Friday, February 1, 2008

Human rights vs. democracy promotion

Human Rights Watch has released their 2008 world report, and it's getting some play in the Financial Times and other outlets. Here's the FT lead:

The world’s well established democracies are increasingly prepared to give credibility to authoritarian regimes, failing to probe how autocracies conduct flawed elections to bolster their international standing, a leading human rights body said on Thursday.

In its annual survey of democracy across the world, Human Rights Watch argues that the US and the European Union are too quick to support “sham democracies” in states like Pakistan, Egypt, Ethiopia and Kazakhstan, turning a blind eye to their abuse of underlying civil and political rights.

“In 2007, too many governments...acted as if simply holding a vote was enough to prove a nation ’democratic,’ and Washington, Brussels and European capitals played along,” Human Rights watch said in its latest report.

This is difficult to dispute. That said, Roth's introduction reveals an interesting tension between the human rights and democracy promotion agendas:
Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, “democracy” has no legally established definition. The concept of democracy reflects the powerful vision that the best way to select a government and guide its course is to entrust ultimate authority to those who are subject to its rule. It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the “least bad” form of government, in the words of Winston Churchill, it is an important part of the human rights ideal. Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder.

By contrast, international human rights law grants all citizens the right to “take part in the conduct of public affairs, directly or through freely chosen representatives” and to “vote” in “genuine periodic elections” with “universal and equal suffrage” and “secret ballot” so as to “guarantee[] the free expression of the will of the electors.” It also grants a range of related rights that should be seen as essential to democracy in any robust and meaningful form, including rights protecting a diverse and vigorous civil society and a free and vibrant press, rights defending the interests of minorities, and rights ensuring that government officials are subject to the rule of law. The specificity and legally binding nature of human rights are their great strength. But when autocrats manage to deflect criticism for violating these rights by pretending to be democrats, when they can enjoy the benefits of admission to the club of democracies without paying the admission fee of respect for basic rights, the global defense of human rights is put in jeopardy. Why bother complying with so intrusive a set of rules as international human rights law when, with a bit of maneuvering, any tyrant can pass himself off as a “democrat”?

On the one hand, Roth is correct so far as the state of international law is concerned. On the other hand, it's far from clear that the clarity of human rights law has had appreciable effects on, you know, respect for human rights.

Indeed, whether human rights treaties have had any effect on state behavior is a disputed point in both international relations and international law scholarship. Compared to the various waves (and smaller counterwaves) of democratization that have occurred in recent decades, however, the advancement of human rights looks like its lagging pretty badly. So I'm not sure that the codification of human rights law is the great advancement that Roth proclaims it to be.

posted by Dan at 11:48 AM | Comments (3) | Trackbacks (0)

Friday, November 23, 2007

An extra special reason for New Yorkers to give thanks

Al Baker reports on some stunning homicide figures in the New York Times:

New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963.

But within the city’s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million.

If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or — to a far lesser degree — with romantic partners, spouses, parents and others.

The low number of killings by strangers belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or die in robberies that turn fatal.

In the eyes of some criminologists, the police will be hard pressed to drive the killing rate much lower, since most killings occur now within the four walls of an apartment or the confines of close relationships.

That last fact is too bad -- I was looking forward to the day when the combined number of homicides on Law & Order, Law & Order: Special Victims Unit, and Law & Order: Criminal Intent exceeded the actual number of homicides in the five boroughs.

Hmmm.... come to think of it, most of these shows are set in Manhattan. I wonder if we hae reached the point when the annual number of homicides in that borough are less than the number of homicides that would be portrayed on television. Not just the L&O franchise, but also CSI: NY and the half-dozen other crime shows I'n sure are set in the city.

Readers, go and check this out!

posted by Dan at 02:24 PM | Comments (4) | Trackbacks (0)

Tuesday, September 18, 2007

Hi, I'm Daniel Drezner, the defense attorney for God

Over at Passport, Mike Boyer alerts me to a unique piece of litigation:

Nebraska State Senator Ernie Chambers has had enough of plagues, famines, droughts, hurricanes, and genocides. Chambers considers these incidents to be terrorists acts. To stop them, he's suing the person responsible for them—God.

