've been delinquent on catching up on the revised indictment of Tom DeLay; hopefully more on that later. In the meantime, go read former federal prosecutor Andrew McCarthy, though, on why "[t]he investigation of DeLay, a matter of national gravity is being pursued with shocking ethical bankruptcy by the district attorney — by Ronnie Earle."
I'll make this promise: whatever the outcome of the Valerie Plame investigation, and whether or not Patrick Fitzgerald takes any steps in that investigation that warrant criticism, I will not argue that Fitzgerald is some sort of runaway rogue prosecutor. Everything we know about Fitzgerald (a former colleague of McCarthy's, among others) suggests that he is a tough, aggressive, but fair-minded guy.
Nothing we know about Earle says the same.
October 8, 2005
LAW: The Miers Files
For those looking to pick over the slender public file of Harriet Miers' writings, this link (via NRO) is a good place to start.
Then there's Beldar - just keep scrolling, because you are not part of an intelligent discussion of Miers' credentials if you aren't reading Beldar, who is doing his best to defend the honor of Texas commercial litigators. This post has some hard information on some of Miers' cases. Beldar pulls 19 reported opinions from Westlaw where Miers' name appears; even granting that state trial courts rarely publish opinions, at least in Texas, that does seem a bit thin to me for 30+ years of practice (the same search for me would turn up 14 opinions, and I've only been in practice for 9 years).
I remain unconvinced that Beldar has proven that Miers is qualified for the job, but I'm keeping an open mind, and I think he's certainly made some good points; we'll learn more at the hearings, and hopefully before then.
October 7, 2005
LAW: A Burger Fan?
Did Harriet Miers name Warren Burger as a Justice she admired - or was she confused between Burger and Earl Warren? Jim Lindgren looks at the competing claims being made.
October 6, 2005
LAW: The Miers Pick: Some Things Are Worth Getting Upset Over
As Leon H notes over at RedState, some folks supporting the Miers nomination seem to think that those on the Right opposing the nomination have lost their perspective. Now, I wouldn't recommend leaving the party, or staying home for the next election, over this. But an arguably bad Supreme Court pick is certainly worth getting agitated over.
My question #1 in deciding how mad to get about a decision by our elected officials is, "how hard will it be to change this?" The budget is stuffed with highway pork? Bad, but there's another budget next year. The budget is stuffed with new programs? Worse, since new programs rarely go away. The budget is stuffed with new entitlements that put a permanent drain on the federal fisc? Now, I'm gettin' angry. But even then, all of those are things a new president could change, if he or she had the votes in Congress.
But Supreme Court Justices essentially can't be removed, and their decisions live on for decades or centuries after they are gone (many areas of Constitutional jurisprudence are, to this day, the products of John Adams' nominations). With the (possible) exception of war, no presidential choice has as long-lasting effects as the choice of Supreme Court Justices. What was worse for America - Jimmy Carter in the White House for 4 years, or Harry Blackmun on the Supreme Court for 30? I'm not sure I'd pick Carter; at least after 4 years, we got to have another election, whereas after Breyer was confirmed we had to wait 11 years for another Supreme Court vacancy, and these two latest vacancies are to replace judges confirmed in 1972 and 1981. And nobody now requires presidential candidates to promise not to change anything Jimmy Carter did.
As I'll hopefully explain in more detail shortly, I have not, personally, concluded that Harriet Miers should not be confirmed by the Senate, nor have I even concluded that she would not be a wonderful Supreme Court Justice; rather, I'm still waiting to be convinced on her merits. But I can't fault anyone for complaining about the nomination. This is, to many of us, the #1 or #2 reason (behind only the war) for supporting Republicans for the White House. If Miers is another Kennedy or O'Connor, we will be grumbling over our disappointment for decades. If she is (as I very much doubt) another Souter or Blackmun, we will rue this nomination for the rest of our lives. And even if she is another Thomas, we will be sad if she steps down in 20 years, sad that a younger candidate might have held the fort for longer.
So, yes, this is very much an issue worth getting exercised about. We will live with its consequences all our days, without a second opportunity to do anything about it.
LAW: Poor Aunt Harriet
One-liner of the week, from Jay Leno last night: "President Bush says that he knows Harriet Miers won't change in 20 years. 20 years ago she was a Democrat! And Catholic!"
UPDATE: Runner-up, from an email received by Megan McArdle:
I just received a missive from some activist group I've never heard of, urging me to contact Congress and the White House to urge the appointment of a qualified "state or feral judge" to the Supreme Court.
October 3, 2005
LAW: It's Miers
So, President Bush has chosen White House Counsel Harriet Miers for the next Supreme Court opening. First of all, a hat tip to David Frum; as I noted back in July, Frum was the first to float Miers' name as a dark horse pick for the Court. Miers is profiled here by the Washington Post.
Color me less than thrilled. Yes, I know that she's known to be pro-life; in fact, that's nearly the only thing that seems to be known for certain about her views, given that in 1993 she led an unsuccessful battle to change the ABA's position on abortion (ht: ConfirmThem). And I know that, as the White House is already pointing out, 10 of the last 34 Justices have been non-judges appointed from within the executive branch, including William Rehnquist, Byron White, Robert Jackson, and William Douglas.
But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice. First, she's not young; at 60, Miers is older than almost all of the widely-discussed candidates. Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones. Miers may well be highly intelligent, but she has no such reputation. Third, Bush also passed over experienced trial judges - Jones, Emilio Garza, Edith Brown Clement. There's actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public - where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced - is a Court that lacks an essential perspective on its role in the system of justice. Of course, Miers was a commercial litigator for years, so that's a fair substitute for experience as a trial judge on the civil side, but I'm not sure if she has any criminal experience. And much of her career path has been spent as an administrator, running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years. She presumably hasn't seen a courtroom in a decade.
Miers may well play well on TV, as John Roberts did. But Roberts entered the game with a powerful advantage: his unchallenged reputation for brilliance and high qualification. Her personal story - a never-married woman who worked her way up through male-dominated Texas law firms to become the first president of the Texas State Bar, breaking lots of 'glass ceilings' in the process - could be an inspiring tale to feminists, but since they are the #1 group automatically opposed to any Bush nominee, Miers' political benefits should be blunted.
I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?
By picking an advisor known well to the president but without well-known views or qualifications in the larger legal community, Bush is asking us to trust him. And, personally, I do trust him. But for the public at large, "trust me" works a lot better for a president with high approval ratings and lots of political momentum than for a Chief Executive who has been off his stride and on the defensive much of the year. Especially given that Miers' selection plays right into the hands of the Democrats' recent drive to complain about Bush appointing "cronies." I just can't think that Harriet Miers was the best person for the job.
UPDATE: Krempasky notes that Miers gave $1,000 to the Al Gore for President campaign in 1988, and another $1,000 to the Democratic National Committee in November 1988.
SECOND UPDATE: I should note that Bush calls the bluff of Harry Reid, who said he wanted a nominee who was "more of a trial lawyer."
What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left.
THIRD UPDATE: John Hinderaker is disappointed. K-Lo says everybody's depressed about this one and thinks the Christian Coalition will balk at Miers because she ran the lottery. Why Jonathan Adler thinks Miers "will likely provoke little Democratic opposition" is beyond me. NRO, Hinderaker, Morrissey, RedState . . . if Hugh Hewitt is underwhelmed (as I suspect he will be), who's left to defend the Administration on this one?
FOURTH UPDATE: John Hawkins of Right Wing News sets the bar for disappointment: "a Bush crony with no real conservative credentials . . . To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection."
FIFTH UPDATE: MaxSpeak has the text of today's Harry Reid statement:
In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.
I agree with that, although I'm withholding judgment on what she brings to the table until I hear more about what exactly her litigation experience consisted of. Meanwhile, Hugh Hewitt finds it in himself to back Bush on this after all. My take: the best conservatives can hope for is that Miers is a follower, not a leader.
September 29, 2005
Mr. Chief Justice Roberts. The "yes" votes included all 55 Republicans, every red-state Democrat but three (Minority Leader Harry Reid, presidential candidate Evan Bayh, and liberal warhorse Tom Harkin), every light-blue-state Democrat but three (Debbie Stabenow of Michigan and Maria Cantwell of Washington, both up for re-election in 2006, and the retiring Mark Dayton), and even liberal stalwarts like Chris Dodd, Carl Levin, and Patrick Leahy.
UPDATE: Chief Justice Roberts:
"I view the vote this morning as confirmation of what is for me a bedrock principle, that judging is different from politics."
Amen to that. I also see that among the honored guests at the swearing in were the widows of Thurgood Marshall and . . . Potter Stewart? He's been dead for 20 years (Stewart was replaced on the Court by Justice O'Connor). But apparently his wife is still with us.
LAW: Presumed Innocent Until Proven Guilty
Another thing on CNN last night was a panel discussion on Larry King on the DeLay indictment, featuring, among others, left-wing pundit Katrina vanden Huevel of the Nation. King gave her a lot of rope, but at one point he was badgering her repeatedly with the question, "but you do presume that DeLay is innocent until proven guilty, right?"
Too many people misunderstand the role of the presumption of innocence. It's a legal rule, which applies to juries, instructing them not to find guilt without sufficient evidence, and to start by assuming the defendant is innocent until that evidence has been presented. In that context, of course, it serves a valuable role.
But the presumption of innocence, even as a social norm, shouldn't preclude pundits - who after all get paid to look at facts and offer opinions about them - from saying they think a public figure is guilty, if the available evidence supports that conclusion. Vanden Huevel would be quite within her rights to explain why the evidence Ronnie Earle has on DeLay shows that he did what he's accused of doing.
On the other hand, if the presumption of innocence means anything in the realm of opinion journalism, it means that you can't assume someone is guilty just because the government says so; an indictment alone isn't proof of guilt, especially when the prosecutor in question has a track record of indicting Republicans without a sufficient basis to do so.
So, if you want to argue that the evidence against DeLay shows he's guilty as sin, go ahead. There's nothing un-American about that at all; to the contrary, we all get to have an opinion about our leaders. But if you want to persuade anyone that he's guilty, it has to be based on something besides the existence of the charges themselves.
UPDATE: A commenter notes that Democrats like to point out that Democratic Travis County DA Ronnie Earle has indicted more Democrats than Republicans. I'll let John Fund, writing in today's OpinionJournal's Political Diary (subscription only - no link)
His defenders point out that the 63-year-old [Earle] has indicted 15 public officials in Texas in the course of his three decades as a prosecutor, of whom 12 were Democrats. But that ignores the fact that until the mid-1990s, very few Republicans were elected to public office in Texas and many of the Democrats he prosecuted happened to be bitter adversaries of his.
Reading between the lines here, Richards was and is a liberal, and Bullock was known to work across party lines with George W. Bush, so I'm guessing that some of this history is about the spilt between the Richards/Jim Hightower liberal wing of the Texas Democratic Party, and the rapidly-dying conservative wing that produced people like Martin Frost, Phil Gramm, and Charles Stenholm, with Earle being allied with the liberals. Maybe someone more knowledgeable on Texas politics can weigh in on this.
September 28, 2005
LAW: My Choice?
Well, I took the quiz, but I wasn't expecting this answer:
Actually, I don't know an awful lot about Judge Batchelder, so I'm not being critical - she's just not one of the people I've been thinking about for this vacancy.
Via New World Man
POLITICS: Time For DeLay To Step Aside
Now, unlike Bill Frist, Tom DeLay has now reportedly been indicted. [Report confirmed]. We shall see what merit there is to the charges, given the history of partisan prosecutions here, but either way, an indictment does warrant DeLay stepping down as Majority Leader until and unless he is aquitted or charges are otherwise dropped or dismissed.
UPDATE: Here's the indictment in PDF form, via CNN; you can read the whole thing yourself, as it's only four pages. You will notice that DeLay is not charged with any violations of law in his own right, nor with having committed any "overt act" in furtherance of the conspiracy. In other words, he's not accused of doing anything.
Of course, in the context of an elected official's role in his subordinates' raising of campaign funds, that's not surprising. Under conspiracy law, what is unlawful is the act of agreeing that the other conspirators will seek an unlawful objective. Thus, whether there's any basis for this indictment depends almost entirely on what DeLay knew about what these guys were doing, when he knew it, and whether there is any proof that he agreed to it. The indictment, rather typically of conspiracy indictments, gives almost no indication of what that proof might consist of. It does, however, allege that the unlawful agreement was formed "on or about the thirteenth day of September, A.D., 2002," the date on which the Texans for a Republican Majority PAC delivered a check for $190,000 to the Republican National State Elections Committee (RNSEC). One would ordinarily expect proof of some meeting or other contact by DeLay on or about that date, although with whom is left a bit vague, since he is alleged to have conspired with "one or more of" John Colyandro, James Ellis, "or with . . . Texans for a Republican Majority PAC," so that the charge could be satisfied by proof that DeLay agreed with some person affiliated with Texans for a Republican Majority PAC other than Colyandro or Ellis.
More on this another day, and of course, while I'm familiar with federal conspiracy law, I can't say I know anything offhand about any peculiarities of conspiracy law in Texas. If Texas is like federal law, the jury would be instructed that it needs to find that DeLay personally knew he was breaking the law and had the specific intent to violate the law. But the bottom line here is that a charge of this nature will have to go to trial to determine what DeLay's personal involvement was.
