Law Archives

September 16, 2003

Equal protection, unequal situation

A lot of conservatives are upset about the 9th circuit's decision to postpone the California recall election, finding it to be more unwarranted judicial activism -- and again, as in Florida and New Jersey, activism which coincidentally happens to benefit Democrats. There has been a lot of criticism about unelected judges taking elections out of the hands of the people.

Since I do think the U.S. Supreme Court made the right call on Florida 2000, I can't rightly object to judges intervening in an election. Equal protection is a valid reason, as longstanding precedent as well as Bush v. Gore make clear, for the federal courts to intervene in the electoral process. And at least this intervention, unlike the Florida Supreme Court's, took place before the election, so it's not quite so obvious that they're manipulating the outcome to benefit the Democratic candidate.

That having been said, it seems to me that the application of the Bush v. Gore precedent to this recall situation does not compel this result.

  1. Bush v. Gore held that varying standards from district to district were a problem. That is, a chad hanging by two corners might be considered a vote in one county and a non-vote in another, based on the whims of poll workers.
    As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.

    The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a
    vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.

    On the other hand, the California election doesn't present that problem. It merely presents the possibility that more ballots will be discarded in some counties as a result of errors -- errors by the voters, not by poll
    officials, though those errors may be facilitated (though not caused) by the choice of ballot technology used. And, indeed, Bush v. Gore explicitly did not address that issue:
    The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
    There's a big difference between mechanical error rates being slightly different and poll workers being allowed to pick and choose which ballots they wish to count without any possibility of oversight.

  2. Even if the court found that different error rates presented a constitutional problem, that doesn't justify this decision. While other forms of ballot might have a lower error rate in general than punch cards, that does not mean that a newly-implemented system in these California counties will have a lower rate than an established punch card system. Training poll workers (who, let's face it, aren't the sharpest knifes in the drawer) to use entirely new technology in a short time period doesn't inspire much in the way of confidence that they won't make mistakes.

As to what is going to happen, I have no idea. I've got to imagine that the Supreme Court is going to be extremely reluctant to get involved. [Update: while I was writing this, word came down that the 9th circuit is getting involved, asking the parties to file briefs on whether they should hear the case en banc. Would they do so if there weren't a decent chance of reversing the panel's decision? I don't know.]

September 17, 2003

A right if I say it is

Several conservatives (including James Taranto, Eugene Volokh, and The Corner's Roger Clegg) have cited this op/ed by Yale Law professor Bruce Ackerman criticizing the Ninth Circuit's ruling in the recall election case. It's true that as a staunch liberal, Ackerman's criticism of the opinion carries some nonpartisan weight, and that's what these commenters have noticed. (Eugene's post does distinguish between different elements of Ackerman's piece.) But Ackerman's arguments against the decision are nonetheless flawed, because they illustrate the same problem the decision itself does: policy-making in the guise of jurisprudence. Ackerman argues that the decision is bad because, inter alia:

  • It "disrupts the core First Amendment freedom to present a coherent political message to voters" because campaigns planned their strategy around a short campaign.
  • It "disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort," because California issues may be "swamped by national politics" of a presidential primary.
Now, I don't deny that the decision will disrupt careful campaign planning, or that it will annoy voters who thought they could get this out of the way before the presidential primary. But what on earth do these things have to do with the first amendment? Ackerman is simply picking his own policy preferences and then dressing them up in constitutional-sounding language.

This ruling was wrong because there's no legal basis for it; as I noted yesterday, equal protection simply isn't implicated by using punch cards -- and even if it were, there's no good reason to believe the remedy proposed by the Ninth Circuit would actually improve the situation.

But there's no first amendment right to have an election scheduled at a time when your campaign is "designed to reach a cliimax," and then there's no first amendment right to have a separate election so that more people will pay attention to your issues than to other issues. Californians do have a right to the latter, but it's a legal right, established by the California legislature as California policy, not a federal constitutional right. Why do legal scholars like Ackerman insist on trying to turn every policy question into a Constitutional matter? That's exactly what the Ninth Circuit did, and that -- not because of Ackerman's arguments -- is why the Ninth Circuit was wrong.

September 24, 2003

May I speak to Mr...

Victory... for evil. If you're one of the 6 billion people on the planet who were eagerly awaiting October 1st, when the national Do-Not-Call list kicked into action, you're going to be disappointed. A federal judge has just ruled that the Federal Trade Commission exceeded its statutory authority when it established the list. Hence, no more Do-Not-Call list, at least for now.

Actually, I can't get too upset about this; while I think telemarketers are slightly below Uday and Qusay on the humanity scale, I applaud any judge who takes the Constitution seriously enough to require regulatory agencies to have legal authority for their actions. Although, frankly, the ruling (text here) seems somewhat shaky; the court found that even though Congress appropriated money for the FTC to run the list, Congress hadn't authorized the FTC to establish it. But it's not as if this will have any long lasting impact; if the decision isn't overturned on appeal, authorization should sail through Congress, given that 50 million Americans cared enough to sign up. This is exactly the sort of feel-good legislation Congress excels at.

October 30, 2003

Fair And Balanced II

Is Donald Luskin insane? If this post on Atrios is what it purports to be, he just might be; at a minimum, he sure doesn't have any common sense.

Dear “Atrios”:

This firm represents Donald L. Luskin, a Contributing Editor to National Review Online and author and host of, among other activities. You recently linked to Mr. Luskin’s October 7, 2003, posting on his website entitled “Face To Face With Evil,” in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption “Diary of a Stalker” for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution.

There's more in that vein.

Threatening a libel suit because Atrios (parroting Paul Krugman) accused Luskin of "stalking"? There are so many things wrong with this that I don't know where to begin. But let's start with this: for a statement to be libel, it must be untrue. Not only must it be untrue, but it must be perceived as a statement of fact. While "stalking" is certainly a real crime, it is also a figure of speech. Would the reasonable reader, seeing that comment, think that Donald Luskin has committed the crime of stalking -- that is, causing a reasonable fear of bodily harm in a victim through a course of conduct directed at that person? Or would the reasonable reader understand it to be a metaphor, understand that Luskin is being accused of being unduly obsessed with attacking Krugman's views?

Not only does the context here make it highly likely that it would be understood as the latter, but all the surrounding circumstances make it even clearer. That is, we have an anonymous speaker making the accusation on the internet. Most people who spend time on the internet quickly realize that hyperbole and overheated rhetoric is common, and doesn't have any special significance, particularly when anonymous.