Chambers, who before becoming a state legislator was a barber, filed a lawsuit last Friday in Nebraska's Douglas County District Court, naming himself as the plaintiff and God as the defendant, a permanent injunction "ordering defendant to cease certain harmful activities and the making of terroristic threats."

You can read the whole court filing by clicking here.

Before the Voloh Conspiracy and Opinio Juris get a hold of this, I have to sday that my favorite bit is this: "Defendant has made and continues to make terroristic threats of grave harm to innumerable persons." Whoa there -- Chambers has concrete information about these new threats?

After an allegation like that, if I was God's lawyer I'd advise him to smite Chambers until his tongue fell out and his flesh was covered with boils countersue for libel.

posted by Dan at 03:29 PM | Comments (6) | Trackbacks (0)

Tuesday, September 4, 2007

Madlibs and the Bush administration's signature style

The New York Times Magazine offers a sneak preview of next week's cover story -- Jeffrey Rosen's article about Jack Goldsmith's experiences at the Justice Department's Office of Legal Counsel (Full disclosure: Jack is a good friend and I've blogged about him before). Goldsmith is the author of The Terror Presidency: Law and Judgment Inside the Bush Administration , due out in the next week.

This paragraph from Rosen's story should sound familiar to those who have observed Bush's foreign policy style:

In Goldsmith’s view, the Bush administration went about answering [national security law] questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”
Let's have some Madlibs fun and insert some blanks into this paragraph:
In Goldsmith’s view, the Bush administration went about answering __noun__ questions in the wrong way. Instead of reaching out to __noun__ and __noun__ for support, which would have strengthened its __adjective__ hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of __noun__ . As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave __noun__ stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand __noun__ have diminished it.”
Discussion question: would it be safe to say that this applies to almost every Bush administration policy initiative?

posted by Dan at 03:50 PM | Comments (4) | Trackbacks (0)

Wednesday, June 6, 2007

What the f$%& is Kevin Martin thinking?

Via Jonathan Adler, I see that while I was away FCC chairman Kevin Martin did not react well to the Second Court of Appeals decision to strike down the FCC's policy governing "fleeting expletives". The court characterized the policy -- designed to make the network liable when someone unexpectedly swears during a live broadcast.-- as "arbitrary and capricious."

Martin's response -- on the FCC's web site, no less -- contains the following:

I completely disagree with the Court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that “shit” and “fuck” are fine to say on broadcast television during the hours when children are most likely to be in the audience.

The court even says the Commission is “divorced from reality.” It is the New York court, not the Commission, that is divorced from reality in concluding that the word “fuck” does not invoke a sexual connotation.

A few questions:
1) Did Martin write this himself or did people with actual training in press relations whip this statement up?

2) By the FCC's interpretation, is Martin is obnoxiously hitting on erveryone who reads his statement?

3) Am I obviously encouraging rape and bestiality when I say, "F#$% Kevin Martin and the horse he rode in on?" or could I have a different intent in mind?

4) As Adler asks, "Given the Second Circuit's ruling, could a network air Martin's remarks without fear of federal sanction?"

posted by Dan at 02:46 PM | Comments (3) | Trackbacks (0)

Friday, May 4, 2007

Forward progress on intellectual property

"Striking the proper balance on intellectual property rights" is one of those ideas I put in my conceptual hope chest along with "unilateral elimination of all agricultural subsidies" or "fiscal conservativism" or "NBC renewing Friday Night Lights for another season" as policies I'd really like to see but don't expect to happen.

So, it's a pleasant surprise to read the Economist's tech.view column explain that the Supreme Court actually took a positive step on patent rights:

In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions.

The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driver’s height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents.

KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Court’s new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place.

The justices’ opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved.

This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbents’ old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition.

The Supreme Court’s ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by America’s over-eager courts.

posted by Dan at 12:56 PM | Comments (5) | Trackbacks (0)

Monday, March 12, 2007

Open U.S. Attorneys thread

I've been remiss in not posting about the brewing brouhaha about the role that Republican members of Congress, as well as the White House, played in the removal of several U.S. Attorneys in December 2006. Comment away.

If this New York Times story is accurate, then this story has the perfect storm of tidbits to fuel numerous news cycles: Harriet Miers, Karl Rove, White House overreaching, and the kind of investgation that promises regular tidbits of new information.