September 27, 2005
LAW: Cert Granted
Well, the Supreme Court is back in business agreeing to hear 11 cases for the new term even before John Roberts arrives. Two big ones, in terms of issues of public interest, are on campaign finance issues:
*Randall v. Sorrell, Nos. 04-1528, 04-1530, & 04-1697:
*Wisconsin Right to Life Inc. v. Federal Election Commission, No. 04-1581: Is the Federal Election Campaign Act's prohibition on corporate disbursements for electioneering communications unconstitutional as applied to certain communications by Wisconsin Right to Life Inc.?
LAW/POLITICS: Selling Frist Short
Well, the latest Beltway feeding frenzy is on, and Bill Frist is the main course. If you haven't followed this story, which as Jon Henke notes has already hit the front pages of the New York Times and the Washington Post, Frist
is facing questions from the Justice Department and the Securities and Exchange Commission about his sale of stock in his family's hospital company one month before its price fell sharply.
In contrast to the Democrats, Republicans have a tendency to panic and throw their leaders under the bus at the first whiff of ethical trouble. Sure enough, even hardy souls like Captain Ed and Leon H, as well as the libertarian Henke, are calling for Frist to step down, and Tom Maguire doesn't much seem to have his heart in defending Frist. The desire to have nothing to do with this kind of trouble derives from a healthy impulse, and in Frist's case - as was true with Trent Lott - it is driven in part by unrelated frustrations over his shortcomings as Majority Leader. But based on what we know so far, there is absolutely zero reason to believe that Frist did anything wrong, or that he will or should be in any legal jeopardy.
As an initial matter, some people have questioned whether there was a problem with Frist making any investment decisions at all, given that his assets were supposedly in a "blind trust" to comply with Senate ethics rules. Shockingly, however, Senate ethics rules on the matter turn out to be fairly porous, as Tom Maguire notes: precisely because ethics rules require federal officials to make regular disclosures about their assets, it's not really possible for them to be entirely unaware of their holdings.
Professor Bainbridge, who was one of the first people on the Right to jump on this story, gives the necessary legal background. Basically, under the securities laws - my own area of practice, by the way - the initial question in an "insider trading" case is whether the trader was aware of information about the company that is material (i.e., information that would be important to an investor making a decision to buy or sell) and nonpublic (which means what it sounds like: information not in the public domain). As Prof. Bainbridge notes:
If some SEC enforcement lawyer in fact were to start looking into this, the first question will be whether Frist had material nonpublic information about HCA at the time he ordered the sale. If he had the common sense God gave gravel, the answer to that will be a resounding no. For somebody in his position to retain access to such information would exacerbate the inherent conflict of interest that arises when he deals with health care issues, as well as potentially exposing him to insider trading liability.
He goes on to discuss the longstanding dispute over whether the SEC needs to show trading while in possession of material nonpublic information, or whether it needs to show that the trader actually used the information. That is indeed a vexing issue, albeit one that is somewhat theoretical in many cases (the evidence of use is often circumstantial anyway). Prof. Bainbridge suggests that it might matter here if Frist could show a different motivation for selling, such as a desire to eliminate a conflict of interest that would no doubt only become a larger issue if he runs for president. But if Frist can be shown to have had access to information about HCA's upcoming earnings news before it became public, he is politically toast no matter what the legal outcome.
The same goes, I suspect, for a second part of the legal inquiry that Prof. Bainbridge doesn't address. Frist, as far as I can tell, has no formal relationship with HCA, so he is not technically an "insider" who owes legal duties to its shareholders. Thus, at least under the securities laws, he can only be prosecuted if (1) he was a "tippee," i.e., some person inside the company tipped him off to inside information in violation of that person's own duties to the company and in exchange for some benefit (such as a share in the profits), or (2) he "misappropriated" confidential information that was entrusted to him by the company in some relationship of trust and confidence. The misappropriation theory would likely not apply to information Frist may have received from members of his extended family who were involved in running HCA; the Second Circuit rejected application of the theory in such circumstances to a member of the Waldbaum (grocery chain) family in United States v. Chestman, 947 F.2d 551, 570-71 (2d Cir. 1991).
It's not entirely clear if the "misappropriation" theory could be extended to, say, someone who learned information in his capacity as a government official. The Fourth Circuit rejected such liability in the case of officials of the West Virginia Lottery who bought stock in a company before awarding it a contract in a lengthy and scholarly opinion by Judge Michael Luttig in 1995, United States v. Bryan, 58 F.3d 933 (4th Cir. 1995), but on grounds of wholesale rejection of the theory, which was later approved by the Supreme Court. It should be noted, however, that in Bryan and United States v. ReBrook, 58 F.3d 961 (4th Cir. 1995), the same court upheld the same defendants' convictions for mail and wire fraud. Thus, again, the issue of whether Frist is really in any trouble here all comes down to whether he had any inside information about HCA, which he denies.
On that score, what we know now suggests that there's no reason to be concerned. At the moment, there is only pure speculation that Frist had any material nonpublic information. The suggestion (or assumption) being made by his critics is that if Frist sold a huge, long-held block of stock before bad news made the stock drop, he must have had some inside information, absent some other, rational explanation for why he sold. But Tigerhawk, in a post that's a must-read for anyone attempting to discuss this issue intelligently (link via Instapundit), looks at the trading history of HCA and provides an obvious explanation: HCA had just had a huge run-up in value, and it was publicly known (due to SEC reporting requirements) that a lot of HCA insiders had sold stock (which can be and often is perfectly legal, by the way, depending on the circumstances):
Bill Frist, if he had any information at all about HCA when he ordered his trustee to sell his shares, knew what everybody else knew: that the management was shoveling stock out the door. That fact alone would be sufficient for many investors to sell their shares, and so it should have been for Frist, who was probably trying to get rid of them anyway in advance of his presidential campaign.
Now, this is speculation, just as assumptions of Frist's guilt are speculation, and maybe we will learn something later that changes this picture. But Tigerhawk's analysis certainly shows why - in the absence of any evidence to the contrary - the most logical explanation is that Frist, having sound political reasons to want to sell the stock anyway, chose to instruct the trustee to sell at what looked to be an opportune time to sell.
(One final point: while they don't happen in every case, SEC investigations of trading in advance of big announcements - particularly by people, like Frist, who are related to management - are sufficiently routine that there's really no significance that should attributed to the existence of the investigation by itself.)
Two concluding notes:
1. I don't have time here to address the fact that Frist seems rather clearly to have lied in TV interviews about the degree of his knowledge of the HCA stock in his "blind" trust except to say that it's an incredibly stupid lie, given that his ownership of HCA stock was sufficiently public knowledge that interviewers kept asking him about it.
2. As I commented on Leon H's post, it's all too easy to bail on Frist's ineffectiveness as Majority Leader. Remember how disenchanted we Republicans were with Trent Lott? Remember how disenchanted we were with Bob Dole? Remember how happy we were to see both of them go? Have you noticed how unhappy Democrats are with Harry Reid? How miserable they were with Tom Daschle? (Moreover, neither Reid nor Daschle nor Nancy Pelosi nor Tom DeLay nor Dick Armey nor Dick Gephardt has, within the last several years, been an effective spokesperson for his or her party.)
Face it, being a Senate leader is hard, and on issues where the caucus splinters, I'm not sure that personal leadership can do much to pierce the armor-plated egos of Senators with either fear or persuasion. I think the last really popular Senate leader, within his own party, was George Mitchell.
In short: Frist has been a disappointing Senate leader in a number of ways, and certainly his public statements on this issue haven't helped him. It will be a good thing for the GOP to get a new Senate leader yet again in 2006. But I wouldn't call for his head over an investigation that shows no sign of being anything more than a routine inquiry that is likely to clear him.
UPDATE: I should add that the mail/wire fraud theory pursued in the Bryan and ReBrook cases wouldn't be available here - the government's theory in those cases was that the defendants defrauded the government because their investments deprived the government of the defendants' "honest services" in the process for awarding the lottery contract. Here, since there's no allegation of anything affecting Frist's performance of his legislative duties, that theory would be unavailable.
September 26, 2005
LAW: Let The Torts Commence!
September 16, 2005
BLOG: Quick Links 9/16/05
Slightly more than half of American teenagers, ages 15 to 19, have engaged in oral sex, with females and males reporting similar levels of experience, according to the most comprehensive national survey of sexual behaviors ever released by the federal government.
As a friend writes, "One could, accurately, replace the word 'confident' with 'promiscuous.'"
*Michael Newdow may have won another round in California, but the US District Court in DC rejected his attempt to get a permanent injunction against prayers at the inauguration of the President. (Link opens PDF file).
*Maybe you saw, or heard, the tearful story told on national TV by Jefferson Parish president Aaron Broussard:
The guy who runs this building I'm in, emergency management, he's responsible for everything. His mother was trapped in a St. Bernard nursing home and every day she called him and said, 'Are you coming, son? Is somebody coming?' And he said, 'Yeah, Mama, somebody's coming to get you. Somebody's coming to get you on Tuesday. Somebody's coming to get you on Wednesday. Somebody's coming to get you on Thursday. Somebody's coming to get you on Friday.' And she drowned Friday night. She drowned Friday night.
*Wonder if the people who got all bent out of shape over the Tom Delay-Homeland Security-Texas Legislature flap will go nuts over a Louisiana Democratic Congressman, who is perhaps not coincidentally under federal investigation, diverting the National Guard to clear possessions out of his house rather than save people.
*Speaking of DeLay, if he really believes Congress is doing a good job holding the line on spending and there is no fat left to cut in the budget, it is clearly past time for the House GOP to go get itself a new leader. Via NRO (and yes, I've seen subsequent reports putting the quote in context - they make it a little more understandable but no more defensible.
*Then there's the story of a 57-year-old New Orleans man who drew on his long-ago training as a Vietnam veteran and walked out of town. Via Brian Preston, who has likewise been all over Katrina and its aftermath.
*Classic George Will (via NRO). Favorite line: "You can no more embarrass a senator than you can a sofa."
*Go read Ann Althouse on John Roberts' view of the use of foreign law in interpreting the United States Constitution (hint: he's agin' it).
*So, what does the Chief Justice do? His main importance on the Court is that he picks who writes the opinions, out of the Justices in the majority (if he joins the majority - Burger used to switch sides just so he could control who wrote what). Rehnquist was reportedly less interested in using this power, except when he wanted one for himself. It was presumably Rehnquist who decided that the Bush v. Gore opinion should be an unsigned per curiam opinion.
*Mark Steyn, as usual, had the definitive word on the "Crescent of Embrace" design for the Flight 93 memorial, which has since been scrapped:
[T]he men who hijacked Flight 93 did it in the name of Islam and their last words as they hit the Pennsylvania sod were no doubt "Allahu Akhbar". One would be unlikely even today to come across an Allied D-Day memorial so misconceived in its spirit of reconciliation as to be called the Swastika of Embrace. Yet Paul Murdoch, the architect, has somehow managed to produce a design whose two most obvious interpretations are a) a big nothing or b) a splendid memorial to the hijackers rather than their victims.
*I agree with this.
*This is hilarious:
In order to draw attention to Wal-Mart's paying its workers an average of $10.17 an hour with benefits, the UFCW hired a bunch of temps at $6.00 an hour with no benefits. And while the oppressed, exploited Wal-Mart workers slave away in air-conditioned comfort, those blessed with the Union paychecks walk up and down outside in the sun until they get blisters on their feet. The Wal-Mart workers are coerced into taking regular breaks in a private area; the Union employees are dropped off at the beginning of their shift and left to fend for themselves for the entire day.
If the Democrats really want people who work and shop at Wal-Mart to vote Republican, and they get the people who hate the place, I'll take that deal. Dick Cheney understands that.
Posted by Baseball Crank at 9:13 AM | Blog 2002-05 | Hurricane Katrina | Law 2005 | Comments (5) | TrackBack (0)
September 13, 2005
LAW: Echoes of O'Rourke
Mr. Chairman, I come before the committee with no agenda.
The Cato Institute has an unusual political cause -- which is no political cause whatsoever. We are here tonight to dedicate ourselves to that cause, to dedicate ourselves, in other words, to . . . nothing. We have no ideology, no agenda, no catechism, no dialectic, no plan for humanity. We have no "vision thing," as our ex-president would say, or, as our current president would say, we have no Hillary.
Hey, there are worse people to sound like.
September 12, 2005
LAW: Another Justice From Justice?
With hearings gearing up on John Roberts, RedState's Erick Erickson, parsing the latest rumors from sources who might have reason to know, says that while Attorney General Alberto Gonzalez and Judge Edith Brown Clement are off the short list to replace Justice O'Connor, Miguel Estrada (formerly of the SOlicitor General's office, like Roberts) may be back on it. (Tigercon has more background on the tragic death of Estrada's wife, the details of which I hadn't been aware of but which obviously affect Estrada's own thinking). James Taranto has the not-entirely crazy idea that Bush should instead appoint yet another DC-based former DOJ attorney, law professor and former Assistant Attorney General Viet Dinh.