The second problem with the threatened lawsuit is that it's unlikely that Atrios would be held responsible for the comments made by his readers. Atrios is providing a forum for their views, but that's not enough. Congress, in one of the few things it has done right, has provided a safe harbor for those who run "interactive computer services" so that they're not liable if a user of those services makes a defamatory statement. (That's the general rule; there are exceptions.)

Now, I should note that this is merely a demand letter, not a lawsuit, and it's possible that it is meant solely to intimidate. But if it actually provides a preview of Luskin's future legal strategy, then he and his attorneys need their heads examined. Didn't they learn anything from the Fox News-Al Franken suit? These sorts of suits make the plaintiffs look foolish and bullying, and give extra publicity to the defendants. And that's all they accomplish. What can he be thinking?

November 6, 2003

Judge not...

Stuart Buck makes a compelling and detailed argument that the Senate's rejection of Miguel Estrada's nomination to the DC Circuit meets the test for discrimination.

But disparate impact and "pattern or practice" claims aren't the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven't been mistreated. See, e.g., Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The district court found that HCCAA did not "discriminate generally on the basis of sex" because nearly half of its supervisors were women, women were on its Board of Directors, and one of the vacant Field Representatives positions had been held by a woman. Though these statistics may be some evidence of absence of discrimination, especially in a disparate impact case, they do not constitute an adequate basis for a finding of non-discrimination in a disparate treatment case involving a particular instance of failure to promote.").

And that's as it should be. There is no rule that an employer is innocent of racial discrimination unless it fired or refused to hire every single racial minority in sight. It's enough to show that discrimination was involved in the plaintiff's individual case. Otherwise, there would be no remedy in situations where the employer discriminated against one or a few individuals but not against everyone.

There's lots more; Stuart shows that a similar white nominee received far less scrutiny than Estrada did, and that the explicit words of Estrada opponents make the case that his race motivated their opposition. Go read it.

Of course, anti-discrimination laws don't apply to judicial nominations, but that's not really the point.

November 11, 2003

In the main

The New York Times editorializes on Bush's judicial nominations, arguing (once again) that Senate Democrats aren't behaving unfairly in filibustering Bush's nominees. First, they argue that the statistics show not many nominees are being blocked, but that isn't the main thrust of their argument:

What conservative interest groups are unhappy about is that Senate Democrats are balking at a small number of nominees who lie well outside the mainstream. How far outside? Janice Rogers Brown, a California Supreme Court justice nominated to the United States Court of Appeals for the District of Columbia Circuit, has publicly questioned incorporation, a well-settled legal doctrine holding that important parts of the Bill of Rights apply to the states. (At her confirmation hearing, she insisted that in fact she now accepts incorporation.) Alabama's attorney general, William Pryor, whose nomination to the United States Court of Appeals for the 11th Circuit has been kept unconfirmed through filibuster, called Roe v. Wade "the worst abomination" of constitutional law in our history.
I'm not sure quite where they get the idea that Brown has "questioned incorporation" -- other than from the People For the American Way hit piece on Brown, which seems to leave out an awful lot of context. (I suspect she's talking solely about the establishment clause, but there's no way to be sure, and I suspect even more strongly that the Times hasn't checked original sources on this point.) But in any case, are they implying her to be a liar when she "insisted" she "now accepts incorporation"? If not, what's their point here? She once was "outside the mainstream," but now she isn't? Or secretly inside her head she is?

As for Pryor, if the Times' editorial board thinks that opposition to Roe is "well outside the mainstream," the the Times' editorial board might want to venture outside the borough of Manhattan. Even among pro-choicers, there are many (such as yours truly) who agree that Roe was a poor ruling. And as for the substance of the ruling, there are an awful lot of pro-lifers in the country. Not a majority, but enough, surely, that being pro-life cannot be considered "outside the mainstream" any more than being pro-choice can. (Or, let's put it this way: there are more pro-lifers than there are who think that the partial birth abortion ban was a horrible law. The Times is in the latter category -- but I don't think the paper's editors consider themselves to be "outside the mainstream.")

If a majority of the Senate supports a particular nominee, where on earth do the editors get the gall to claim that the nominee is "outside the mainstream"? Who elected the Times to speak for anybody?

Most fundamentally, what kind of argument against a judge is it that the judge is "out of the mainstream"? Are judges supposed to be politicians, or are they supposed to be independent, judging cases on their own merits regardless of where the mainstream is? Wasn't the Supreme Court pretty "out of the mainstream" when it ruled that the death penalty was unconstitutional? Or school prayer? Or that Miranda warnings needed to be given? Or that schools should be desegregated, or abortion legal, or flag burning, or... well, you get the idea. Aren't these all decisions that the New York Times celebrates? (It's rhetorical: the answer is "Yes.")

One might suggest that editorial's writers mean -- though they don't say so -- that regardless of what the public's views are, the nominees are outside the mainstream of current jurisprudence. But that's an even stranger complaint, and one the Times can't effectively make. Why? Because, like all doctrinaire liberals, the Times believes in a "living" Constitution which "evolves" to meet societal standards. The only way they can justify their support for rulings such as a ban on the execution of the retarded or the unconstitutionality of sodomy laws is to suggest that these rulings reflect the current mainstream. So they can't now suggest that the judicial mainstream is far from the public mainstream.

The only way to reconcile these points is to realize that the editorial writers simply define their own views as "the mainstream," and then demand that judges rule that way because it fits their preferences. Which is hardly a useful principle for running the judicial branch.

November 24, 2003

Our legal system's new motto?

In an episode of the Simpsons entitled Bart the Genius, Bart Simpson switches his aptitude test with that of the class genius, causing him to be mistakenly placed in a school for gifted children. All the other schoolkids are real geniuses, and know things Bart doesn't. But he does manage to answer one question:

Ms.M: Bart, what other paradoxes affect our lives?
Bart: [looks around nervously; all stare at him]
Well, you're damned if you do, and you're damned if you don't.
For some reason, that little vignette came to mind when I read's latest legal horror story. A telemarketing firm attempted to punish a racist employee, but ran into difficulty because a federal court bought the argument that the racism was actually the employee's religion.
A law firm newsletter comments that henceforth employers "may risk allegations of religious discrimination if they fail to protect employees' religious rights to believe in white supremacy. At the same time, they may risk allegations of race discrimination by nonwhite employees supervised by white supremacists.
Damed if you do, damned if you don't.