UPDATE: Ah, the Washington Post's Dan Eggen and John Solomon feed the storm:

The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today.

The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman.

Gonzales approved the idea of firing a smaller group of U.S. attorneys shortly after taking office in February 2005. The aide in charge of the dismissals -- his chief of staff, D. Kyle Sampson -- resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress.

Lawmakers requested the documents as part of an investigation into whether the firings were politically motivated. While it is unclear whether the documents, which were reviewed yesterday by The Washington Post, will answer Congress's questions, they show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged.

posted by Dan at 11:51 PM | Comments (15) | Trackbacks (0)

Tuesday, February 20, 2007

Your international law links for today

Over at the Council on Foreign Relations web site, Dan Ikenson and Robert E. Lighthizer are debating whether the WTO dispute settlement system is too robust for its own good.

Meanwhile, at the International Economic Law and Policy blog, my colleague Joel Trachtman discusses why Indonesia has decided to sell Baxter HealthCare exclusive access to its avian flu virus samples.

posted by Dan at 02:06 PM | Comments (0) | Trackbacks (0)

Thursday, January 11, 2007

Opinio Juris scores a (perfectly legal) coup

The international law blog Opinio Juris announces what I believe to be a first -- an executive branch official openly participating in a blog:

Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here.

The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser’s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.

UPDATE: Another first for bloggers.

posted by Dan at 02:45 PM | Comments (1) | Trackbacks (1)

Thursday, June 29, 2006

Open Hamdan thread

Comment away on the Hamdan decision and its implications.

No, wait, before you do that, click over to see what Randy Barnett, Orin Kerr, and Jack Balkin think about the decision (Pajamas Media has a big roundup post as well).

Balkin first:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way....

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching.

Both Barnett and Kerr observe how Hamdan highlights the Bush administration's strategic miscalculations on this issue. Barnett first:
It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war....

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

Finally, Orin Kerr:
The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts — and in particular, the Supreme Court — to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?
Talk amongst yourselves.... and play nice.

UPDATE: Stephen Bainbridge ponders next steps for Congress.

posted by Dan at 10:47 PM | Comments (11) | Trackbacks (0)

Wednesday, June 28, 2006

Your scary quote of the day
"It is often not at all the situation that the president doesn't intend to enact the bill."
Michelle Boardman, a deputy assistant attorney general, testifying before a Senate pane on presidential signing statementsl, as quoted in the New York Times.

Getting rid of the double negative, and this translates into, "the president often intends to enact the bill." Not always, but often. Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it. UPDATE: Obviously, the president can veto a bill. Signing a bill and only partially implementing it, however, is another kettle of fish entirely.

To be fair, let's see how Boardman expands on her comments:

Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power."

Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.

The problem with this line of reasoning is that the current president is operating under a theory of executive branch power that is way, way out of the mainstream.

I'm not opposed to signing statements in principle -- indeed, they probably serve as useful guidance for executive branch agencies. However, quotes like the one above give me hives.

ANOTHER UPDATE: Thanks to Appalled Moderate for adding more context to Broadman's comments.

YET ANOTHER UPDATE: Orin Kerr puts his finger on the larger problem:

It seems to me that the Bush Administration’s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration’s broad view of Article II powers. Most criticism of the Administration’s approach has focused on (1). I’m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).

posted by Dan at 08:10 AM | Comments (34) | Trackbacks (0)

Wednesday, June 14, 2006

In honor of Flag Day....

The Senate is going to vote today on a flag-burning amendment, an act that even the conservative base knows is meaningless. Seriously, is this really a problem in this country? Utah Senator Bob Bennett points out the obvious: "The only time there's any significant amount of flag burning is when the flag amendment is introduced and people go out and burn flags in opposition to the amendment."

If you must think about this kind of nonsense, go read this Julian Sanchez post about the proposed constitutional amendment to ban flag-burning. And then try to think of an even sillier amendment to the Constitution and post it in the comments.

UPDATE: Thanks to the reader who linked to this John Scalzi post from last year on this very topic.

posted by Dan at 04:19 PM | Comments (12) | Trackbacks (0)

Monday, February 20, 2006

See if this sounds familiar....