Interesting that so many of the candidates appear - like Roberts - to be Beltway insiders, rather than judges from outside Washington. Of course, this is partly the Bork/Souter effect: if you want to avoid a candidate with a long paper trail like Bork, yet ensure that you don't get ugly surprises as with Souter, your best choice is to take someone who is a personally known quantity to a lot of DC Republicans (the way Chief Justice Rehnquist and Justices Scalia and Thomas were - Rehnquist had been at DOJ, Scalia the head of the Office of Legal Counsel and on the DC Circuit, Thomas the head of the EEOC and - like Roberts - briefly on the DC Circuit). Of course, as Estrada and Dinh are both relatively young and many of the objections made to Estrada (including demands for memos he wrote with the SG's office) are the same as those raised against Roberts, Estrada would seem to be a particularly logical pick if Bush intends to unveil his selection before Roberts is confirmed.
LAW: Show Me Don't Tell Me
September 7, 2005
LAW: The Chief Is Dead, Hail To The Chief
President Bush's rapid announcement on Monday that he will nominate John Roberts to be the next Chief Justice, rather than an Associate Justice, made all sorts of sense. First, an extended period in which the president theatrically mulls the decision is a luxury that can't be afforded now, with the Court's 2005 term a month a way and attention focused on the aftermath of Hurricane Katrina. Second, I have not located the statutory authority for this, but I understand that, by law, an open Associate Justice's slot can not be filled until after the Chief Justice has been seated. (SCOTUSBlog explains why the two nominations are distinct). Third, Roberts has the momentum behind his nomination, which Bush doesn't want to stall. Fourth, the Roberts pick can easily be justified on grounds of merit: Bush obviously picked him in the first place because he thought he was the most qualified guy available.
Oddly, given the incidence of Justices hanging on past their ability to serve, Jim Lindgren notes that Chief Justice Rehnquist is the first Justice to die while still on the Court since his former boss, the brilliant Justice Robert Jackson, in 1955.
On a related note raised by John Fund: while I don't expect the Constitution to be amended any time soon, I do think if we were rewriting the rules now from scratch, it would be prudent to have a 25-year term limit for Justices. 25 years is long enough to almost approximate the term in office of many Justices in the modern era. A fixed term in office would have a few advantages:
*Ensure regular turnover on the Court, thus improving its responsiveness to changes in public opinion (while I believe the Court should mainly follow fixed and determinable principles for interpreting the Constitution, I'm not naive enough to think we are there yet, and even so there are always some issues on which the Justices have no choice but to bring their world view into the analysis)
*Ensure predictable departures and prevent gamesmanship over when Justices will retire. No more debates over "hanging on to the next term," and elections in which everyone knows a vacancy is due.
*Reduce the incentive to appoint artificially young Justices. All things being equal, there will often be better candidates in their late 50s and around 60 than candidates in their early 40s. Life tenure, though, creates incentives for each party to tilt its picks towards younger candidates.
September 6, 2005
LAW: Harvard By The Numbers
This blogger was actually assigned to create a collage . . . for her first assignment in the Intro to Lawyering class at Harvard Law School. (via Althouse). This is now what passes for practical training in the legal profession?
September 3, 2005
LAW: Rehnquist RIP
Well, the last thing Washington needs right now is another Supreme Court vacancy, but here it is: they just announced on TV that Chief Justice Rehnquist has died.
More on this later, as I have more time to think (I'm also working on a longer post on the whole hurricane-recriminations business, but I want to mull the issue a bit more). But a thought, tying the two strands together: what are the odds that Bush nominates Edith Brown Clement, who was apparently one of the runners-up to replace O'Connor, and who hails from New Orleans and currently sits in a court (the Fifth Circuit Court of Appeals) whose main courthouse is presently abandoned to the flood?
August 29, 2005
LAW: Catholic Justice
From a few weeks back - Musil has a list of Catholics on the Supreme Court, a list John Roberts would join. I'm thoroughly confused by the chronology of what churches Clarence Thomas belonged to and when . . . it's definitely a mixed bag of a list, the lowlight being Dred Scott author Roger Taney.
LAW: J.D. High
For those who are unfamiliar with the unbridled joy that is law school, I'd like to let you in on a little secret -- you were once there, and it was called "high school." Forget the workload, the general paranoia, or even the culture shock of class attendance mattering, the most searing impression that law school left upon me was the overarching deja vu, right down to the personalized lockers, gossipy cliques, musical chair dating scene, and sack lunches. I spent my entire first year waiting to be informed that I was unknowingly taking part in a scientific bio-dome experiment (think MTV's "The 70's House," but more generic). With each year, you become increasingly removed from the high school throwback vibe, but it always exists in the undertones.
For me, of course, the workload and the paranoia were both very much a return to high school; I worked much harder in high school than in college. What unifies high school and law school, and what separates them from college, is that most everyone you know is studying the same subjects and chasing the same goals - getting into college/making law review/getting clerkships/getting good legal jobs. Whereas in college, there's no reason to feel yourself in competition with pre-meds, art history majors, accounting majors, etc.
August 23, 2005
LAW: Quote of the Day
Jane Galt brings us this priceless quote from a juror in the Merck Vioxx trial:
Jurors who voted against Merck said much of the science sailed right over their heads. "Whenever Merck was up there, it was like wah, wah, wah," said juror John Ostrom, imitating the sounds Charlie Brown's teacher makes in the television cartoon. "We didn't know what the heck they were talking about."
Warms the heart of every litigator to hear that.
(Originally quoted in The Wall Street Journal ($))
August 17, 2005
LAW: It's Not About The Money
Under the heading of "arguments you never want to find yourself making," consider the DC Circuit's recent decision (link opens a PDF) upholding Afghanistan's immunity from suit under the Foreign Sovereign Immunities Act (which governs claims against foreign governments) for its involvement, via its sponsorship of Al Qaeda, in the 1998 embassy bombings. Now, for the uninitiated (count your blessings), one of the exceptions to immunity under the FSIA - and, apparently, the only one the plaintiffs thought they could pursue - is that a foreign state may be liable for
an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
The idea behind this "commercial activity" exception is that states should be able to be sued in at least some cases when they do things, like selling oil or running airlines, that ordinary businesses do. The problem, of course, is that this argument put the plaintiffs in the preposterous position of arguing that the Taliban's relationship with Al Qaeda was "a commercial activity." They explained this theory thus:
The Taliban actively aided Bin Ladin by assigning him guards for security, permitting him to build and maintain terrorist camps, and refusing to cooperate with efforts by the international community to extradite him. Bin Laden provided approximately $10-$20 million per year to the Taliban in return for safe haven.
Slip op. at 24. Naturally, the DC Circuit did not buy the idea that this is the sort of activity that characterizes non-sovereign commercial actors:
Granting refuge to terrorist training camps is a uniquely sovereign act; it is not the sort of benefit that a commercial landlord can bestow upon a commercial tenant. As the plaintiffs themselves describe, refuge involved both the "assigning [of] guards for security" and the "refus[al] to . . . extradite" bin Laden.
Id. at 27.
LAW: The Untouchable
August 1, 2005
LAW: Not An Inkblot
Following up on this discussion between Ed Brayton and Randy Barnett, I'd like to expand slightly on a point I made previously here. You will recall the inherent tension in the Ninth and Tenth Amendments to the Constitution:
Ninth Amendment The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The puzzle is that the Ninth Amendment seems to permit rights to be protected by the Constitution without explicitly stating them, while the Tenth appears to do the opposite, reserving plenary power to the States. Of course, it should be recalled that when the Bill of Rights was written, it applied only to the federal government, not to the states, so there was at the time no tension between the two.
Brayton makes the case that the history of the Ninth Amendment shows that it was, in fact, intended to prevent the enumeration of some rights in the Bill of Rights from being read as excluding the existence of others. But that doesn't answer the larger dilemma of how, if you believe in such unenumerated rights, you wind up with any standards at all for determining what such rights are, besides the whims of five judges.
It still seems to me that the only way to have a universe of unenumerated rights that is greater than zero but less than unlimited is to ground it in some coherent, extraconstitutional body of fact or law existing at some particular point in time. One way to read the Ninth Amendment - and I would be interested to see more on the historical support for this reading vs. a "natural law" reading (as Brayton and Barnett do), as well as an explanation of what sources one would look to to disclose the "natural law" - is simply to prevent new and novel invasions of liberty. As I wrote before, one could argue that:
the meaning of the amendment is to protect against new and unimagined federal invasions of rights so fundamental that nobody had thought to protect them because the law had not previously invaded them. Put another way: the Ninth Amendment wasn’t intended to overturn anything existing at the time, but was intended to constitutionalize the existing sphere of rights enjoyed at the time as a floor below which new enactments could not fall.
Thus, one would not read the Ninth Amendment as permitting the wide-scale overturning of laws that were unchallenged at the time of its adoption, but one could see it as a bulwark against new laws that would have been regarded as novel and shocking intrusions at the time. In short, the Ninth Amendment protects not any old liberties but traditional liberties. That, I think, is a reading consonant with Madison's desire to avoid having liberty constricted by the enumeration of rights.
July 28, 2005
POLITICS/LAW: Tea Leaves and the Court
First up, Alberto Gonzales declares that the Supreme Court "is not obliged to follow" Roe v. Wade. On one level, this is a truism: the Court has reversed prior precedents many times before, more often than not at the instance of the more liberal members of the Court, and if a majority of the Court decided to overturn Roe, there's nothing anyone could do to stop them. I admit that the Court has never really enunciated a consistent or principled standard for when to overturn a constitutional precedent - in fact, it's hard to identify even a single Justice who's been thoroughly consistent on the question, and such decisions are usually bitterly divided - but clearly there are few situations more appropriate for overruling a precedent than when a prior decision (1) was wrongly decided, (2) is not at all tied to the text of the Constitution, (3) was clearly not intended at the time the relevant constitutional provision was enacted, (4) resulted in taking an issue out of the hands of elected branches of government, and (5) has resulted in endless controversy and repeated litigation.
That said, Gonzales' statement is interesting as much for why he said it. There would seem to be at least three motives at work for saying this now:
1. The White House wants to reassure nervous conservatives that John Roberts will take a similar tack;
Next up, a fascinating WaPo article looking behind the scenes (as far as they were permitted) at how Bush tabbed Roberts. Read the whole thing; I'll just add here my impressions of what the article means:
*Andrew Card was the guy in Roberts' corner (as every successful nominee needs a patron in the process). Which shows that Card has real power. Which, in turn, suggests that Card was a source for the article.
*Then again, David Vitter also comes off as a player, a freshman Senator who got his candidate (Edith Brown Clement) into the final round. This will play well at home. Could also be a deliberate White House effort to do a favor for Vitter, painting him in this fashion.
*Dick Cheney interviewed everyone, if you were wondering if he was engaged in this process.
*Harvie Wilkinson talked to the WaPo, Clement didn't. This suggests to me that Clement thinks she's still on the list for the next opening, but Wilkinson doesn't and is glad it's known he was considered.
*Card thought Justice Thomas would love the Roberts pick. O'Connor and Rehnquist obviously do. Bush is being savvy picking a guy the other Justices already like. (Which suggests that Bush might well have taken Roberts' old boss Ken Starr, who shares many of the same traits and has more experience, had Starr not become politically radioactive as a result of being Independent Counsel). Again, the White House may be trying to signal that Roberts is a conservative by noting that Card thought Thomas would like Roberts.
*Justice Thomas attends black-tie dinners for visiting heads of state? I did not know this.
*Bush didn't even need to interview Larry Thompson. This suggests that the president's comfort level with Thompson is such that he'll get tapped for something else big again, especially if Gonzales leaves the Justice Department at some point.
*We get confirmation that outside conservative pressure really mattered in stopping Gonzales. Something for conservatives to remember.
*The detainee issue is one that Bush is focused on. Thus, he appears to have seen Roberts' joining a ruling upholding the Administration's policy as a key sign that he was a guy who would stick to his conservative guns. I suspect war-on-terror issues matter more to Bush in the long run than social issues, given Bush's intense focus on the war.
July 26, 2005
LAW: Innocent Until Proven Guilty
I had promised, in responding to this Mark Kleiman post on a potential prosecution of Karl Rove (or others) under the Espionage Act, to respond to this argument:
Surely Rove would have had "reason to believe" the identity of a CIA officer "could be used" to the injury of the United States or the advantage of a foreign nation.
The various caveats in my last post apply here as well regarding the extent of my research and the uncertainty of the facts we now know, or think we know. I'm mainly discussing the law and its potential applications to different fact patterns.
On the more general point, I've already explained here and here why I disagree; in short, Plame's identity as a CIA employee was only problematic insofar as it had the potential to reveal current or prior covert status. It would clearly be relevant to a jury's determination of such an issue whether, for example, the manner in which someone like Rove learned of Plame's CIA employment; if he learned it from reporters, that would make it harder to prove that he had any reason to believe that the information was secret, closely held by the government and not to be divulged to reporters.
Before we go further, let's note what we're dealing with here: an effort to replace traditional criminal-law rules with a zero-tolerance approach to criminal law that acts on autopilot and shofts the burden of proof to the defendant. Recognizing the reality that this case would be very difficult to sell to a jury in light of all the (apparent) facts and circumstances, Kleiman and others pushing the scandal have consistently searched for ways to eliminate most of the facts from the picture and reduce the charges to a simple, strict-liability syllogism in which if the defendant said certain things to certain people, criminal intent is conclusively presumed, and jail follows without any need to examine who knew what and when, or what harms were foreseeable or actually followed from the disclosure.