And that's just the tip of the iceberg. If a judge doesn't buy the argument that racism is a religion, trial lawyers can always turn to the racism as mental illness theory, and then the Americans with Disabilities Act can kick in.

Of course, in this instance, we are talking about a telemarketing firm, so they deserve whatever happens to them. But unfortunately, I think the law may not be quite so industry-specific in its application.

January 23, 2004

So what about "Hickory Dickory Dock"?

Via Overlawyered, I see that one of those ridiculous lawsuits we always read about has been resolved. In this one, Southwest Airlines was sued last year because a flight attendant had used the phrase "Eenie meenie minie moe," and two black passengers claimed that they suffered emotional distress as a result. The jury found for the airline.

Of course, defenders of the current tort system will cite this case as an example of the system working: it was a bogus case, so when the case went to trial, the defense won. Just what we want to happen.

Except, of course, that the case went to trial. That's tens of thousands of dollars the airline had to spend, just to prove that a nonsense nursery rhyme wasn't maliciously used to injure the passengers. And it wasn't just the airline that had to expend resources:

[The trial] began on Tuesday before an eight-member jury.

The jury returned its verdict in favor of the airline Wednesday evening.

So even the correct outcome for this frivolous trial cost eight people two days of their lives.

Keep in mind what the basis of this lawsuit was: it wasn't that the flight attendant had used racial slurs. In fact, the flight attendant never mentioned race at all. Rather, the flight attendant's innocent, non-racial comments offended some people because they thought it might have some tenuous connection to a race-based reference from decades earlier. And that was enough to trigger a lawsuit and a trial.

Unfortunately, when the courts in the mid-1980s decided to expand the "hostile work environment" theory of discrimination, they opened the door to lawsuits where mere offense -- a vague and highly subjective standard -- can create liability. Fortunately the jury made the right decision here, but given that the "hostile environment" theory has now moved beyond the workplace to the public accommodations venue, nobody can feel free to speak -- even in innocuous children's rhymes -- without fear of incurring tens of thousands of dollars in costs if a member of some racial minority is having a bad day.

Continue reading "So what about "Hickory Dickory Dock"?" »

January 29, 2004

The United States Mint is unconstitutional!

You see, Article I, Section 8 of the Constitution, clearly states that "The Congress shall have power to ... coin money, regulate the value thereof, and of foreign coin." But Congress does not coin money nowadays; the U.S. Mint does! This is obviously an unconstitutional and illegal usurpation of Congressional authority!

And what of regulating the value of foreign coin? The price we pay for euros and British pounds isn't set by acts of Congress, as the Constitution requires. It's time to take back our country from the clutches of the currency traders!

Have I convinced you? Only if you were anti-Mint and anti-currency-trader in the first place, perhaps. Just as you'd have to already be opposed to the war in Iraq to believe the following:

The Iraq war is in direct violation of the United States Constitution.

It's the same ridiculous argument as above; argue that a piece of Article I, Section 8 is being violated, while conveniently ignoring that the last paragraph of that section states that Congress has the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers".

It's a nice try, but good luck getting the Supreme Court to agree.

February 6, 2004

Lawsuit kickoff

By now, I'm sure many people have heard of the idiot who became the first to file a lawsuit against Janet Jackson's breasts (or something like that). The news coverage has quoted the claim that the stunt caused people to "suffer outrage, anger, embarrassment, and serious injury." But the claim that most amused me was actually this one:

15. Moreover, because defendants knew that the Super Bowl and the Super Bowl half-time show would have a worldwide audience and knew that for much of the world, these events would reflect the standards and the reputation of Americans abroad, plaintiffs and members of the class have been defamed by the defendants and have suffered injuries and damages to their reputations as Americans. Defendants knew or should have known that the standing and credibility of Americans in the world would be harmed as a result of the defendants' self-indulgent and self-serving acts.
Words fail me. (And believe me, that's rather unusual. Just ask my wife.) But if I can sue anybody who embarrasses me as an American, look out, U.S. Congress, Pete Rose, and Geraldo Rivera.

Speaking of "self-indulgent and self-serving acts," I know an attorney who files a frivolous lawsuit to get his name in the newspaper. But it turns out he's not just an attorney; he's also a politician:

In addition to his law practice, Mr. Ritchie served as a member of the Tennessee House of Representatives in the 98th, 99th, and 100th General Assemblies, serving on the Finance, Ways and Means and Judiciary Committees and the Select Committee on Ethics.
Well, that explains it.

February 9, 2004


Gregg Easterbrook is usually sensible and almost always entertaining, but he has some weird obsessions. For instance, he's fanatically anti-SUV, once writing an article that called them "sociopathic." Now he's having a hissy fit over last Thursday's decision by Judge Shira Scheindlin that the NFL has to let Maurice Clarett enter the draft, despite Clarett's age.

He accuses Scheindlin of poor legal reasoning, but he illustrates poor reasoning himself, repeatedly using flawed analogies:

Why shouldn't a 19-year-old be allowed to be an airline pilot--how dare the airlines keep 19-year-olds out of the cockpit? Numerous professions require minimum age, possession of degrees or minimum years of training experience for entry. Judges don't order airlines to allow 19-year-olds at the controls, even though age and experience rules clearly place restraints on the bargaining power of 19-year-old aspiring pilots. But then--judges fly on planes, so they don't want them to crash. Federal judge Shira Scheindlin, who yesterday ordered the NFL draft open to anyone regardless of age, knows that if the NFL crashes that won't affect her.
Where do I start? First, the NFL's rules are not safety rules. It can't "crash." Second, "professions" don't require minimum age, possession of degrees, or minimum years of experience. Employers do. But not in conspiracy with each other; they decide individually what age they want. Of course, there are some professions with industry-wide requirements -- but those, such as airline pilot, are imposed by the government, not by companies conspiring together.

And as a matter of law, he's simply wrong.