Last month I blogged about the Newsweek story on the rebellion of politically-appointed Justice Department lawyers against the Dick Cheney/David Addington approach of how to run the war on terror and the executive branch.

I got a powerful whiff of déjà vu upon seeing that The New Yorker's Jane Mayer has a story about Alberto J. Mora, the general counsel of the United States Navy until January of this year. Why? Well, three reasons.

First, the rebellion story sounds awfully familar:

One document, which is marked “secret” but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects.

The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that Mora’s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.

In important ways, Mora’s memo is at odds with the official White House narrative....

Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. “To my mind, there’s no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”

Second, the description of Mora sounds similar to the conservative DOJ lawyers who nevertheless resisted Bush's proposed policy changes:
Mora—whose status in the Pentagon was equivalent to that of a four-star general—is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed.... Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration’s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. “It’s my Administration, too,” he said.
Third, the degree of duplicity going on just depresses the living hell out of me. Consider this section:
Without Mora’s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in [Pentagon general counsel William] Haynes’s letter to [Senator Patrick] Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. “It seems that there was a two-track program here,” said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. “Otherwise, why would they share the final working-group report with [head of Southern Comabd General James] Hill and [Guantánamo commander General Geoffrey] Miller but not with the lawyers who were its ostensible authors?”....

The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in the signed report, he explained, were approved only for Guantánamo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. “If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guantánamo,” the official said.

In fact, techniques that had been approved for use at Guantánamo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guantánamo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib.

A lawyer involved in the working group said that the Pentagon’s contention that it couldn’t risk sharing the report with its authors “doesn’t make any sense.” He explained, “We’d seen everything already.” The real reason for their exclusion, he speculated, was to avoid dissent. “It would have put them in a bind,” he said. “And it would have created a paper trail.”

UPDATE: Here's a link to Mora's memo (hat tip: Andrew Sullivan).

ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind. But I have to think he's engaging in wishful thinking in this response to a interview:

I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules.
Link via Greg Djerejian.

posted by Dan at 01:04 PM | Comments (25) | Trackbacks (0)

Monday, January 30, 2006

Hey, I actually do know Jack

Fifteen months ago, Dana Milbank had a Washington Post story that touched on the tension that existed between David Addington, Vice President Cheney's longtime lawyer and new chief of staff, and other national security lawyers in the administration:

Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president....

On the job, colleagues describe Addington as hard-edged and a bureaucratic infighter who frequently clashes with others, particularly the National Security Council's top lawyer, John Bellinger. Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel, led Goldsmith to resign after eight months in the job; Addington had sought to persuade OLC to take a more permissive line on torture.

Still, even foes admire Addington's work ethic and frugality; he takes Metro from his home in Alexandria instead of using his White House parking space.

I dredge this up because Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas have written a much fuller account (and some regretfully overripe language) of this tension within the administration for Newsweek (link via Orin Kerr):
James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right—and to doing the right thing—whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way."

One of those people—a former assistant attorney general named Jack Goldsmith—was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror.

These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage.

Read the whole thing. I have nothing to add but this -- I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack.

The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream.

Oh, and one other thing: Henry Farrell is right. Those who criticized Goldsmith's appointment to Harvard Law School on ethical grounds (click here for one example) have a hell of a lot of crow to consume.

posted by Dan at 02:35 PM | Comments (4) | Trackbacks (0)

Friday, January 20, 2006

Man, the DOJ has some strange lawyers

Mike Hughlett reports in the Chicago Tribune that the Justice Department would like to access Google's records:

Google Inc. is refusing to obey a Justice Department demand that it release information about what people seek when they use the popular search engine, setting up a possible battle with broad implications for Internet privacy rights.

The Justice Department asked a federal court this week to force Google to turn over a trove of information on how people use the Internet. A subpoena, first sought over the summer, seeks activity on Google's search engines for a single week, a request that Google says could lead to identifying millions of people and what they were looking at.

The government, which says its request will not result in identifying individual computer users, wants to use the information to resurrect an online pornography law shot down last year by the U.S. Supreme Court. It wants to search Google queries to see how often users inadvertently run across sexual material.

The Internet's rise has raised issues of whether users would be vulnerable to electronic eavesdropping of all kinds, but Google's stand represents the first big public face-off between the world's leading search engine and the government....

