November 27, 2007

Hard drive crashes suck

The title pretty much says it all.

March 5, 2007

Status update

I will be continuing to guest-blog over at

In addition, I am starting up a new blog with my friend and former colleague Ron Coleman, who formerly blogged at Dean's World. We will be blogging at Likelihood of (Yes, it's a law pun. We lawyers are funny that way.) So go check us out.

February 26, 2007

Not dead yet...

I know I've been gone for a very long time, but I wanted to announce that I'll be guest blogging over at Overlawyered this week.

May 12, 2006

Not Fair

Yeah, it's been a while. Ran out of things to say. And lazy. Maybe I'll start back into this slowly..

So according to the Wall Street Journal:

Of 1,003 U.S. adults surveyed in a telephone poll, 29% think Mr. Bush is doing an "excellent or pretty good" job as president, down from 35% in April and significantly lower than 43% in January. It compares with 71% of Americans who said Mr. Bush is doing an "only fair or poor" job, up from 63% in April.

The article then goes on to characterize "excellent or pretty good" as "positive", and "fair or poor" as "negative". Well, I'll grant them "poor", but since when is "fair" a negative assessment? If I say I think the President is doing a "fair" job (which I do), I don't mean that negatively. I mean that in a neutral-to-positive "not bad, but could be better" way.

So why not just break down the results as "excellent", "pretty good", "fair", and "poor"? Wouldn't that be fairer reporting?

November 6, 2005

Dog bites man

Headline of an Editorial in the New York Times: The Time Is Wrong for Tax Cuts

November 1, 2005

How to demonize a judge in twelve steps

With the nomination of Judge Sam Alito to the Supreme Court, I thought it might be a good idea to dust off this list, to help out some of the groups opposing his nomination.

Rules for demonizing a judicial nominee
  1. Select cases where the judge ruled against a sympathetic party in favor of an unsympathetic one. (e.g. employee vs. employer, injured party vs. negligent rich party, mistreated defendant vs. mean ol' police, anybody vs. insurance company, drug company, big tobacco, etc.). If possible, ensure that the sympathetic party is (a) poor; (b) minority; (c) female; (d) handicapped; (e) an immigrant; (f) a child; and (g) abused.

  2. If the judge was in the majority, describe the resulting harm suffered by the losing party. Never mention that other judges sided with his opinion as evidence of his reasonableness; on the other hand, if you can find an already-demonized judge who sided with him, flag that as proof of his extremism.

  3. If the judge was in the minority, point out how out-of-the mainstream he was because people disagreed with him. (This one also works if the judge's opinion was reversed on appeal.) Always characterize his opinion as a "lone dissent" -- as if there were another type for a circuit court judge -- to make him sound even more isolated.

  4. In any non-unanimous case, cite the opinion of a fellow judge who disagreed with your judge as if that opinion were established fact. If this opinion predicts bad outcomes that might result from this opinion, treat these outcomes as if they have already been realized.

  5. Never mention that the job of a judge is to apply the law, rather than to make policy. Treat his opinions as if they represented his policy preferences rather than the legislature's.

  6. Never ever ever ever ever mention that the job of a lower judge is to apply the decisions of higher courts. Treat his opinions as if they represented his personal views of what the law should be. (Remember, if he disagreed with the Supreme Court, he'd have just ignored the Court. The fact that he went along with it shows he agrees.)

  7. Never mention the procedural posture of the case, or standards of review. Words like "de novo" or "abuse of discretion" are just confusing, anyway. Act as if an appellate judge was making factual findings, rather than reviewing the findings of a lower court or an administrative agency. Treat failure to reverse those findings as agreement with them.

  8. Always assume "constitutional" or "legal" means the same thing as "a good idea." If a judge rules that one party is permitted to do X under the constitution or law, report it as "Judge so-and-so approves of X."

  9. Remember that a judge is never deciding a particular case; he is always announcing a general policy. If he rules that this specific plaintiff didn't have enough evidence, he is really saying that the sort of behavior allegedly engaged in by defendant is always justified.

  10. Remember that a judge is never applying a general policy; he is always deciding a particular case. If he rules that the law doesn't recognize that legal theory, he is really saying that he approves of what this specific party did.

  11. All allegations of plaintiff are factual when judge rules for defendants. And vice versa.

  12. This is most important: NEVER ADDRESS THE ISSUE OF WHETHER THE OPINION WAS RIGHT. Remember, if you don't bring it up, the media won't, either.

There's some obvious generic advice: use terms like "ultra-right wing," "ultra-conservative," "reasonable" (to describe a law struck down by the judge) and "fundamental" (to describe a right infringed as a result of the judge's ruling). Just follow those twelve easy steps, and soon you could be a member of People for the American Way.

October 31, 2005

Alito: The pendulum swings back?

So, it's official: the new nominee is Third Circuit Judge Sam Alito.

Shorter version of President Bush's introduction of Alito this morning: "Hey, everyone: he's not Harriet Miers! This one's qualified!"

Speaking of the Miers-Alito contrast, does this mean that we've finally recovered from the Bork fiasco? In 1987, Reagan's nominee Robert Bork was, well, Borked. Ted Kennedy took everything Bork ever wrote in his extensive career, twisted it beyond recognition, and turned an admittedly conservative judge into a monster. This led to an almost two-decade long period in which the strategy of Republican presidents was to give us nominees who were easily confirmable because they hadn't written much, hadn't done much controversial, had no history to be twisted. Miers was the apotheosis of this Stealth Nominee strategy: a nominee with no written record because she had no record of any sort.

Alito, while not a rigid ideologue -- though he's sure to be painted as one by the leftist advocacy groups such as NARAL, NOW, PfAW, and AfJ which use judicial fights as fundraising tools -- is in other respects the polar opposite of Miers. Where Miers spent her whole legal career in private practice, Alito was in government, working first in the Office of the Solicitor General, then as a federal prosecutor, and finally as a federal judge. Where Miers never wrote anything beyond some bland pablum for the bar association newsletter, Alito wrote hundreds of opinions. Where Miers did almost no work in federal courts, Alito argued at the Supreme Court. Where Miers was virtually unknown outside of Dallas legal circles, Alito was on most short lists for the Court.

While Alito is certain to be demagogued, he's also very likely to be approved, barring the revelation of some personal skeleton in his closet. So have we finally turned the corner on the notion that conservative nominees must be unknowns in order to be confirmed? Both Roberts and Alito have long paper trails -- Alito's being particularly significant, since it represents a judicial background. (Nobody will be able to claim they need more paperwork on him before making a decision.) So hopefully what we have now is a new paradigm, in which conservative presidents no longer feel as if they have to hide their nominees' backgrounds in order to be confirmed.

(Of course, this confirmation fight will still be muted by the fact that Alito is filling a fellow conservative's seat on the Court even if the left wing groups are trying to reinvent Sandra Day O'Connor as a liberal for rhetorical purposes. Wait until Stevens steps down. Then the real battle begins.)

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