And the NFL is one single business entity, creating one product: its season. Scheindlin's order is written as if pro football were an open marketplace of multiple independent businesses--anyone could field a team and challenge the Packers to a game, the way anyone can market a chewing gum and challenge Wrigley. But a pro sports league is a single business entity with multiple divisions. In the case of the NFL, the league is a business entity with 32 divisions, all having a shared interest in keeping product quality high. Anti-trust law, called on in Scheindlin's decision, binds General Motors when it competes against Ford. But the Rams aren't competing with the Steelers in that same way--the Rams aren't trying to put the Steelers out of business, nor are they trying to win over the Steelers' customers. In fact, the Rams and all other NFL teams strongly desire that the Steelers and all other NFL teams stay in business, which is why NFL teams equally share television revenues, their main source of income. Scheindlin's decision treats the NFL as 32 separate businesses; she just doesn't understand sports economics.
Perhaps, but Easterbrook just doesn't understand sports law. The teams aren't competing in the market for customers -- but they are competing in the market for players, and the NFL is 32 separate businesses. Some leagues -- Major League Soccer, for instance -- have set themselves up as single entities. That is, one company owns everything -- all the teams, contracts, etc. But the National Football League isn't such a league. Given the prominence of the antitrust suits the NFL has lost -- the Oakland Raiders suing to move to Los Angeles, for instance -- you'd think Easterbrook would know that.

Continue reading "Easterhuh?" »

March 31, 2004

Look but don't touch?

Eugene Volokh's been blogging about child pornography lately (see here and here) and then follows up by responding to a reader's question:

Someone asked: Are pictures of naked children per se child pornography? As I understand it, most laws define child porn as pictures of minors engaging in sexual practices or lewdly exhibiting their genitals; that is the basis on which the child porn statutes were upheld against a First Amendment challenge. A picture of a nude child where the genitals aren't lewdly exhibited -- which probably refers to how they're likely to be seen by the typical observer, and not to the intentions of the minor -- presumably wouldn't be child pornography.
In fact, Eugene is exactly right, at least in one state, as this story about the cinematic classic Girls Gone Wild explains :
A video producer under fire for selling tapes of body-exposing behavior during spring break bacchanals won an important legal point when a Florida trial court ruled that showing breasts of girls did not meet the state's definition of sexual conduct.

Florida law bars the promotion or possession of photos or videotapes that depict sexual conduct by a child under the age of 18.


The defense countered that the images of a bare-chested minor did not constitute sexual conduct within the meaning of Florida law. According to the court ruling, state law says:

"Sexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation or sadomachistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party. ."

"The videotape image of the minor does not reflect any actual physical contact with her clothed or unclothed breasts," wrote Judge Michael C. Overstreet of the Circuit Court of the 14th Judicial Circuit in Bay County, Fla.

And no, I wasn't checking to see whether my collection's legal (I don't even live in Florida); it just happened to be posted to a mailing list I'm on. So just hide the tapes from your girlfriend; don't worry about the police. At least in Florida. At least until the legislature meets again.

April 8, 2004

Damned if you do...

Later today, National Security Adviser Condoleezza Rice is going to testify before the 9/11 commission; while she's using the time as an opportunity to spin the Bush administration as the greatest since the universe was created, Democratic critics will take her testimony as an opportunity to point out all the things that the administration didn't do which in hindsight would have clearly stopped 9/11 if only people had listened. But while people complain about what the government didn't do, though, you can be sure they won't be mentioning this story: ACLU Files Suit Over 'No-Fly' List, describing a lawsuit just filed by the ACLU against the Transportation Security Administration. The no-fly list, of course, is the government's list of suspicious names to be screened closely before being allowed to board airplanes.

Now, I have no doubt -- based on the story, based on other anecdotes I've heard, and based on general knowledge of how government doesn't work -- that the list contains inaccuracies, is probably inefficiently maintained, and could generally be improved. But does that create an issue of constitutional rights, as the ACLU claims?

The lawsuit, filed yesterday in U.S. District Court in Seattle, seeks a court order to force the TSA to change the system so fewer innocent passengers are wrongly accused.
Does the ACLU have any helpful suggestions, though, or are they just saying, "Do a better job?" And if the current system is a violation of constitutional rights, doesn't that mean that the system must be shut down entirely unless they can do a better job?

In any case, the complaints hardly seem to rise to the level of constitutional violations. What harm? Well, there's Air Force sergeant Michelle Green, who

...said she was humiliated in front of her supervisors on a work trip when airline agents told her she could not get a boarding pass because she was on the no-fly list. "No innocent American should have to go through such a humiliating experience," she said in a statement.
And college junior Alexandra Hay:
The airline ticket agent told her she was on the no-fly list, delayed her boarding and would not tell her why she was on the list.
And Reverend John Shaw, who
...said he had trouble receiving his boarding pass and was treated with suspicion by airline personnel on vacation trips with his wife.
And of course ACLU attorney David Fathi:
At the airport in Milwaukee last summer, David C. Fathi said, he was led by at least three armed county sheriff's deputies who questioned him about his identity. On another occasion, he said, an officer threatened to detain him because his name appeared on the list. "I have pretty thick skin," said Fathi, an ACLU attorney who likened the experience to being made to feel guilty until proven innocent. "It's humiliating and it's frightening" to have the experience regularly, he said.
So we have some personal embarrassment, being "treated with suspicion," questioning, and "delayed boarding." Wow. And the ACLU wants to shut this down because it's a violation of constitutional rights? Because someone was embarrassed? Or had to jam her luggage into the overhead compartment?

By the way, Fathi "likened the experience to being made to feel guilty until proven innocent." Uh, as opposed to what? Innocent until proven guilty? Is the ACLU suggesting that the only people to be singled out at airports for increased attention -- and remember, that's all this is -- are those who have actually been convicted of terrorism?

The real point here, though, isn't that the ACLU is wrong on this issue. Rather, the point is this: if the ACLU is throwing up roadblocks to heightened scrutiny, at airports, even after 9/11, what kind of fight would they have put up before 9/11? (And just to be fair and balanced, is there any chance the airlines would have gone for this before 9/11? The last thing they needed/wanted was the added expense and hassle of such a program.) Was there any prayer that the Bush administration could have tightened security to a level adequate to have prevented 9/11? Of course not. So keep that in mind when everyone acts as if Rice was a big screwup because 9/11 happened on her watch.

May 27, 2004

Someone who belongs in Abu Ghraib

A least a small measure of justice:

A man who sent 850 million junk e-mails through accounts he opened with stolen identities was sentenced to prison Thursday after telling the judge the case against him was overblown and had no victims.