Yahoo, which has the second most popular Internet search engine, acknowledged Thursday it has complied with the government on a "limited basis."

Other Internet search engines also appear to have complied with the request, said Chris Winfield, president of 10e20 LLC, a New York-based search engine marketing firm. "It looks like Google against everyone," he said.

Oddly, Google has issued no official comment. [UPDATE: check out this San Jose Mercury News story, however.]

I'm not competent to comment on the legality of the request, but the thing that struck me is that the DOJ is being unbelievably lazy.

The DOJ wants to show that online searches lead to inadvertent stumbles into porn. It is true that the best way to show this would be to retrieve a sample of searches. However, almost as good would be for the DOJ to commission some social scientist to do the research for them. It would not be hard for a researcher to run an experiment to gather this kind of data, and the results would be just as useful to the Department of Justice.

There's something else that disturbs me about this request. If Yahoo! and other search engines have already complied, then the DOJ doesn't really need Google's data. All of the search algorithms are pretty much identical -- which means that Justice already has a sufficiently large sample. Even if the differences are more important than I think, the companies cooperating with the DOJ already represent a larger combined market share than Google, so it's not clear that their cooperation is really necessary for the DOJ to make its evidentiary argument.

So why continue to press Google?

I see one of two possibilities:

1) The data they have doesn't support the administration's supposition, and they're hoping Google will bail them out;

2) They don't care about the data for this case as much as they do about establishing a legal precedent and/or intimidating Google into compliance.

Readers are encouraged to try and diving what the DOJ is thinking.

UPDATE: One other quick thought -- although I doubt they acted for these reasons, this is brilliant PR for Google. Their spectacular growth and ever-increasing range of activities had threatened to turn cultural perceptions against the firm. By resisting the Bush administration -- in contrast to Yahoo's capitulation -- Google will look very, very good to all the syberlibertarians oiut there.

posted by Dan at 10:01 AM | Comments (14) | Trackbacks (0)

Wednesday, January 18, 2006

Assisted suicide and the war on terrorism

Orin Kerr has a good post up explaining why the Supreme Court's 6-3 ruling in Gonzales v. Oregon favor of Oregon's assisted suicide law could be a harbinger for how the Court will rule on NSA surveillance or other executive-legislative disputes.

UPDATE: Stephen Bainbridge has a good post up on what the ruling reveals about Scalia's jurisprudence.

posted by Dan at 12:03 PM | Comments (3) | Trackbacks (0)

Monday, January 16, 2006

Major league baseball has some bad, bad lawyers

The Associated Press reports that Major League Baseball is about to get into a legal war with fantasy baseball:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company claims baseball statistics become historical facts as soon as the game is over, so it shouldn't have to pay for the right to use them....

CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license.

Before the shift, CBC had been paying the players' association 9 percent of gross royalties. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics....

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to "commercially exploit the identities and statistical profiles" of big league players....

Ben Clark, a St. Louis attorney who specializes in intellectual property rights, said a win by Major League Baseball could "send a shudder through the entire fantasy industry," he said.

On the other hand, he said, it stands to lose the rights to any royalties for use of statistics.

"You just wonder whether it's a fight Major League Baseball wants to have," he said.

I find it hard to believe that MLB could win this in court -- and the PR backlash from going after fantasy baseball operators isn't going to win them any plaudits either.

Over at Baseball Musings, David Pinto has some useful links, including this nugget of information that appears to completely undercut MLB's case:

IP lawyer Kent Goss is quoted as citing an interesting 2001 case in which MLB themselves claimed that player names and statistics were (as far as I can interpret) both in the public domain and free for others to profit from, and the California Court of Appeal upheld MLB's right to use the names and stats of historical players. "A group of former players sued MLB for printing their names and stats in game programs, claiming their rights to publicity were violated," Goss said. "But the court held that they were historical facts, part of baseball history, and MLB had a right to use them. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)."
In other words, five years ago MLB was making the opposite argument of what it's saying now.

This leads me to a question I can't answer -- what on earth prompted baseball to adopt such a hard-line position on an issue it knows it probably can't win in the courts?

posted by Dan at 09:47 AM | Comments (11) | Trackbacks (0)

Monday, January 9, 2006

Senate Judiciary Committee contest!!!