And so, we get the latest such effort: the contention that Rove can be presumed in advance to have known Plame's covert status by virtue of having signed an SF-312 disclosure agreement (the agreement in PDF form is here; a letter from Henry Waxman pushing this theory, also in PDF form, is here).
Leon H has laid out some of the problems with applying the SF-312 as Waxman suggests, specifically the fact that it really doesn't give the signer any notice that any particular information was ever classified in the first place. The more basic problem is that use of this form simply proves too much: it would allow for a strict-liability approach to prosecutions that is directly at odds with the express language of the Espionage Act as enacted by Congress. As I noted in the first half of my post, the Espionage Act has a strict "willfulness" requirement. Presumably, everyone subject to potential prosecution under the Act has signed one of these forms. Now, I don't question that that would make the form relevant in every prosecution. But if Kleiman's and Waxman's argument is followed to its logical conclusion, the government would never again need to prove the willful disclosure required by the statute; it could just presume the guilt of the defendant as to one (and arguably the most critical) element of crime by pointing to a boilerplate form that made no reference to the particular information at issue in the case.
I am extremely skeptical that a court would accept such a reading of the SF-312's impact on the Espionage Act, and doubly so because courts have (as discussed in my prior posts) been concerned since the 1940s about the broad sweep of the Act and its chilling effects on public discourse. The Supreme Court, in Gorin v. United States, 312 US 19 (1941), held:
[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.
Gorin, 312 U.S. at 27-28 (emphasis added; footnote omitted). As I've noted before, the statutory intent requirement has been watered down a bit since then. But Gorin's holding should give pause to anyone seeking to bulldoze the existing intent requirement of the statute, as the Supreme Court and subsequent courts have stressed that that requirement is what keeps the statute from being found unconstitutionally vague. And that requirement is all the more necessary as the volume of classified information grows, as it inevitably does during wartime. A competent criminal defense attorney could easily argue that the statute, if construed as Kleiman and Waxman suggest, has eliminated that key safeguard and can not constitutionally be applied to criminalize any and all negligent disclosures of information that the defendant did not know or have specific reason to know were classified.
MORE: There's also been intermittent talk about perjury/false statements charges. Tom Maguire asks for help here, which I may get back to in part later. While such charges are always a concern in a large white-collar investigation of this nature, I have yet to see a credible explanation of what they would be. I certainly agree with Byron York that a mere difference in recollection of two witnesses is not enough to rest a perjury charge on, especially when the contemporaneus documents would appear to support Karl Rove's account and when the discrepancy is not material to the investigation. (And can we please not hear a peep from anyone who defended Clinton calling for prosecutions for perjury and obstruction? I mean, really). I'll get deeper into some of the elements when we have a little more tangible fact pattern to deal with. (As Maguire points out, none of the various discrepancies noted so far seem to amount to much).
July 25, 2005
LAW/POLITICS: A Name Is Not A Document
I'm overdue to get back to some of the legal loose ends on the Valerie Plame case, including the last bit of my response to Mark Kleiman on the Espionage Act. I see Kleiman half-heartedly pitches a John Dean column discussing the application of 18 USC 641:
I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst . . . working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft . . . was being ignored by DEA, and its investigation of money laundering. . .
[T]he London Times said that . . . it had DEA documents showing that [Lord] Ashcroft was index-numbered on the DEA files, a measure that, it said, is taken only when serious suspicions exist.
Dean doesn't address whether the government contended otherwise, but leave that issue aside for now. Here's how Dean describes that indictment:
Count One is based on the general theft statute - with information, once again, alleged to be the "thing of value" stolen. Count Two relies on a statue adopted in 1994 designed to protect information in government computers, where most government information now resides. The government charged that Randal "knowingly and with an intent to defraud" the government, exceeded his authorized use of the DEA computer by pulling information about Lord Ashcroft.
Now, let's look at Section 641, which punishes:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
The obvious problem with this is that Randel apparently made off with documents. Nobody in the Plame case is alleged to have handed over to the press any classified documents. That doesn't end the inquiry under other statutes, but under Section 641 I can't see how you could prosecute anybody for stealing just by passing along a name. This is particularly the case because language like "embezzles, steals, purloins, or knowingly converts to his use or the use of another" is generally read to require taking unauthorized title to property. (This is even before we get into the all-important intent question. I remain convinced that it will not be possible to successfully criminally prosecute anyone who did not know they were passing along the name of a current or former covert agent).
July 20, 2005
LAW: Privileged Documents
Beldar makes two interesting but inherently conflicting points about John Roberts (via Krempasky at RedState). First, touching on a point I've made before, he predicts that the Democrats will use improper requests for documents as an excuse to delay the nomination (what I've referred to previously as the Coca-Cola strategy):
Judge Roberts has spent much of his career as a public servant - first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying.
Beldar's point is well-taken; you will recall that all the living Democratic Solicitors General signed a letter opposing the effort to obtain privileged internal documents from Estrada's time with the SG's office. The issue is an institutional one, not a partisan tack taken by the Bush Administration. But, having explained why those documents can't properly be released to the Senate, Beldar nonetheless argues that they have validly formed the basis of Bush's own impressions of the nominee:
Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts - in his capacity as a private counselor, and not just a public advocate - Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.
Now, Beldar is right on this count as well. But I can understand why the Senate will find this fact frustrating, because it means that the President (any President) will have a built-in informational advantage over the Senate in evaluating former Executive Branch attorneys (the advantage might be reversed if, like Steven Breyer, the attorney had counseled a Senator or Senate Committee).
A related point arises for questions the judge will not want to answer before the Senate. (As Leon H at RedState points out, Democrats like Joe Biden took the position in 1993 that then-Judge Ginsburg did not need to answer those questions). A shrewd Senator would press to know what the nominee told the President, which at least would foreclose the nominee from being wholly evasive. Although once again, it's unlikely that the President asked terribly specific questions, knowing this hazard was out there.
LAW: It's Roberts
I don't have that much to say, just yet, about John Roberts, but a few random early observations:
*Any pick like this involves balancing the nominee's merits in the job (philosophy, brains, skills, experience) with his/her political assets that will help with confirmation. Roberts is, like past Bush appointees such as Dick Cheney and Don Rumsfeld, clearly more of a merits pick. He lacks many of the credentials of other short-list candidates: not a woman like Edith Jones or Edith Brown Clement or Mary Ann Glendon, not a published academic like Michael McConnell or Glendon, not a Latino like Emilio Garza or Alberto Gonzales, not a military veteran like Garza, not from a politically useful state like Clement, not a politician like John Cornyn, not a long-time judge like Michael Luttig, Garza, Jones or Clement, not a former trial-court judge like Garza or Cornyn or Clement, not a famously gifted writer like Luttig or McConnell.
Still, Roberts can't be accused of lacking experience - his many cases briefed and argued before the Supreme Court is perhaps the best credential you can bring to the job. And as for the political benefits, the two main ones are that Roberts is apparently well-known and well-liked within DC and that he was recently confirmed with bipartisan support. (A benefit on the merits of the nomination is his relative youth, at age 50). You could tell watching Bush that he thinks he has the votes already.
*Some conservatives may fear another Souter from a guy with a relatively light paper trail. But rememeber: Souter was a recluse from New Hampshire, not well known to the people who vetted him for the job. Roberts, like his former boss William Rehnquist (whose resume and temperment he resembles greatly) and like Clarence Thomas, is a long-time DC insider (he's been in Washington for 25 years), so his views and leanings are likely well-known, if not widely published.
*Personally, I particularly like the fact that his wife, Jane Sullivan Roberts, is a 1976 graduate of my alma mater, Holy Cross (both Roberts and his wife are Catholic, a fact some Catholic groups expect to be held against him), and is active with alumni groups (she sits on the school's Board of Trustees, along with Clarence Thomas, class of '71). According to her bio she practices space and technology law. She has also been active with Feminists For Life, an anti-abortion group. I would be lying if I said I didn't think that would influence Roberts' thinking on abortion (more here and here).
*Flipping around the dial last night (yes, the "dial" is an anachronism), the unhappiest guy looked to be aspiring CBS anchor John Roberts, who had a definite look of "like I haven't had enough trouble getting people to remember who I am."
MORE: I see from the Wall Street Journal that Roberts joined last week's DC Circuit opinion in Hamdan v. Rumsfeld, authored by Judge Randolph, which handed the Administration a major victory regarding the legal status of detainees at Guantanamo. Hamdan, involving a detainee who admits he was Osama bin Laden's personal driver for five years and who was captured on the battlefield in Afghanistan in November 2001, held that:
1. Under a 1942 Supreme Court decision, federal courts do have the power to hear habeas corpus appeals brought by detainees at Guantanamo who have been tried by military courts (Opinion, at 6-7);
2. The President did not violate separation of powers by establishing military tribunals for detainees (Op. at 7-9);
3. The Geneva Convention, as an international treaty, does not create individual rights enforceable by lawsuits in federal court (Op. at 10-13);
4. Hamdan was not covered by the Geneva Convention because he was neither a lawful combatant on behalf of a sovereign state that signed the Geneva Conventions, nor a combatant in a civil war (Op. at 13-16). The court specifically deferred to President Bush's determination that the nation is at war with Al Qaeda, not just with the Taliban government of Afghanistan (Op. at 15-16).
5. Hamdan's challenge to the military court's procedures were not challenges to its jurisdiction and thus would anyway not be properly brought under the Geneva Conventions (Op. at 16-17).
6. Military commissions for detainees were not required to be conducted under the Uniform Code of Military Justice procedures used for courts-martial (Op. at 17-18).
7. Military commissions for detainees complied with the terms of Army Regulation 190-8 (Op. at 18-19).
This actually raises an interesting side question, albeit one that may have a simple answer: whether Roberts would have to be recused from reviewing his own decision below. I believe Supreme Court Justices in the past have not recused themselves from such decisions - I think there may have been some cases that Justice Stevens was involved in on appeal from Seventh Circuit panels he had sat on, for example. But I could be wrong; I'll have to look into it.
July 19, 2005
LAW: Espionage and Rove, Revisited
Mark Kleiman reasserts his contention that Karl Rove could and should be prosecuted under the Espionage Act, a position I have greeted with some skepticism here and here. Kleiman challenges me to respond to his post; I accept that challenge. First, however, a few preliminaries:
1. Kleiman and I are not as far apart as we may at first appear on this point. I agree with him that the text of the Espionage Act and the caselaw under the statute make clear that it covers leaks to the press, not just disclosures directly to foreign governments. I also agree that, given how broadly the statute is written, if the facts are something like what we have been told (a point I'll get to in a minute), a creative and aggressive prosecutor could finagle an indictment against Rove and possibly many other of the government and media figures involved here. And such an indictment might even succeed in surviving a motion to dismiss.
(A word on motions to dismiss: at the motion to dismiss stage, you ask the Court to throw the case out on the theory that even if everything in the indictment is true, the government hasn't alleged the elements of the crime. Unlike in the context of civil lawsuits, such motions are rarely granted, because the government does not need to lay out the facts in the same detail that a civil plaintiff often must).
Most prosecutors, however, prefer to bring indictments only when they have sufficient evidence for a conviction, not just a creative legal theory to get them an indictment. (Sadly, this isn't true of all prosecutors, but most). My analysis assumes that Rove won't be indicted if the obstacles to a conviction, and affirmance of that conviction on appeal, would appear to a reasonable prosecutor to be prohibitive.
2. I'm glad to see that Kleiman has taken to heart my caution about the hazards of reading statutes without reference to the caselaw. As I noted in my last post on this topic, my own examination of the caselaw here is not necessarily complete, and I would look deeper into this question if I was representing a client facing exposure under the Espionage Act.
3. I caution again that we don't know all the facts - and we probably "know" some facts that aren't true. Way too many people on the Right and on the Left are leaping to conclusions based on incomplete, selective and probably self-serving leaks from anonymous sources. I refuse to get into an argument about the facts at this juncture. Still, often in the law you have to start mapping out your defenses before you know all the facts, and so I will discuss some of the possible factual angles based on the latest reports as I understand them, with attention to what factual issues are likely to be particularly problematic for the prosecution. To quote Albus Dumbledore, from the lastest Harry Potter book: "From this point forth, we shall be leaving the firm foundations of fact and journeying together through the murky marshes of memory into thickets of wildest guesswork."
To summarize my prior posts, which you should read before you get into this tangle, the three principal issues in an Espionage Act prosecution would be (1) whether the disclosed information was "information relating to the national defense"; (2) whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation"; and (3) whether the person making the disclosure nonetheless "willfully communicates. . . the [information relating to the national defense] to any person not entitled to receive it".
Let's walk through the analysis provided by Kleiman (I'll refer to this as his analysis, although it is passed on to him by a reader) and keying off the Fourth Circuit's 1988 opinion in United States v. Morison:
Based on statements by Matthew Cooper and Rove's lawyer Donald Luskin we know that on July 8, 2003, Rove possessed information relating to the national defense, specifically the fact that "Joseph Wilson's wife works for the CIA on weapons of mass destruction issues."