"I obviously regret this whole involvement," Howard Carmack began before being sentenced to 3-1/2 to 7 years in prison on charges including forgery, identity theft and falsifying business records.

Good deal. A drop in the bucket, of course; given that I get about 850 million junk e-mails every day, there's obviously a lot more where he came from. But for once the government did something right.

The strange, depressing thing:

Prosecutors estimated Carmack was making $60,000 to $70,000 annually before his arrest last May.
Assuming that these estimates refer to his spam-related income, I have to wonder what kind of morons there are in this country. I'm not sure who buys "get-rich-quick schemes and sexual enhancers," but more importantly, who on earth buys them based on spam? Are there really people who get one of those Vi@gra emails and think, "Gosh, I was going to go to a doctor, but ooh! Look at this colorful email! I'll just click on this unknown link and send my money to some anonymous person on the internet"?

I've posed this question before on this blog, and I know the answer: obviously there are. If there weren't such people, then spammers would have to get real jobs. But what makes it really puzzling is that, in order to bypass all the filters out there, the spam is becoming more and more abstract; it's harder and harder to figure out what the spammer is selling based on his emails. So who is clicking on the links? Are they all the same retarded elderly people who buy magazine subscriptions because they're sure it will help them win the Publisher's Clearinghouse sweepstakes? Can't be; those people don't use computers. So I give up.

[Anybody who wishes to comment on this entry: please note that if you use the name of any of the "sexual enhancers" that are commonly sold via spam, your comment may be blocked by my spam-catcher.]

October 8, 2004

Three strikes and you're out?

Quick quiz: you're a candidate running for office, but you have a few negatives. If you could pick one, which of the following would pose the biggest obstacle to your chances for election?

  1. You're the candidate of the Green Party.
  2. You're a convicted sex offender.
  3. You're legally ineligible to be on the ballot.
How about someone who hits the trifecta? His biggest problem is the last of those three, of course:
State and Mercer County election officials scrambled yesterday to respond to a potentially major ballot blunder involving the 12th District congressional race.

Green Party candidate Daryl M. Brooks, who is listed on thousands of absentee ballots that already have been mailed, and whose name appears on templates being installed on thousands of voting machines, apparently is ineligible to run for any elective office.

Brooks, 36, of Trenton said he learned on Monday's voter-registration deadline that he is ineligible to vote and that his name has been deleted from the registration rolls.

A person must be a registered voter and meet other voter registration requirements to lawfully seek elective office in New Jersey, according to Lee Moore, a spokesman for the state Attorney General's Office.

Anyone who is incarcerated, on parole or probation is deleted from registration rolls and is ineligible to run for office in New Jersey, he said.

Brooks said he was aware his voting privileges had been suspended because of his 1998 conviction for a sex crime.

He was put on the ballot because the state Attorney General's office certified that he was eligible; they made this mistake because, apparently the system relies entirely on self reporting:
Moore said it is up to the candidates to provide factual and truthful information when they submit their petitions and accompanying documents.
They do realize that they're dealing with politicians, right? (Strangely, Brooks seems to have accidentally forgotten to mention his criminal record on his website biography.)

It's a cute story, and the whole thing's sort of trivial because, after all, he's only the Green Party candidate. But there's one minor problem with the story: Brooks is not ineligible. Apparently nobody has bothered to actually read the law.

The state can impose all sorts of requirements to run for state office, but Brooks is running for Congress. And eligibility requirements for Congress are not set by the states; they're set by the United States Constitution, which states that a Representative must be 25 years old, a citizen for 7 years, and an inhabitant of the state that elects him. Can't the state add this requirement? No. In 1995, in U.S. Term Limits, Inc. v. Thornton, the Supreme Court ruled that term limits imposed by the states were unconstitutional. But the reasoning was broader:

In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.
It's bad enough that the reporter didn't know this, but how can people from the state attorney general's office not? Nevertheless, this is a mistake I see made all the time; for instance, in discussion of Alan Keyes running for Senate in Illinois (or Hillary Clinton running for Senate from New York), people repeatedly discussed whether those states' eligibility rules would permit it. All states have the same eligibility rules, folks: the Constitution. I wish reporters would try reading it.

May 17, 2005

Whine, wine, whine.

I commented on this over on Reason's blog, but I thought it was worth mentioning in its own blog entry.

One of the reasons that fights over judicial confirmations are so nasty is because so many people believe that judges make decisions based on their views rather than the law. It is commonly assumed that a judge is deciding what the law ought to be instead of what the law is -- and with the low quality of reporting we see so often from the media, it's not hard to understand why. For instance, yesterday, the Supreme Court ruled that it violated the constitution for states to discriminate against out-of-state wineries. The decision was 5-4; Clarence Thomas wrote the primary dissent. The decision turned upon the somewhat esoteric question of whether §2 of the Twenty-First Amendment trumped the so-called "Dormant Commerce Clause" in relation to the interstate sale of wine. The majority reviewed the relevant history and caselaw and found that it did not; Thomas, on the other hand, interpreted the historical record differently in opining that it did.

Unfortunately, here is how the Associated Press (which supplies content for so many print media outlets, of course) characterized this dissent:

In a dissent, Justice Clarence Thomas argued the ruling needlessly overturns long-established regulations aimed partly at protecting minors. State regulators under the 21st Amendment have clear authority to regulate alcohol as they see fit, he wrote.
Amazingly, that first sentence effectively manages to contain, in just eighteen words, three key errors in it.
  1. Thomas did not argue that the ruling "needlessly" did anything. He said absolutely nothing about "need." He argued that the ruling misinterpreted the relevant statute and the constitution.
  2. The sentence is badly drafted so that it splices together two different ideas: (A) Thomas argued that the ruling needlessly overturned regulations, and (B) the regulations were aimed at protecting children. Thomas, as already noted, did not say the former; he certainly did not say the latter.
  3. That the laws (not "regulations") are "aimed partly at protecting minors" was a claim by the states that were defendants in the cases. It was not a fact agreed to by all sides, not a holding of the court, and not the least bit credible. The laws were certainly aimed at protecting domestic wineries from competition from out-of-state; unless wine can be downloaded from a P2P filesharing network, the idea that minors are going to illegally obtain it from the internet is ludicrous. And even if it were plausible, these laws would do nothing to prevent it, since they allow(ed) minors to order wine, online, from domestic wineries.