Ah, I see that Samuel Altio's confirmation hearings begin before the Senate Judiciary Committee today.

When the hearings were held for John Roberts last year, there was a lot of silliness uttered by a lot of people -- mostly members of the Senate Judiciary Committee.

So, the hard-working staff here at announces its first contest -- finding the single dumbest thing a Senator says during the hearings.

For example, my winner for the Roberts confirmation would have been Senator Tom Coburn of Oklahoma, who averred, "[I am using] my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under." Diane Feinstein gave Coburn a run for his money, but this was stupidity in its purest form.

So, listen closely and post your nominations in the comments below. Be sure to provide a link to the source of the quotation for our legal staff here. [What does the winner receive?--ed. Hmmm.... suggest your own reward as well, and I'll see what the staff can whip up.]

To kick things off, consider this example from Patrick Leahy's opening statement:

Last October, the President succumbed to partisan pressure from the extreme right of his party by withdrawing his nomination of Harriet Miers. By withdrawing her nomination and substituting this one, the President has allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote. That eye-opening experience for the country demonstrated what a vocal faction of the Republican Party really wants: They do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.
Right. I'm pretty sure that:
a) Opposition to Harriet Miers was across the board;

b) The most significant pressure came from.... members of the Senate Judiciary Committee.

c) Patrick Leahy apparently believes that all NARAL really wants is for justices to "vote their conscience."

This should be an easy one to top -- get to it, readers!!!

UPDATE: Click here to find out who won!

posted by Dan at 01:03 PM | Comments (51) | Trackbacks (0)

Thursday, December 29, 2005

What's wrong with this sentence?

Vincent J. Schodolski has a story in today's Chicago Tribune about the unothrodox sentences judges sometimes impose on defendants. Here's how it opens:

There is a song in Gilbert and Sullivan's light opera "The Mikado" in which the title character reveals that one of his goals is "to let the punishment fit the crime." It appears that a number of judges around the country share that objective.

In various jurisdictions and for various crimes, judges have ordered individuals to spend a night in the woods, act as a school crossing guard, stand along busy streets with signs around their necks proclaiming their misdeed and even watch a film about violent neo-Nazis, "American History X."

Some of the judges involved said that they imposed these sentences to make criminals better understand the harm they caused or could have caused.

This month, an Arkansas woman who passed a stopped school bus and struck and killed a child was sentenced to spend one day a year in jail for 10 consecutive years, with the date to coincide with the date on which the child died.

Am I the only one who believes that ten days in jail stretched out over ten years is an extraordinarily lenient sentence for vehicular manslaughter?

At first I thought this was an error in the Trib story -- but it's not:

Tiffany Nix, 25, was ordered to spend every September 28 through 2015 in jail for the 2004 death of 9-year-old William "Isaac" Brian.

Nix pleaded guilty Tuesday to manslaughter and passing a stopped school bus.

The judge ordered Nix to pay Isaac's family $5,694.62 for his funeral expenses. She will also be on probation for 10 years and must perform 400 hours of community service.

The boy's father, Kelly Brian, said after the hearing that he and his wife, Shari, were satisfied with the sentence.

Prosecutors had said Nix had opiates and amphetamines in her system at the time of the accident. She had initially been charged with negligent homicide, but prosecutors upgraded the charge after receiving results from laboratory tests.

In a written statement included in a police report, Nix said she saw the school bus but did not see its stop sign. She said she did not realize the bus was stopped until she saw the boy running in front of it.

Isaac's death prompted legislators to toughen penalties for passing stopped school buses.

As an aside, those tougher penalties don't seem to be working.

A question to the prosecutors in the audience -- given the circumstances, is this kind of jail time par for the course for a manslaughter conviction?

[Do you have any better ideas?--ed. Well, my wife, upon reading the story, had the instinctive reaction: "Put her in solitary for a few years, but on the date the child died release her into the general inmate population and tell everyone what she did." But you should see how responds if the kitchen is really messy.]

posted by Dan at 09:24 AM | Comments (23) | Trackbacks (0)

Friday, December 23, 2005

"The judicial equivalent of a bitch slap"

That's Jacob Sullum's assessment of what 4th Circuit Court of Appeals judge Michael Luttig delivered to the Bush administration in denying their request to transfer Jose Padilla from military to civilian custody. Orin Kerr concurs.