We part company almost immediately. I know of no reason why Plame's identity as a CIA analyst would satisfy the statutory requirement of "information relating to the national defense", and Kleiman doesn't explain why it would. On the other hand, if she had been a covert agent recently enough that the disclosure of her identity would compromise covert intelligence-gathering sources, that would likely satisfy the requirement. Where we appear to currently stand is the gray area that would leave two questions to the jury: whether disclosing her identity as an analyst was "relat[ed] to the national defense" because (a) it would inevitably lead to revelation of her prior covert status and (b) whether her prior covert status was sufficiently recent and/or sufficiently connected to ongoing operations that that covert status was still "relat[ed] to the national defense".
(Was Plame still a covert agent, or very recently returned from being one? I have no way of knowing, but I've seen nothing to suggest that).
Also, an aside: it would be funny if Rove's lawyer was Don Luskin, but he's a different guy.
Not saying Wilson/Plame's actual name is irrelevant if Rove identified her as a CIA officer - by informing Cooper that Wilson's "wife" worked for the CIA, Rove was identifying Valerie Wilson/Plame - Wilson's wife - as a CIA officer.
In general, I would agree with this. Plame's identity would lead quickly to her name, especially since (a) Joe Wilson had been an ambassador and thus was likely a known figure in international circles and (b) her name was on his online bio. On the other hand, to the extent that her CIA identity was known around DC and only more publicly broadcast when Bob Novak put it in the newspaper, the addition of the name does add to the government's proof that "this wasn't just public information," and that proof would look weaker to the jury if the name wasn't used.
Rove's lawyer's statements, Matthew Cooper's statement about what he told the grand jury, and the email from Cooper to his editors at Time show that Rove "willfully communicate[d]" the identity of a CIA officer to a reporter.
In this context, "willfully" means "intentionally," that is, Rove was not forced to communicate the information, and he did not communicate the information while talking in his sleep - he intentionally communicated the information, he intended for Cooper to receive the information, and therefore he "willfully communicated" the information.
(Emphasis added). This is where we disagree completely on the law. What Kleiman has quoted here is the standard for acting "knowingly" or "intentionally". But the statute says "willfully," and in a criminal statute, that means more than just conduct that is non-accidental, or even conduct that is negligent; it means that the government must prove beyond a reasonable doubt that the defendant knew he was breaking the law. As the United States Supreme Court explained in Bryan v. United States, 524 U.S. 184 (1998):
As a general matter, when used in the criminal context, a "willful" act is one undertaken with a "bad purpose." In other words, in order to establish a willful violation of a statute, "the Government must prove that the defendant acted with knowledge that his conduct was unlawful."
With respect to the . . . categories of conduct that are made punishable by [the statute discussed in Bryan] if performed "knowingly," the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that "an evil-meaning mind" directed the "evil-doing hand." More is required, however, with respect to the conduct in the fourth category that is only criminal when done "willfully." The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.
(citation and footnote omitted). See also 1 Sand et al., Modern Federal Jury Instructions - Criminal, Instruction No. 3A-3, at 3A-16 (2000) (jury should be instructed, "'Willfully' means to act with knowledge that one's conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law."). And bear in mind that Bryan was describing the more lenient of the two types of "willfulness" the government is required to prove; in some heavily requlated areas, the Supreme Court has required proof that the defendant knew he was violating the specific statute he was indicted under.
Moreover, as I noted in my prior post on the subject, this is precisely how the jury was actually instructed in the Morison case as well as previous prosecutions under the Espionage Act, instructions that were expressly approved by the Fourth Circuit and would likely be given here:
All four of these counts as I have referred to them in my description of them to you used the word wilfully. An act is done wilfully if it is done voluntarily and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law. With respect to the offenses that are charged in the indictment specific intent must be proved beyond a reasonable doubt before a defendant can be convicted. Specific intent, as that term suggests, requires more than a general intent to engage in a certain conduct. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids. It is the government's burden to present affirmative evidence of the required unlawful intent. Again, in determining whether or not the intent existed you may look at all the facts and the circumstances involved in the case.
Morison, 844 F.2d at 1071 (emphasis in original). Indeed, given the breadth of the Espionage statute, the Supreme Court and later courts have emphasized that the main reason for finding the Act not to be unconstitutionally vague is its stringent requirement of criminal intent.
If - as appears quite possible from the things we've thus far been told - Rove didn't know that he was dealing with the identity of a covert agent, and received the information not from classified sources but from one or more reporters, the prosecution would be saddled with an almost impossible task in convincing a jury* that Rove knew he was illegally disclosing classified information.
It should not be overlooked that the Morison case involved starkly different facts as far as the defendant's knowledge that he was trafficking in classified information: the defendant, an experienced naval intelligence officer, worked in a "vaulted" workspace (i.e., only people with "Top Secret" security clearance allowed); he had already clashed with his employers over his side job working for Jane's Defence Weekly; he pilfered from someone else's desk satellite photos of a Soviet naval installation; he cut off the parts of the photos warning that they were "Top Secret"; and, when confronted by investigators, he falsely denied any involvement in sending the photos. In short, Morison provides no support whatsoever for Kleiman's syllogictic reading of the statute as supporting a conviction for mere negligence in the handling of information that could lead to the disclosure of classified information.
Unfortunately, I'm out of blogging time for the morning, so I'll come back to Kleiman's third point later, including the related issue of whether the burden of proof could be shifted to the defendant in an Espionage Act prosecution on the basis of having executed an SF 312 Non-Disclosure Agreement (also discussed here by Leon H). On his fourth point:
A reporter for TIME Magazine is surely "not entitled" to receive classified information regarding the identity of a CIA officer.
We are in agreement.
*- A Virginia jury, anyway. A DC jury might be another matter.
July 14, 2005
LAW: The Espionage Act
Tom Maguire, after eviscerating some spin from Josh Marshall on the Plame story, asks for legal help:
[Mark]. Kleiman has argued that, rather than pursuing a prosecution under the Intelligence Identities Protection Act, Mr. Fitzgerald might try for a conviction under the Espionage Act. We have met skeptics. But let's save Mr. Kleiman from tearing his hair out in frustration - some enterprising reporter might want to check with a few lawyers and see whether that statute might apply. (Of course, if there were any lawyers in the blogosphere, they might want to join in, too. . . )I've expressed my skepticism on this before (see the post Maguire links to), but of course that was without reading the caselaw. Being a lawyer myself with some experience reading criminal statutes, I did a bit of digging to see what else I could find. Now, with limited time on my hands and no paying client to do the kind of thorough online research I would otherwise do, my thoughts here are preliminary, not comprehensive (all I did was read a few cases listed in the US Code Annotated). (Standard disclaimer: this post is not legal advice). So, someone willing to spend some time and money on more thorough research may come to different conclusions. But, for what I can offer based on that limited review, I came up with a few preliminary thoughts on the Espionage Act. First, the as I noted in the post linked above, the key issues in an Espionage Act prosecution are:
a. Whether the information disclosed by Rove or others about Valerie Plame was "information relating to the national defense." (The National Defense requirement).
Factually, of course, this depends on what was disclosed - Rove apparently told Cooper that Joe Wilson's wife worked for the CIA. Is that enough? Does she need to be named (the name could be found online once you knew she was Wilson's wife)? Do you need to disclose that she had been covert?
b. Whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation". (The Scienter requirement).
1. As to the National Defense requirement, there is caselaw holding that information relating to US intelligence-gathering can be covered by the statute. In Gorin v. United States, 312 US 19, 29 (1941), the Supreme Court held that a jury could find that this requirement was satisfied by the the defendant's disclosure to the USSR of US Naval Intelligence reports on Japanese activities in the US:
As they gave a detailed picture of the counter-espionage work of the Naval Intelligence, drawn from its own files, they must be considered as dealing with activities of the military forces. A foreign government in possession of this information would be in a position to use it either for itself, in following the movements of the agents reported upon, or as a check upon this country's efficiency in ferreting out foreign espionage. It could use the reports to advise the state of the persons involved of the surveillance exercised by the United States over the movements of these foreign citizens. The reports, in short, are a part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole.
The Fourth Circuit reached a similar conclusion in United States v. Truong Dinh Hung, 629 F.2d 908, 918 (4th Cir. 1980), permitting the conviction of individuals who disclosed, to the Vietnamese government, information including the "names of United States sources for intelligence about the Vietnamese government."
While both the Gorin Court and Judge Learned Hand of the Second Circuit in United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945), expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement, it seems clear that - unless there has been subsequent caselaw calling Gorin and Truong Dinh Hung into doubt - information bearing upon US intelligence-gathering methods can, at least in some cases, be covered by the statute.
(Were I representing a defendant charged under these circumstances, I might also try to argue that the Espionage Act is either superseded by, or that the National Defense requirement is subject to the definitions in, the Intelligence Identities Protection Act, given that the latter statute is both subsequently enacted and more specifically targeted to the protection of identies of intelligence agents.)
2. Gorin expressly held, at 312 U.S. at 31-32, that the ultimate question of whether the prosecution had satisfied the National Defense requirement was for the jury to decide. Thus, in a prosecution of Rove or other Bush Administration officials, unless the Court concluded as a matter of law that the information disclosed was too removed from the national defense to sustain an indictment, the defense would be permitted to argue to the jury that, given Valerie Plame's employment as a desk-bound Langley-based analyst, and the amount of time since she had worked in the field, there was simply no substantial "relati[on]" between her status as a CIA employee and the national defense. As I noted in my prior post, a creative defense attorney might even find a way to argue to the jury that the relation to national defense was further undermined by her involvement in Joe Wilson's campaign to spread public falsehoods about his own reports to the CIA during a time of war.
Of course, you should immediately see one of the practical problems that would face Patrick Fitzgerald in using the Espionage Act: while the Intelligence Identities Protection Act has a strict definition of "covert agent," the more broad-ranging definition of the National Defense requirement in the Espionage Act would require the prosecution to put on evidence, in open court, of the relation between Plame's identity and activities important to intelligence-gathering, evidence that might itself compound the harm involved. While a politically-prominent defendant would want to tread softly on forcing such proof into the open, and while there are sometimes procedures used to protect against public disclosure, the mere risk that a prosecution could compromise intelligence-gathering efforts would be a disincentive to bring charges under the more open-ended statute.
3. The Scienter requirement is the most troubling one for the prosecution. Gorin held that the Scienter requirement saved the statute from the challenge that it was unconstitutionally vague:
[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.
Gorin, 312 U.S. at 27-28 (footnote omitted). The statute was subsequently amended to require only reason to believe that the information "could be used," not "is to be used," to the harm of the US or the benefit of a foriegn power. At first glance, that sounds pretty broad, but as I noted before, this yet again brings into the debate the issue of whether the person making the disclosure had reason to believe that there could be actual harm flowing from the disclosure of Plame's identity, a matter that appears to be hotly disputed. Certainly, a criminal conviction would not be sustained on the basis of mere slippery-slope conjecture, but would require evidence that the defendant actually had reason to believe that such harm could potentially ensue in the specific case of Valerie Plame.
Moreover, the Fourth Circuit in Truong Dinh Hung, 629 F.2d at 919, and United States v. Morison, 844 F.2d 1057, 1070 (4th Cir. 1988), stressed a different point: that the statute requires that the disclosure be made "willfully." As the Morrison court noted, that required proof of the "specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law." (The Truong Dinh Hung court approved a similar instruction, which also defined bad faith as a "design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive."). And the Supreme Court has only gotten stricter in the years since 1988 on the definition of "willful" conduct in the criminal context, sometimes even requiring proof that the defendant knew of the law in question. A prosecution based on carelessness - by someone who knew that Plame worked for the CIA and never bothered to check whether she had ever been covert - would, I suspect, go nowhere fast, given the willfulness requirement.
4. A number of courts - most notably the Heine court, and more recently Morison - have limited the statute's reach to information that "ha[s] not been made public and [is] not available to the general public." This seems like it is not a requirement of strict secrecy. In any event, it would seem that this requirement, as with some of the others, would open the door to litigation over the degree of secrecy of Plame's identity and the extent of efforts undertaken to preserve that secrecy. See United States v. Enger, 472 F. Supp. 490, 508 (D.N.J. 1978) ("In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in Gorin, '[w]here there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.'"). See also United States v. Dedayen, 584 F.2d 36, 39-40 (4th Cir. 1978).
5. The Fourth Circuit held, in Morison, 844 F.2d at 1070, that the Espionage Act covers information leaked to the media, so that would not be an obstacle (although in an interesting side note, the First Amendment challenges raised there by the Washington Post and other newspapers led Judge Harvie Wilkinson to file a concurring opinion worrying over those concerns).
SECOND UPDATE (10/17/05): Since the indefatigable Minute Man keeps linking back to this post, I should point you to followup posts here and here addressing further legal aspects of an Espionage Act prosecution, as well as the earlier post (here) discussed above. Together, the four posts offer my overview of the significant legal issues.
July 8, 2005
LAW: Hail and Farewell to the Chief?