Of course, this is simply an isolated throwaway line in a story about a case that is of interest only to winemakers, drunkswine connoisseurs, and constitutional scholars. I'm not claiming any deeper significance. But that's hardly an excuse for this sort of sloppy journalism. Even if purely unintentional, such erroneous reporting still contributes to the belief that judges are making policy -- deciding what alcohol-related policies are "needful" -- rather than interpreting law -- deciding what the constitution requires. That criticism applies to the first two errors; the third seems to me to likely reflect unconscious bias: reporting a claim by one side in the case as if it were fact.

Incidentally, while Steven Bainbridge discusses it extensively, the AP story fails to note the unusual lineup of justices in the majority and minority -- and in particular, ignores the fact that Antonin Scalia and Thomas, so often derided as puppetmaster and puppet, were on opposite sides of the case.

June 20, 2005

So sue me

I was intrigued by this entry over at Point of Law describing a rather overenthusiastic fan of the legal system:

Serial litigant Utahn Holli Lundahl has been barred from filing further appeals before the 10th Circuit, according to an article in the Salt Lake Tribune. According to the article, Lundahl has filed more than 100 lawsuits in various courts and has been barred or restricted from filing further lawsuits on her own behalf by a variety of courts. The U.S. Supreme Court, in particular, has prohibited her from filing further non-criminal papers there.

In the 10th Circuit case, Eli Lilly and another defendant claim to have spent more than $1 million in defending themselves against Lundahl's claims, which the 10th Circuit called, "fanciful, implausible and bizarre."

So I decided to do a little Googling to find out more about her.

Conclusion? I think we can safely say that Ms. Lundahl is a tad too eager to spend her time in court. How can I tell? Well, to paraphrase Jeff Foxworthy, you know someone is overly litigious when... shewins her case -- and then tries to appeal anyway.

But, once you get past the amusing anecdotes about this woman, this story has a more serious purpose: it goes to show just how misleading the opponents of tort reform are when they claim that frivolous litigation isn't a problem because courts can deal with it. Courts have a very difficult time doing so, or at least are very reluctant to do so. (Such a claim is disingenuous in another way, in that it conceals the fact that "frivolous" means something very different to the layperson and the courts.)

It may not cost every defendant $1 million to deal with a vexatious litigant, but even if it only costs a few thousand, those defense costs add up when someone files a hundred different suits.

June 24, 2005

Mark Twain was right

No man's life, liberty or property is safe while the legislature is in session.

One can hardly say that the Kelo v. New London decision was unexpected, but it's still horribly depressing. I don't have time to write as much as I'd like about the decision, so I'll just do a few random thoughts.

  1. Quoting Justice Stevens' majority opinion: "Promoting economic development is a traditional and long accepted function of government." He just left out the word "Soviet" before government. Wasn't it liberals who used to find the statement, "What's good for General Motors is good for America" to be odious? Now they've enshrined it as official Constitutional policy.
  2. We currently have a Supreme Court that believes that something which is neither interstate nor commerce is somehow governed by a power over interstate commerce, and a private company's private profit is a public use.
  3. What the heck is up with Anthony Kennedy? Just a year ago, Randy Barnett was celebrating him as a libertarian justice for his Lawrence v. Texas decision; now he gives us Raich and Kelo? Yes, he attempted to limit the holding of Kelo with his concurrence, but it was a pretty perfunctory effort, and it didn't keep him from signing on to Stevens' opinion. Is he trying to court Democratic senators in an effort to campaign for the Chief Justice job after Rehnquist retires?
  4. Speaking of Kennedy's defection, if you had told me that one of the conservative five was going to defect in both Raich and Kelo, I would have guessed O'Connor; instead, she wrote stirring, principled dissents. No six part balancing test to decide when government can seize private property for the benefit of developers, but a simple declarative statement: "Are economic development takings constitutional? I would hold that they are not."
  5. What's particularly horrible about Raich and Kelo is how broad they are. They might have been limited to their specifcs, but instead we got Raich fully endorsing Wickard, holding that there are no limits to federal power under the Commerce Clause. And we got Kelo, holding that the "private use" limitation in the Takings Clause doesn't exist. There is, for all practical purposes, nothing which isn't interstate commerce, and nothing which isn't a public use.
  6. The good news is that this decision, unlike the awful Raich one, was only 5-4 The bad news is that the Justice most likely to retire is Chief Justice Rehnquist (and Sandra Day O'Connor?), who was on the right side of both decisions, rather than any of the liberals -- though we can always hold out hope on the 85-year old Stevens.
  7. Liberals often deny that they support big government for the sake of big government. They insist they support big government only for the good (in their view) things it can accomplish. Even if that could be said to be true, it's a distinction without a difference. They support big government unconditionally, merely in the hope that sometimes it will do those good things.
Anyway, as I said, I'm depressed right now. With the exception of the confirmation of Janice Rogers Brown to the federal bench, this has not been a good year for libertarians. Social Security privatization is stalled, federalism is deader than Terri Schiavo, the drug war remains in full effect, and private property exists only at the sufferance of local government, bought and paid for by real estate developers and other big businesses.

July 8, 2005

Miller Lite

I'm torn on the whole Judith Miller saga. On the one hand, I'm a first amendment absolutist -- far more so than Miller's employer, the New York Times, which is fine with censoring people other than the Times. (Witness campaign finance "reform," which they wholeheartedly endorse. In fact, they were out there just the other day arguing for an expansion of the censorship regime imposed by McCain-Feingold.) On the other, I don't believe that someone working for a newspaper should have special rights that the rest of us don't have.

One thing I'm not torn about is the New York Times' pathetic attempt to defend its position and support Miller in a long editorial. It's filled with disingenuous comments and bad arguments. Where to begin?

Some people - including, sadly, some of our colleagues in the news media - have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, "I have no such right and I seek none."
Uh, maybe Farber did say that -- but Judith Miller was seeking such a right. In fact, not only is the Times lobbying for such a special right to be created by Congress, but they were trying to claim one already existed, even though the Supreme Court had expressly ruled otherwise.
Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources.
The Times is fond of pointing this out. But they fail to mention that very few, if any of those states, provide an absolute privilege not to testify. And the Circuit Court in this case explicitly addressed that issue, holding that even if a journalist's privilege exists, in this particular case it would not allow her to refuse to testify.
Most readers understand a reporter's need to guarantee confidentiality to a source. Before he went to jail, Mr. Farber told the court that if he gave up documents that revealed the names of the people he had promised anonymity, "I will have given notice that the nation's premier newspaper is no longer available to those men and women who would seek it out - or who would respond to it - to talk freely and without fear."

While The Times has gone to great lengths lately to make sure that the use of anonymous sources is limited, there is no way to eliminate them. The most important articles tend to be the ones that upset people in high places, and many could not be reported if those who risked their jobs or even their liberty to talk to reporters knew that they might be identified the next day. In the larger sense, revealing government wrongdoing advances the rule of law, especially at a time of increased government secrecy.

All that sounds very noble. The problem here is that it doesn't even come close to matching the facts presented in this case. Miller isn't protecting a whistleblower who exposed government wrongdoing; she's (assuming the Times' view of the Valerie Plame affair is accurate) actually protecting a government wrongdoer who tried to harm a whistleblower. We don't want such people "to talk freely and without fear."
The shroud of secrecy thrown over this case by the prosecutor and the judge, an egregious denial of due process, only makes it more urgent to take a stand.
Right. Except that this isn't a trial, and Miller isn't the defendant, so "due process" has nothing to do with the situation. Miller is a witness to a crime. Witnesses don't get to hear the government's case to decide whether they feel like testifying; it's not a "denial of due process" not to discuss the whole case with them, particularly in the context of a grand jury proceeding.

(Of course, if Miller is criminally prosecuted for contempt, she would be the defendant... but in that case, the details of the Plame affair would be irrelevant. The factual question would be whether she defied a court order, not what happened to Plame.)

There are other laughable parts to the editorial, such as where the Times compares Miller to Rosa Parks and Martin Luther King, but I don't need to pile on them. I am not saying that there can't be arguments in favor of Miller's position; I'm just saying that the Times does a very poor job of making those arguments.

August 28, 2005

All blacks are black, but some blacks are blacker than others

In 1986, the Supreme Court ruled that it was unconstitutional to exclude people from juries in criminal trials based on race. At the time, Warren Burger warned in dissent:

A further painful paradox of the Court's holding is that it is likely to interject racial matters back into the jury selection process, contrary to the general thrust of a long line of Court decisions and the notion of our country as a "melting pot." In Avery v. Georgia, 345 U.S. 559 (1953), for instance, the Court confronted a situation where the selection of the venire was done through the selection of tickets from a box; the names of whites were printed on tickets of one color and the names of blacks were printed on different color tickets. The Court had no difficulty in striking down such a scheme. Justice Frankfurter observed that
opportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored. . . .
Id. at 564 (concurring) (emphasis added).

Today we mark the return of racial differentiation as the Court accepts a positive evil for a perceived one. Prosecutors and defense attorneys alike will build records in support of their claims that peremptory challenges have been exercised in a racially discriminatory fashion by asking jurors to state their racial background and national origin for the record, despite the fact that "such questions may be offensive to some jurors, and thus are not ordinarily asked on voir dire." People v. Motton, 39 Cal.3d 596, 604, 704 P.2d [p130] 176, 180, modified, 40 Cal.3d 4b (1985) (advance sheet). [n10] This process is sure to tax even the most capable counsel and judges, since determining whether a prima facie case has been established will "require a continued monitoring and recording of the ‘group' composition of the panel present and prospective. . . ." People v. Wheeler, 22 Cal.3d 258, 294, 583 P.2d 748, 773 (1978) (Richardson, J., dissenting).

Even after a "record" on this issue has been created, disputes will inevitably arise. In one case, for instance, a conviction was reversed based on the assumption that no blacks were on the jury that convicted a defendant. See People v. Motton, supra. However, after the court's decision was announced, Carolyn Pritchett, who had served on the jury, called the press to state that the court was in error, and that she was black. 71 A.B.A.J. 22 (Nov.1985). The California court nonetheless denied a rehearing petition. [n11]

Burger's worry was prescient, but I'll bet even he never realized how far it would go. Taking the balkanization of American society to its logical extreme, the New York Times reports that Mark Watson, a convicted black rapist in New York, is appealing his conviction, claiming Batson violations. The twist? Watson not face an all-white jury, as Batson did; in fact, there were ten blacks on Watson's jury.

So what's Watson's argument? They weren't the right kind of black.

In an unusual reflection of New York City's growing diversity, lawyers for a West Indian man are arguing that he was denied justice because the Bronx jury that convicted him of rape, sodomy and burglary included only American-born blacks while all five potential jurors who were West Indian were improperly excluded by the prosecution.


The lawsuit challenges the trial court judge's conclusion that West Indians are simply black people "who happen to be from the West Indies" and his rejection of the defense argument that "the absence of this group excludes a specific point of view that cannot be articulated by other members of the jury."

They go on to argue -- with sociological "evidence" -- that West Indians and American blacks have "separate experiences and values." A careful reader will note that this really has nothing to do with what the trial was supposed to be about -- guilt or innocence -- but that's beside the point, when you're playing the racial game. And as more facts make clear, it won't end with a division between American-born and West Indian blacks:
He also said that judges had not supported the defense claim that West Indians were systematically excluded and that, in fact, two of the jurors were West Indian (although Mr. Taglieri says they were of Puerto Rican descent).
Geographers would point out that Puerto Rico is in the West Indies, but that's also clearly irrelevant. There's no stopping point. If there are blacks on the jury, then they're not West Indian blacks. If they're West Indian blacks, then they're from Puerto Rico rather than Jamaica. If they're from Jamaica, well, they must be from the wrong province of Jamaica. If they're from the right province, they could be from the wrong city. Or from the wrong side of the tracks within that city. Whatever. And let's not forget the predictable claim that Jamaican women and Jamaican men have "separate experiences and values," and that the jury needs to include some of both. (Let's not even get into sexual orientation.)

I'd call it the law of unintended consequences, but that usually applies to unforeseen side effects, and as I noted above, Warren Burger predicted it at the time.

Only two things are certain: an imaginative defense attorney can always come up with a new ethnic category, and we'll never put this particular genie back in the bottle, as Democrats will scream "Racists Turning Back The Clock On Civil Rights!!!!!!" at any judge who tries.

September 26, 2005

Didn't do the reading assignment?