Rumors are rampant at sites too numerous to link here that Chief Justice Rehnquist will announce his retirement today, further scrambling the Supreme Court nomination fight. (I've also seen rumors about Justices Stevens and Ginsburg, but I have reason to be skeptical that conservative sources have the same access to them, or that they would not be powerfully motivated to stay on right now).
UPDATE: As of 4:30 p.m., Erick at RedState is reporting that "A reliable third party source just called to say that "it is done." William Rehnquist has retired from the United States Supreme Court."
I'm not seeing word anywhere else. If Erick is right, he's got the scoop.
July 7, 2005
LAW: Quick Links 7/7/05
Roundup of news on the Supreme Court nomination fight:
Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.
The "consultation" point is mostly BS - the Dems will make up their own minds without consulting Bush or Frist, but they expect to have real input into GOP decisions. "Extremism" is one of the Democrats' favorite warhorses, but at least it's a battle on the merits. As for documents, this is a common tactic now in confirmation fights. One is the familiar plaintiff-lawyer tactic of using endless demands for information as a stalling tactic when the facts and the law are against you: they don't care about any particular documents, as long as they keep some requests open that they can point to and say, "see, we need more information." Then there's the Coca-Cola strategy (Coke generally settles cases when they are compelled to produce the secret formula for Coca-Cola, since the formula is worth more than any one lawsuit): in the case of Miguel Estrada, the Democrats deliberately sought documents that the Administration, for reasons of bipartisan principle (i.e., they were supported in this by Democratic ex-Solicitor Generals), simply had to refuse, thus ensuring a permanent stall of the nomination.
*Byron York recounts how President Clinton picked Ruth Bader Ginsburg. Clinton presumably provides a model for Bush, who will want to gather intelligence from any key Democrats who are willing to provide it, but will in the end have to make his own call for his own reasons.
*Dales notes that 86% of Americans expect the Democrats to "attempt to block Bush's nominee for inappropriate political reasons". That may be a bad place to start from, or it may just reflect Americans' pervasive cynicism about politics and politicians.
*RealClearPolitics noted, when Rehnquist was the presumed retiree, that Ted Kennedy stated that "of the three oft-mentioned, younger appeals court judges who are candidates for the chief justice slot - J. Michael Luttig, John Roberts or Michael McConnell - one would be acceptable." My money's on Roberts, but I suppose he could mean McConnell.
LAW: 'It means just what I choose it to mean - neither more nor less"
Tom Maguire points us to an op-ed piece in the NY Times that purports to determine who are the most "activist" Supreme Court justices by measuring the frequency with which they use the Constitution to strike down democratically elected laws. This is only one form of activism - aside from the willingness to supersede democratic decisions, there are other types of activism, like the willingness to depart from precedent, the willingness to create new constitutional rules not derived from the text, and the willingness to reach out and issue new rules and broader remedies than required by the case at hand. But it would nonetheless be a useful measurement of that form, if honestly applied.
But honest is one thing this op-ed is not. The authors confine their analysis to striking down federal laws, and entirely ignore state and local laws, which make up a good part of the Court's Constitutional docket, including nearly the entire body of law dealing with issues like abortion, school prayer, and the death penalty. No honest person could defend this distinction, and the authors - in the finest tradition of partisan hackery - do not openly do so, instead mumbling about federal statutes having "a high degree of democratic legitimacy," by which presumably they mean to say that state laws do not. It would have been interesting to hear why state laws are such trifles that judges need pay them no heed, but no such argument was forthcoming. Predictably, some sources on the Left just ran with this bit of tripe without thinking about it, like Brad DeLong and one of the Kos Kidz. The only liberal I see over at Memeorandum who tries to justify this is Yale Law professor Jack Balkin, who acknowledges the problem ("it would be well worth running the numbers on state cases since 1994"), but then asserts without the comparable data that "the conservative judges on the U.S. Supreme Court tend to be fair weather federalists" anyway, and then throws his hands in the air and declares that "activism," since not well defined by these authors, must be indefinable and thus a useless term: "we should focus on who has the better interpretation of the Constitution, rather than on who is an 'activist.'"
In fact, I regard the willingness to overturn democratic decisionmaking as a fairly good proxy for judicial overreach. It's not a perfect one, since there are a variety of factors that distort the selection of cases that come before the Court, and of course there are plenty of cases where the clear command of the text of the Constiutution requires that a statute give way. But instead of giving us data that is genuinely informative, or at least acknowledging that the data here is misleadingly incomplete, the NY Times piece seeks to make a point by misleading those readers who won't think through the details. Par for the course.
July 6, 2005
LAW/POLITICS: Jockeying For Position
I'll have lots more on the coming Supreme Court battle as we go along. For now, the process is a dream for political junkies and game theorists, as multiple actors try to plan their strategies: Bush, Gonzales, conservative groups, liberal groups, swing-state Senators, presidential candidates (including those outside the Senate, especially on the front-runner-less GOP side, who have to weigh the benefits and risks of staking out a divisive position against letting someone else make their bones with the base).
One thing Bush has made clear lately is that he doesn't much like conservative groups criticizing Alberto Gonzales. Seeing as Bush can be pretty stubborn, that raises the concern that loud public attacks on Gonzales could just reinforce his determination to nominate his friend.
If Bush does tap Gonzales, liberals will be in a fascinating bind. On the one hand, there are several reasons to want a fight: liberal interest groups have been itching for one for a decade; presidential candidates need to preen; there's a partisan interest in doing political damage to Bush, which is greatly heightened by the fact that Bush would be going into battle under heavy fire from his own best troops, and thus would find it nearly impossible to overcome strenuous and united Democratic opposition; Gonzales is young and could be on the Court for decades; and Gonzales is mistrusted on the Left due to his closeness to Bush and some of his positions over the years on issues like the death penalty and war-on-terror legal issues. On the other hand, Gonzales is almost certainly the least conservative candidate who's likely to be nominates; there's a political risk in opposing the first Latino Supreme Court nominee; there's a political risk for swing-state/red-state Democratic Senators in opposing Bush; and there's political risk for the party in general in knee-jerk obstructionism of a guy widely painted as a moderate, especially since defeating him - with a Rehnquist retirement still possible within the year - would exhaust much political capital needed for two more fights.
The GOP presidential candidates will have a variety of conflicting interests. If a conservative is nominated, Bill Frist will need to get him/her through to a vote. Rudy Giuliani will likely need to get involved - and Mitt Romney as well - to show nervous social conservatives that they can fight for conservative judges. John McCain, on the other hand, obviously continues to see his path to the White House in looking moderate and bipartisan, so his main interest will be - regardless of who the nominee is - in appearing to build a bipartisan compromise.
By contrast, if there's a nominee detested by the conservative base, the non-Senators will keep their heads down, Frist will be completely doomed no matter what he does, and George Allen will be under strong pressure to vote against the nominee, especially since Sam Brownback might well do so. Of course, Bush can keep some of the GOP Senators in line with personal appeals and arm-twisting, but if the grassroots of the party goes into open revolt (something we haven't seen since the first Bush broke his tax pledge), everyone with a future in the party will want to do what Newt Gingrich did in 1990 and side with the voters.
(On the Democratic side, Hillary Clinton, of course, need do nothing; her position is utterly secure, or at least is no longer subject to events).
June 28, 2005
LAW: Why I Love Justice Scalia
Yet another example, from the broadband case; in dissent, Justice Scalia explains why cable modem dealers are obviously selling telecom services:
I agree (to adapt the Court's example . . . ) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a "'stand-alone'" basis.
(Emphasis in original; citations omitted, footnote in brackets).
I have no idea if I even agree with Justice Scalia's preferred resolution of the case, but you have to love the way he frames an argument.
June 27, 2005
LAW: Hot Water?
Federal prosecutors are investigating one of the nation's most aggressive class-action law firms, Milberg Weiss Bershad & Schulman, for alleged fraud, conspiracy and kickbacks in scores of securities lawsuits, and could seek criminal charges against the firm itself and its principals.
Investigators allege that Mr. Lazar was illegally promised a share in the legal fees that would result from the cases in which he was a plaintiff, according to the indictment. Named plaintiffs in class-action cases can't have a special interest or concealed inducements beyond others in the class.
Most of the cases being investigated were filed before a  change in the law [i.e., the Private Securities Litigation Rerform Act] altered the way law firms jockeyed for the lead in class-action cases. Previously, the first to file a case was assigned the lead, allowing it to control the case and win the highest fees. As a result, many law firms kept a stable of clients to help launch suits quickly. Today, courts usually decide which firm will be given the lead role based on expertise, resources and increasingly, the lowest fees.
June 23, 2005
LAW: Rehnquist Nostalgia
June 17, 2005
LAW: Need To Know
Burning question of the day: does Michael Jackson get his porn back? Dan Abrams says not yet.
June 2, 2005
LAW: Maybe Later
Instapundit links to a Profslawblog post arguing for Seventh Circuit judge Richard Posner as a Supreme Court appointment. Certainly, Judge Posner is the most qualified man for the job on credentials and intellectual accomplishment alone, moreso even than, say, Ken Starr or Laurence Tribe or his Seventh Circuit colleague Frank Easterbrook. My sense is that this would make Posner an attractive candidate if Bush faced the need for a compromise a down the road. But I have no doubt that Posner would not be his first pick, particularly due to his age.
May 20, 2005
LAW: Blackmun's Arguments
Blackmun's legacy as a justice is uncertain at best. Although one would not know it from Greenhouse's book, he possessed neither the persuasive skills of a William Brennan nor the analytical skills of a John Paul Stevens. (Full disclosure: I clerked for Stevens.) Such skills are necessary to have a far-reaching impact on the court. Of course, every justice possesses significant power with his or her vote. But Blackmun lacked the additional firepower to forge an influential jurisprudence, one that would reach beyond the power of his vote. Greenhouse never tackles this question or offers her readers the tools for making or disputing such a judgment.
I think that's right, and of course it was never more in evidence than in the sloppy, poorly-reasoned and intellectually dishonest opinion in Roe v. Wade that defined Blackmun's career. There's simply nothing in the man's career to suggest that he was particularly smart.
May 17, 2005
LAW: Humorous Paragraph of the Day
Who said it?
We teach our kids when they're little that rules are made to be followed; that unjust or unwise rules can be challenged and ultimately changed; that the rules for challenging or changing them are especially important; and that those rules, at least while we're playing the same game, can't be broken but must be obeyed. What's true even of a child's game is doubly true in adult political life. Ripping up the rules for changing the rules is unacceptable if one believes in a rule-governed democracy. For a mere majority simply to plow ahead and have its way even when the rules in place haven't been changed in accord with their own provision for change is to reduce rules to mere suggestions.
None other than Laurence Tribe, proponent of a "living" or "evolving" Constitution, litigant on behalf of Al Gore in Florida 2000, extolling the virtues of unchanging, agreed-upon rules as a good in and of themselves. I kid you not (via NRO Bench Memos). Me, I think it should be easier for the Senate, by majority vote of all Senators, to change the parliamentary rules of the Senate than for judges to change the meaning of the Constitution enacted by the People. But hey, what do I know?
May 11, 2005
LAW/BASEBALL/FOOTBALL: Stadium Shuffle
Interesting article in Reason Magazine arguing that the big Supreme Court takings case this term, as well as another rather flimsy-sounding lawsuit against the Bengals could spell real trouble for future efforts to soak the taxpayers for publicly-funded stadiums (via Bashman). Personally, I've long thought that - as a condition of exemption from the antitrust laws - it would be perfectly legitimate for the federal government to intervene by statute to prevent big-time pro sports teams from extorting public money as a condition of not relocating. While that would go against my usual disinclination to over-regulate business and interfere in state and local government, a statutory solution could be necessary to protect state and local taxpayers from the undue leverage created by the ability of sports teams to relocate and not be replaced.
Posted by Baseball Crank at 9:13 AM | Baseball 2005 | Football | Law 2005 | Comments (2) | TrackBack (1)
May 4, 2005
LAW: Federalizing Drivers' Licenses
Like Glenn Reynolds, I agree that while the federal government has an interest in seeing the standards for issuing drivers licenses strengthened, it's probably unconstitutional to go about telling the states how to do that, and another sign of "fair weather federalism." Now, if you had a national ID requirement - a debate for another day, but bear with me - it would hardly be unreasonable to allow state-issued drivers licenses to substitute if they met certain security criteria. That would place a certain amount of pressure on states to comply, but it wouldn't be the sort of direct interference at issue here.
May 2, 2005
LAW: Solomon's Wisdom
The Supreme Court this morning agreed to review the Third Circuit decision (discussed here) that the Solomon Amendment, which provides that universities may not continue to receive federal funding if they refuse to allow military recruiters on campus, violated the First Amendment freedoms of speech and association of university law schools. The case presumably will be heard during the 2005-06 term, so there may not be a decision until next June.
As noted in my prior post and the comments thereto, the case actually raises a number of thorny issues on which the Court's precedents have been wildly inconsistent.
April 27, 2005
LAW: The Least Dangerous Branch?