I usually assume that the New York Times' bizarre theories of constitutional interpretation come from the fact that they just don't care what the constitution says; they think their own personal ideology is more important. But perhaps there's another, simpler explanation; perhaps they've just never read the constitution at all:

In Iraq, the elimination of expectations is on display in the disastrous political process. Among other things, the constitution drafted under American supervision does not provide for the rights of women and minorities and enshrines one religion as the fundamental source of law. Administration officials excuse this poor excuse for a constitution by saying it also refers to democratic values. But it makes them secondary to Islamic law and never actually defines them. Our founding fathers had higher expectations: they made the split of church and state fundamental, and spelled out what they meant by democracy and the rule of law.
They did? I suppose it's arguably true, if you ignore the constitution and look at documents such as the Federalist Papers. Seems strange to complain about omissions in the Iraqi constitution by pointing to documents extraneous to our constitution, though.

But while that's arguable, the next sentence is not:

It's true that the United States Constitution once allowed slavery, denied women the right to vote and granted property rights only to white men.
Quick quiz: can anybody point me to the section of the Constitution that "denied women the right to vote" or "granted property rights only to white men"? The latter claim is particularly odd, because while women generally didn't have the right to vote, free blacks certainly did have the right to property.

So, maybe the reason that the New York Times is regularly so horrified at the thought of the Scalia/Thomas originalism doctrine of jurisprudence is because they simply have no idea what the constitution originally said.

The Times is lying, by the way; the Iraqi constitution does "provide for the rights of women and minorities" and does not make democratic values "secondary to Islamic law." (It's true that the document does not create a wall of separation between church and state, but (a) neither does our constitution, (b) neither does that of almost any other country, and (c) it does protect religious liberty.)

October 27, 2005

The buck stops here.

So, it's official: Harriet Miers has withdrawn her nomination to the Supreme Court. I take full responsibility for this event, or at least the timing thereof. Last night, I prepared, in a hoped-for return from my blogging hiatus, a long post on the Miers nomination. I was going to clean it up and post it this morning. In order to ensure that said post would be pointless, Miers withdrew.

A few quick observations:

  • Charles Krauthammer called it: the face-saving gesture was executive privilege. Although I question how much face it could possibly save, at this point.

  • Although I am happy that Miers has withdrawn, I do feel sorry for her, to an extent. She's hardly an innocent bystander in this, to be sure -- but it's got to be difficult to say no when your close friend, the president, approaches you with such an offer. In two years, I doubt anyone outside law/news junkies will remember her, but this has to damage her career. She went from being a politically connected, successful, accomplished corporate litigator, to an unqualified hack who can't write, in the span of a month.

    If she were already a federal judge, she could return to that position, secure in life tenure. If she were an academic, she could turn back to academia. If she had been forced to withdraw by a nanny problem, she could have returned to her career and laughed it off. If she had been Borked, she could turn to the conservative book/lecture circuit for support. But what does someone in her position do now?

  • I wonder how much of a role, if any, blogs played in all this. I also wonder if there was any one factor, such as yesterday's revelation of Miers speech suggesting she may not want to ban abortion at all, or if it was just the constant drumbeat of opposition which Bush and his minions couldn't quell.

  • I feel sorry for Sandra Day O'Connor, whose conditional resignation is now likely to drag on for more months (thanks to Chief Justice Rehnquist's inconsiderate timing of his death).

  • I see that Democrats and the activist left are using this as a rhetorical weapon against the conservative movement. I doubt that will have any traction, but they couldn't resist. This is, of course, merely setting themselves up to oppose Miers' replacement. They've got the script all worked out: "Bush nominated a moderate to replace O'Connor, but those ultra-right wing ideologues couldn't tolerate that, so we know that this new nominee fill-in-the-blank must be so radical, so we oppose him. Or her. Whoever."
In any case, I have reluctantly agreed to throw my hat back into the ring. If President Bush calls, I will do my duty, despite my annoyance at being snubbed last time around. And unlike Miers, I have a paper trail. Or at least a virtual one.

More quick thoughts about the court

As I mentioned, the terms of Sandra Day O'Connor's conditional resignation have her remaining on the court until her replacement is confirmed. Since (a) social conservatives don't really want her on the court, (b) she doesn't want to be on the court, (c) a vacancy would also be bad for conservatives, (d) nobody wants a nomination fight in an election year, and (e) the president probably wants to put this embarrassment behind him as quickly as possible, I assume Bush will hurry up and announce a new nominee.

That means he needs to pick someone who has already been vetted thoroughly... and that means it has to be someone who was already on the short list.

A stealth nominee simply would not work at this point; that would be an absolute disaster. Bush would lose what little support he still has with his base if he nominated someone else whose views were murky and whose paper trail was minimal. At this point, it should be clear to even his most loyal supporters that "Trust me" just ain't gonna cut it.

Not only does he need someone whose views are known and whose background has no surprises, but he needs someone whose credentials are impeccable. That would seemingly call for someone like Judge Michael McConnell... except that McConnell is not -- to use the common Washington parlance -- a womanorminority. Everything else about him is perfect from Bush's point of view.

Attorney General Gonzales is a womanorminority, but would raise the cronyism issue again (although less appropriately), plus he's not that conservative, plus liberals blame him in part for torture.

For obvious reasons, many of the names on the short list -- in addition to McConell, you've got Luttig, Wilkinson, Alito -- or names that should be on the short list -- Kozinski, Easterbrook, Posner, Nieporent -- are not womanorminorities.

Janice Rogers Brown -- who's actually a womanANDminority -- would certainly be an interesting choice -- I'd look forward to those confirmation hearings -- but (a) I'm not sure she's socially conservative enough for social conservatives (in other words, we don't know her views on abortion), and (b) she's the candidate probably most at risk of being Borked by the left. Someone who thinks the New Deal was a socialist mistake may be my hero, but her views will be derisively caricatured by Democrats. It would definitely distract from any Fitzpatrick indictments, but I'm not sure Bush wants to fight a war on three or four fronts at once.

Other than that, there's Garza, Clement, Jones, Owen... I guess we'll have to wait and see. I just hope we wind up with someone whose conservative judicial intellectual credentials are well-established. This is Bush's last best chance for a judicial legacy. (Yes, Stevens could still retire, but that fight would be very tough, and there's no guarantee Republicans would still control Congress when it happened.)

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.)

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.

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