The newly permalink-enhanced Sultan of Snark, Mickey Kaus, touches on a crucial point in explaining why he believes filibusters are more, not less, appropriate for judges rather than legislation:
In the post-Warren era, judges don't just have tenure, they have almost uncheckable anti-democratic power. The constitution has been durably politicized in a way the Framers didn't anticipate. Practically every legislative issue can be--and is--phrased in constitutional terms (e.g., as a case of "rights"). Activist Democratic judges would start by supervising the fine points of democratically-passed abortion laws, trimester-by-trimester, and take off from there. Activist Republicans would overturn laws approved by the elected Congress when they don't sufficiently affect interstate commerce. The only hope, given these dueling tribes of activists, is that in the Senate's confirmation deliberations each faction will cancel out the extremes of the other, Bork-style, resulting in either the confirmation of a) a principled non-activist or b) a mushy middle-of-the-road consensus candidate. The filibuster can force such a compromise.
(Emphasis added). Much of the problem with the filibuster debate has been the "pox on both houses" tendency of commentators to treat liberal and conservative judges as if they were two sides of the same coin. They are not. As a practical political matter, I understand well that if you eliminate the filibuster for Republican judicial nominees (which I've advocated doing on a more limited scale), you can't well get it back for Democratic ones, although when Republicans hold a Senate majority during a Democrat's turn in the White House you always retain the option of voting judges down. But in discussing the merits of the two sides' competing visions of the Constitution*, Republicans need to make it clearer that conservative judges should be given an easier path to confirmation than liberal judges, and for precisely the reason Mickey identifies.
Because the fact is, conservative judges are pro-democracy in ways that liberal judges are not. The core ideology of people like Justice Scalia is the idea that judges need to rest their rulings on a foundation of democratic legitimacy - to draw their power solely from the express consent of the governed - rather than from some higher law never expressly enacted by the people in any form. By and large, this means not striking down legislative enactments if one can't find clear evidence that the people previously spoke to the issue in the Constitution itself.
Specifically, liberal judicial decisions have tended to take issues away from the democratically elected branches: on abortion, the death penalty, same-sex marriage, euthanasia, etc., it's liberals who argue that the Constitution removes choices from federal and state governments, even when it is clear that the people, in ratifying the constitutional provision in question, never consented to such expressions of judicial power. The list of such decisions is too long to recount here, but includes the especially undemocratic movement towards deriving authority from international law (in which the consent of the governed is irrelevant, and accountability impossible).
Counter-examples of conservative "activism," by contrast, generally tend at most to reallocate powers among the various branches of government rather than rule them out of the democratic sphere entirely. When the Supreme Court tells Congress that something like the Violence Against Women Act exceeds the commerce power, it leaves the people's representatives in the states with plenary authority to legislate in that area. When the Court limits the ability to sue states in federal court under the 11th Amendment - probably the most controversial area of Rehnquist Court "activism" - it leaves the people's representatives in the states with the ability to accomplish the same ends in state court, or through alternative state-law remedies, if that is what they want. By contrast, the Dormant Commerce Clause cases, which restrict state power, generally leave Congress with the ability to enact nationwide economic policy. If the Court had struck down the Independent Counsel statute, as Justice Scalia proposed, there would still be special prosecutors (as there are again today). And, of course, if the Court were to overturn Roe v. Wade, many states would go ahead and repeal their old statutes banning abortion.
Where there have been a few legitimate counter-examples of conservative judges pushing to limit the scope of democratic governance in the way commonly done by judicial liberals, they have been in the heartland of express constitutional provisions: protecting freedom of political speech during elections (the campaign finance reform cases), preventing government from making preferential distinctions on the basis of race (the affirmative action cases), recognizing an individual right to bear arms or requiring just compensation for government takings of property. There are fair arguments over the original meaning of such provisions, but judicial conservatives can hardly be accused of making up the Fourteenth Amendment's concern with race discrimination.
(Of course, at this point, some liberal readers will no doubt complain about Bush v. Gore, which is often cited as an example of activism. Bush v. Gore was a unique case, of course, and I won't revisit all the arguments I made about it here, here, here and here. But recall that (1) the Supreme Court in that case did nothing to limit the authority of the Florida Legislature or Florida's executive branch; the decision was strictly limited to striking down a judicial remedy derived after the fact without a basis in statute; (2) the Court actually sided with the people's elected representatives in Florida, specifically the Secretary of State, who was given statutory responsibility over the matter; and (3) the Court's conservatives wanted to resolve the case on the basis of an express Constitutional command, in Article II, that left the final say to the Florida Legislature. You have to work awfully hard to distort this into a decision taking power from the elected and accountable representatives of the people).
In short, when confirming judges, the first question should always be this: is this person, on the bench, likely to remove power from its legitimate source, the consent of the governed? Of course, there will be hard questions about how to read what the Constitition and statutes are meant to say. But the clear track record shows that judicial conservatives of the Scalia/Thomas type can be trusted to err on the side of democracy; judicial liberals can not, and should therefore be regarded as the greater danger to democratic self-government. And O'Connor/Kennedy-style "mushy middle-of-the-road consensus candidates," as Kaus puts it, are as likely as not to join the liberals, in addition to joining in some "activist" conservative-leaning decisions, thus making everyone unhappy. The fact that the appointment and confirmation process is the only way short of impeachment (which I, as a practicing lawyer, oppose for all the reasons identified by Ted Olson) to ensure that the bench is filled with people who respect the need to draw power from the consent of the governed is precisely why filibustering conservative judges is particularly misguided and illegitimate.
UPDATE: To clarify a point noted in the comments: my point here is, there may well be an argument for filibustering liberal judges on grounds that they are likely to exercise "uncheckable anti-democratic power," but that argument just doesn't fly for conservative judges.
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* - My discussion here is limited to the judiciary's role in using constitutional law to trump the decisions of the democratically elected branches of government. Of course, the bulk of the workaday business of the courts involves statutory interpretation and application to facts. There are also significant differences in approach between liberal and conservative judges in those areas, but they are neither as pronounced and dramatic, nor as controversial, and they are more easily remedied by legislation.
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April 19, 2005
LAW: Chain of Causation
If I wasn't busy enough, this morning brought a decision from the Supreme Court in a major private securities litigation case, the first significant such decision from the Court since 1995, requiring pleading and proof that a stock declined in value as a result of alleged misrepresentations before suit can be filed. I'd been closely watching the Court's site waiting for this one to write it ip and circulate (see, the blogging skill set has its professional benefits). And now, another institution sends up closely watched signals . . .
April 8, 2005
BASEBALL/LAW: Lawyer for Bonds Trainer Pleads Guilty
Defense attorney J. Tony Serra pled guilty on Tuesday to misdemeanor federal income tax evasion charges for failing to pay more than $40,000 in taxes. Serra has been involved in the BALCO steroids case:
As famous for his rumpled suits and love of marijuana as he is for delivering blistering cross-examinations, Serra has railed against what he sees as government overreaching in criminal prosecutions. He's now defending Greg Anderson, a personal trainer for San Francisco Giants slugger Barry Bonds. Anderson is accused of distributing steroids along with three others at the Bay Area Laboratory Co-operative in U.S. v. Conte, 04-0044.
POLITICS/LAW: Conflict of Interest
Well, look at who's confusing his roles of public prosecutor and campaigner:
Eliot Spitzer was accused on Wednesday of blurring his role as New York attorney-general with his political ambitions to run for state governor after his campaign office paid Google to link a search for "AIG" to a website promoting his gubernatorial bid. AIG, the world's largest insurer, is at the centre of investigation by Mr Spitzer and others regulators into alleged improper accounting.
The thing about Spitzer is, of course, that he's never yet been put to proving one of his high-profile cases in court; he generally targets heavily regulated public companies, and such companies generally can't survive a court battle with the government. But it makes for good press.
March 24, 2005
LAW: Making Schiavo a Federal Case
Charles Krauthammer has a characteristically tremendous column on the complexities and the tragedy of the Schiavo case, one that excerpts can't do justice (link via Vodkapundit). I don't necessarily agree with it all, but he covers a lot in a short space. I'll quote his conclusion:
For Congress and the president to then step in and try to override that by shifting the venue to a federal court was a legal travesty, a flagrant violation of federalism and the separation of powers. The federal judge who refused to reverse the Florida court was certainly true to the law. But the law, while scrupulous, has been merciless, and its conclusion very troubling morally. We ended up having to choose between a legal travesty on the one hand and human tragedy on the other.
I may or may not write more on this later, although I've probably been the wiser for steering clear of this so far. Putting this woman to death is an appalling tragedy and injustice, and the financial and other conflicts between her interests and her husband's are too overpowering to credit his uncorroborated word, regardless of whether his intentions are pure or not, which I can't judge. But standing for federalism has to mean something even when it has nasty consequences in individual cases. I know that's frustrating, especially as it means listening to lectures from fair-weather federalists who will about-face at the drop of a hat on federal court interventions in state procedures. I know there's a felt need for the Right to exercise the same determination to save the innocent as the Left does to save the guilty. But one of the essential principles of conservatism is that you set the best laws in advance and you stick with them even when you don't like the results.
March 23, 2005
LAW: This Is America?
The Secretary of Agriculture ("Secretary") appeals the District Court's award of attorney's fees and costs to several milk marketing cooperatives under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (2000). The underlying litigation involved a dispute between the cooperatives and the Secretary over the price of Class III butterfat. The Secretary argues that the District Court erred in concluding that the milk cooperatives were "prevailing parties" under EAJA and in calculating the amount of the award.
So, to summarize, we have a federal cabinet secretary setting - fixing - prices for dairy products, a staple commodity. And we have a federal court overturning this price-fixing, solely because - if you read the rest of the opinion - the Secretary failed to jump through enough bureaucratic hoops, requiring the price to be restored to a different price previously fixed by the same federal department. And we then have a federal court ordering that taxpayer money be given to a "milk marketing cooperative" for the benificient public service of filing a lawsuit over the absence of bureaucratic hoop-jumping.
In the immortal words of PJ O'Rourke, written long ago enough now to make you weep at how little has changed:
[F]arm policy, although it's complex, can be explained. What it can't be is believed. No cheating spouse, no teen with a wrecked family car, no mayor of Washington, DC, videotaped in flagrante delicto has ever come up with anything as farfetched as U.S. farm policy.
March 1, 2005
LAW: Supreme Court Invalidates Article V
The Supreme Court today held, in Roper v. Simmons, that the Eighth Amendment prohibits the execution of defendants convicted of capital crimes if the defendant was under age 18 at the time of the crime, on the grounds that such a punishment would be "cruel and unusual" within the meaning of the Eighth Amendment.
On its face, this may sound like the typical stuff of Supreme Court decisions. It is not. In fact, the Court has, at least as far as the death penalty is concerned, abolished the traditional mechanism for constitutional amendments by act of state legislatures embodied in Article V. A little explanation of the decision is in order to set the stage here.
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The Court had reached the opposite conclusion on execution of under-18 murderers and the like as recently as 1989, and its decision today, written by Justice Kennedy, does not even attempt to argue that its 1989 opinion had been wrongly decided; instead, it concluded that the meaning of the phrase "cruel and unusual punishments" had changed in the intervening 16 years.
The Court begins by following the interpretive method it used in its 2002 decision in Atkins v. Virginia (discussed here in one of my first-ever blog posts), which similarly overturned a recent precedent ("Penry") that had permitted executions of mentally retarded defendants:
Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded.
(Emphasis added). The Court rested today's conclusion that "standards of decency have evolved" on two major items of evidence. First, changes in state laws and practices:
30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. . . . In the present case . . . the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. In the past 10 years, only three have done so: Oklahoma, Texas, and Virginia. . . .
(Emphasis added). In short: "A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment."
What is really bizarre here, as I've noted before here and here, is the idea that new state laws can change the meaning of the constitution. In this case, the Court has determined that the actions of four state legislatures and one state court have accomplished a change in the meaning of the Eighth Amendment that would otherwise require an amendment to the Constitution.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .
Not much ambiguity there: to change the Constitution's effect on a particular law or rule, you need two thirds of the states or two thirds of both Houses of Congress just to propose an amendment, and three-fourths of the states (38, at present) to ratify one. By today's decision, that can be whittled down to four legislatures and one state court. (And note how this sets the stage for doing away with the role of the legislatures in this process entirely and handing over the consensus to, say, the Massachusetts Supreme Judicial Court and a few friendly courts in Vermont, Hawaii, etc.) And - unlike in the usual Article V situation - there's no indication that those legislatures knew they were changing the Constitution, and thus the deliberative process devised by the Framers is completely eviscerated.
Strangely, the Court at one point even tries to shift the burden of showing the constitutionality of state laws onto the states: "Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it." Of course, silly me, I always thought a state law didn't require a "national consensus," it just required a bill to go through the state legislature. So much for "laboratories of democracy" - consensus, apparently, now requires uniformity.
(Would the Court reach a similar conclusion about the malleability of the meaning of an amorphous term like "liberty" in the Due Process Clause in the Fourteenth Amendment? Maybe more states should pass laws against abortion - remind me again how many were on the books at the time of Roe v. Wade - I think it was 49).
The Court's reliance on the infrequency of such executions is also odd - that could just as easily be proof that the safeguards are effective in limiting the use of the death penalty to situations where it is appropriate. Besides, nothing in the constitution says prosecutors have to use a particular tool repeatedly or have it declared unconstitutional.
Second, the Court points to treaties and foreign law:
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. . .
As for foreign law, I can't well add to Justice Scalia's discussion of the foreign law issue in his dissent:
Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President-those actors our Constitution empowers to enter into treaties, see Art. II, §2 - have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces.
(Emphasis in original). Scalia goes on to note the myriad ways in which the majority of foreign laws differ from our own, ranging from the Fourth Amendment to the Establishment Clause to the right to trial by jury, and castigates the other Justices for ignoring foreign law except where it suits their purposes. As usual, he's right: when you start using interpretive standards that place no limits at all on how judges decide cases, you can't well expect to get any sort of consistency in return. There's just no chance that today's majority would consider any change in state or foreign law as evidence that "standards of decency have evolved" in a way that would produce a result favored by conservatives. Zero.
UPDATE: Orin Kerr notices that it appears that most of the "evolving" of standards here was done after the 1993 murder and 1994 conviction for which the defendant was sentenced to death. In other words, his sentence was constitutional under then-current standards when it was imposed, and of course he is no longer a minor.
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February 27, 2005
LAW: Lost Tribe?
Ramesh Ponnuru expends a great deal of energy in this NRO article suggesting that a 2003 essay by Prof. Laurence Tribe in the journal Green Bag is, essentially, fiction in its account of Tribe's use of the Ninth Amendment in the 1980 public-access-to-the-courts case Richmond Newspapers, Inc. v. Virginia. You should read the whole thing and judge for yourself - I think Ponnuru makes a compelling case for the inaccuracy of Tribe's account, and one that's perhaps less excusable since Tribe says in his essay that he was re-reading the briefs in the case as he wrote. But for the most part, Tribe seems more to be guilty of the kind of embellishment that's not uncommon in our memories of events decades past, particularly as they tie in to other, bigger things in our lives (in this case, the death of Prof. Tribe's father). In the end, Ponnuru's effort to place this particular slightly-tall tale into the framework of plaigarism and other serious academic sins seems like a stretch.
Anyway, while we're on the subject, I've been thinking about the Ninth Amendment, by the way, and have been having a thought but haven't done the research to back it up, so take this for what it is. The Ninth Amendment reads:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
As Ponnuru notes, there's a perennial debate between those, usually liberal judges and academics, who take the Ninth Amendment as something of a license for judicial "discovery" of "unenumerated rights," and those who, like Robert Bork's famous formulation, think that the lack of specificity in the Amendment leave it with no more legal effect than an "inkblot."
The Amendment's text comes after eight amendments preserving particular, enumerated rights against invasion by the new federal government, and before one amendment protecting the states as well. It clearly has a flavor of "I hope we didn't forget anything" about it, and given the legal maxim of expressio unius exlusio alterius (here, roughly, that making a list of things protected implies an intent not to protect what's not listed), it suggests perhaps that the Framers just wanted to avoid the argument that enacting the Bill of Rights somehow weakened rights that would exist in its absence, such as rights existing under state law.
Maybe. But here's a thought, and one that gives meaning to the amendment without turning it into a roving commission to overturn longstanding laws: one could also argue that the meaning of the amendment is to protect against new and unimagined federal invasions of rights so fundamental that nobody had thought to protect them because the law had not previously invaded them. Put another way: the Ninth Amendment wasn't intended to overturn anything existing at the time, but was intended to constitutionalize the existing sphere of rights enjoyed at the time as a floor below which new enactments could not fall. Anyone with more detailed knowledge of the history of the Ninth Amendment have thoughts on the issue?
February 26, 2005
LAW: Evidence of Injury
I have, in an effort to reduce my intake of bile, mostly avoided reading Mark Kleiman since the election, but in the course of finding great humor in the New York Times' sudden discovery - now that a legal defense is needed for one of its reporters - that the leak of Valerie Plame's identity as a CIA "operative" may not have involved a crime after all, Tom Maguire points us (indirectly) to this Kleiman post from 2003 arguing that the disclosure may have involved a violation, and conspiracy to violate, a provision of the Espionage Act, 18 U.S.C. 793(d), which imposes stiff criminal penalties on the following:
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it.
Now, the usual disclaimers apply about trying to construe this statute without having read the surrounding provisions or the caselaw construing it. But Kleiman, a non-lawyer, has raised this point, so let's just stay with his analysis of the statutory text. Kleiman argues that a violation of this infrequently-used statute would be easy to prove in this case. Let's walk through his reasoning:
[N]otice how much weaker the scienter requirement is under the Espionage Act than under the Intelligence Identities Protection Act: "reason to know" that the information "could be used" to the injury of the United States.
So far, so good; "reason to know" does indeed make it unnecessary to prove the actual knowledge or intention of the person making the disclosure, and instead focuses on objective facts that such person would be in a position to know, which is easier to prove.
It would be very hard to argue that the Plame disclosures weren't of information that the disclosers had reason to know could be used to damage the United States.
This is where I think Kleiman is all wrong. The violation being urged here is, at least based on the public record as it stands, in the nature of a technical violation whose potential for harm required a certain degree of extrapolation - i.e., that her identity as a CIA operative some indeterminate number of years earlier was argued to be damaging mainly because of the precedent it set and the potential, still debated, of harm for sources who may have been known to associate with her. Assuming that the identity of a CIA agent is "information relating to the national defense" - I would think so, under common parlance, but there may be precedents under the statute to suggest a more limited reading of the term - it would not at all be difficult or unusual for a jury to determine that this was not "information . . . which . . . could be used to the injury of the United States or to the advantage of any foreign nation," if under all the circumstances it appeared that Plame's ties to undercover work had grown sufficiently stale that there was no longer anything resembling an active operation left to compromise.
Moreover, in a case brought under the Espionage Act the timing of Valerie Plame's most recent foreign assignment and the vigor with which the CIA was keeping her identity under wraps would both be irrelevant.
Technically irrelevant, in the sense of not being a statutory requirement, as it is under the Intelligence Identities Protection Act. But you can't seriously argue that it has nothing to do with whether her identity as a CIA employee would damage national security if exposed. Clearly, little if any damage could be done by disclosing that she was a Langley-based analyst. Equally clearly, damage could well be done if she had still been an active undercover agent. The extent to which she was still involved in things that could be damaging if her identity was exposed is, in fact, the crucial question in figuring whether any harm could reasonably be expected to befall the nation's security from the disclosure.
There's also the argument, of course, that potential harm to national security would be balanced against ways in which the disclosure could benefit national security; a statute with this sort of potential-harm requirement would presumably afford the defendants the chance to argue that the overall benefit rendered the potential for injury, on balance, trivial. Even though you could make the "it's not theirs to decide" argument in response, the "reason to know" standard would seem to necessarily incorporate what the person would, in all the circumstances, have reason to believe would be the overall consequences.
Now, the main benefit of exposing Plame's identity was obviously political - to defuse his attacks on Bush by demonstrating that Wilson was basically a hack who got the assignment through his wife - so I don't think such a defense would be a real good fit here. Still, the damage caused by the charge that the president lied to the world about Saddam's efforts to get uranium in Africa is damage that could go to the nation's overall reputation - that was certainly an argument raised by many of Bush's antagonists - and showing the problems with the charge could, I suppose, be argued to ameliorate that harm. As I said, I'm not endorsing that argument, but it does suggest yet another avenue of complication for Kleiman's analysis.
Moreover, the fact of a prior disclosure, unless that disclosure had been so convincing and so widely publicized as to preclude the possibility that any additional damage would be done by repetition, would not be a defense.
Again, this seems obviously wrong. The existence of the B-2 "stealth bomber," to pick a random example, is a fact of our security whose disclosure could harm our ability to conduct surprise attacks. Except for the fact that the bomber's existence is not at all a secret. There are many areas of law that turn on disclosures of information, and the idea that something was not really much of a secret is a routine and obvious defense.
Anyway, at a minimum, Kleiman breezes past a whole battery of problems with using such a statute in a case where there may well be strong arguments on the facts that Plame had been out of the field too long for any of this to have any real-world impact.
LAW: But It Wasn't "Sexual Relations"
February 16, 2005
BASEBALL/LAW: Proof of Nothing
February 12, 2005
LAW/POLITICS: Nah, Just The Fox, Ma'am
It's a time-honored publicity technique: prepare an ad likely to be rejected by media outlets, and when they turn you down, complain to the press that you're being denied a fair hearing. . .
February 8, 2005
LAW: Apology Accepted
You know, lawyers get a bad reputation for a lot of reasons, and unlike a lot of people in the legal profession, I tend to agree with a lot of the criticisms. But I have to say: I feel a real surge of professional pride when I see the Powerline guys take on journalists. Experienced litigators just have a much more precise view of what constitutes evidence and how you go about proving and verifying things than a lot of journalists do, and when those guys get into a fight with a journalist, the journalist almost always winds up looking like he brought a knife to a gunfight.
In that vein, it's encouraging to see a complete apology from Bill Moyers as a result of John Hinderaker's latest efforts. Hinderaker completely exposed Moyers' reliance on third-hand hearsay, and he had Moyers dead to rights.
February 7, 2005
LAW: Rocket Docket
There are a number of noteworthy features to Senate Bill No. 5, the Class Action Fairness Act of 2005, which was recently voted out of the Judiciary Committee to go to the full Senate. One that I'm sure the federal appeals courts will hate is this one, permitting appellate review of orders remanding certain class actions to state court:
`(c) REVIEW OF REMAND ORDERS-
Now, there's an escape hatch here - the court can get the parties to consent to a saner schedule for briefing and argument - but if the plaintiffs are in the mood to be obstructionist (defendants won't have any such incentive, given the provision in subpart (d) that says they lose if the court doesn't move fast enough), as is more likely to happen in complex tort cases with multiple plaintiffs' firms jockeying for advantage, the court could find itself having to get two sets of briefs, review them, maybe hold argument, and render a decision all inside of two months, a schedule that's miles from the usual pace at which federal appeals courts work. (One result is that I assume most courts will routinely decide cases without oral argument if there's no extension of time).
February 2, 2005
LAW: Indefensible Acts of Congress?
A decision last Friday by the D.C. Circuit, Taucher v. Brown-Hruska (No. 04-5026), raises an intruiging set of questions about the ethical obligations of government lawyers in defending the validity of laws and regulations before the courts. The underlying legal dispute in Taucher involved a lawsuit to declare a portion of the Commodity Exchange Act that required registration with the CFTC for anyone providing certain types of investment advice about commodity futures trading to be an unconstitutional infringement on free speech. The plaintiff publishers eventually won, convincing the court that the statute was unconstitutional as applied to them. (Slip op., at 4).
Taucher deals with the plaintiffs' request for legal fees under the Equal Access to Justice Act, 28 U.S.C. 2412, which allows parties who prevail in actions against the government to recover fees if the government's legal position was not "substantially justified," although the statute provides an exception under which a court can deny fees if "special circumstances would make an award unjust." The district court awarded fees to the plaintiffs, but the D.C. Circuit, in a 2-1 decision, reversed the award.
The court nonetheless refused to accept the CFTC's argument that it could not be penalized for arguing that an Act of Congress was constitutional, given that an executive agency is charged with the constitutional duty of carrying out Acts of Congress, not deciding whether to follow them. (Slip op. at 10-11). "Theirs not to reason why," in a sense. The court refused to accept the principle "that the government is forever and always 'substantially justified' in defending in court the constitutionality of an Act of Congress, whatever the statute may say, and on any ground a legal mind may conceive . . . The question under EAJA remains whether that position was substantially justified." (Slip op. at 11-12; quotation omitted).
Ultimately, however, the court determined that the unconstitutionality of the provisions in question had not been clear enough from controlling Supreme Court or D.C. Circuit precedents, and had been a sufficiently close case on the particular facts presented, that the government's position could not be said to be without "substantially justification" - a fairly common result, actually, given federal courts' frequent hesitancy to shift the costs of litigation to losing parties.
Of course, you can argue that EAJA is a remedial statute - i.e., designed to benefit plaintiffs with valid claims - rather than a penalty (after all, an EAJA award is paid by the taxpayers, and the lawyers themselves aren't disciplined). Thus, one could look at a failed CFTC defense and an award of fees and say, "the system worked." But the court's analysis of the duty to defend definitely stands as a warning to executive agencies that there can be adverse consequences to defending Acts of Congress, even if the agency may be duty-bound to do so.
January 30, 2005
LAW: The Caption Says It All
From earlier this week: Frank J. celebrates the anniversary of Roe v. Wade.
January 12, 2005
LAW: Great Moments in Opening Statements
Michele has a doozy. Why lawyers use analogies that are this easy to distinguish is beyond me.
December 31, 2004
BLOG: Turning Over A New Leaf
As I've done in the past, I'm creating brand-new categories for the new year. You'll now go to Baseball 2005 for new baseball entries, Politics 2005 for new politics entries, War 2005 for new war entries, and Law 2005 for new law entries (the Law category hadn't needed an overhaul last year). I'll shortly be updating the link to baseball-only posts at the top of the page as well to send you to Baseball 2005.
Happy New Year!
Posted by Baseball Crank at 5:18 PM | Baseball 2004 | Baseball 2005 | Blog 2002-05 | Law 2002-04 | Law 2005 | Politics 2004 | Politics 2005 | War 2004 | War 2005 | Comments (0) | TrackBack (0)