Luttig was on Bush's short-list for Supreme Court nominees, but as Sullum points out:

The rebuke is richly deserved. Even a court that was prepared to recognize the detention authority asserted by Bush is not prepared to let him submit his policies to judicial review only when he feels like it.
Indeed, just about every branch or bureaucracy of government is bitch-slapping George W. Bush this month on national security issues.

There's the judicial branch. Beyond Luttig, another federal judge resigned from the Foreign Intelligence Surveillance Court in reaction to the NSA domestic surveillance program, forcing the administration to brief the rest of the FISA judges before they faced a full-blown judicial revolt.

There's the legislative branch. As Jim VandeHei and Charles Babington point out in today's Washington Post:

This week's uprising against a four-year extension of the USA Patriot Act was the latest example of a new willingness by lawmakers in both parties to challenge Bush and his notions of expansive executive power.

Since this spring, Congress has forced Bush to scrap plans for a broad restructuring of Social Security, accept tighter restrictions on the treatment of detainees and rewrite his immigration plan. Lawmakers have rebuffed Bush's call to make permanent his first-term tax cuts and helped force the president to speak more candidly about setbacks in Iraq.

"What you have seen is a Congress, which has been AWOL through intimidation or lack of unity, get off the sidelines and jump in with both feet," especially on the national security front, said Sen. Lindsey O. Graham (R-S.C.).

What is most striking is that the pushback is coming not just from Democrats and moderate Republicans, who often disagree with Bush, but also from mainstream conservatives.

The year's events, say some legislators and scholars, reflect more than just a change in the president's legislative scorecard. They suggest Bush may have reached the outer limits of a long-term project to reshape the powers of the presidency.

Finally, there's the permanent bureaucracy. As David Ignatius pointed out earlier this week in the Washington Post the torture question has revealed a clash between the Bush administration and national security professionals (link via Kevin Drum):
The national security structure that the Bush administration created after Sept. 11, 2001, began to crumble this month because of a bipartisan revolt on Capitol Hill. Newly emboldened legislators forced the administration to accept new rules for the interrogation of prisoners, delayed renewal of the Patriot Act and demanded an investigation of warrantless wiretapping by the National Security Agency.

President Bush has bristled at these challenges to his authority over what has amounted to an undeclared national state of emergency. But the intelligence professionals who have daily responsibility for waging the war against terrorism don't seem particularly surprised or unhappy to see the emergency structure in trouble. They want clear rules and public support that will allow them to do their jobs effectively over the long haul, without getting second-guessed or jerked around by politicians. Basically, they don't want to be left holding the bag -- which this nation has too often done with its professional military and intelligence officers....

One little-noted factor in this re-balancing is what I would call "the officers' revolt" -- and by that I mean both military generals in uniform and intelligence officers at the CIA, the NSA and other agencies. There has been growing uneasiness among these national security professionals at some of what they have been asked to do, and at the seeming unconcern among civilian leaders at the Pentagon and the CIA for the consequences of administration decisions.

The quiet revolt of the generals at the Pentagon is a big reason U.S. policy in Iraq has been changing, far more than Bush's stay-the-course speeches might suggest. Defense Secretary Donald Rumsfeld is deeply unpopular with senior military officers. They complain privately about a management style that has stretched the military to the breaking point in Iraq. For months they have been working out details of troop reductions next year in Iraq -- not just because such action will keep the Army and Marine Corps from cracking but because they think a smaller footprint will be more effective in stabilizing the country.

A similar revolt is evident at the CIA. Professional intelligence officers are furious at the politicized leadership brought to the agency by ex-congressman Porter Goss and his retinue of former congressional staffers. Their mismanagement has peeled away a generation of senior management in the CIA's Directorate of Operations who have resigned, transferred or signaled their intention to quit when their current tours are up. Many of those who remain are trying to keep their heads down until the current wave of political jockeying and reorganization is over -- which is the last thing you would want at an effective intelligence agency.

The CIA, like the military, wants clear and sustainable rules of engagement. Agency employees don't want their careers ruined by future congressional or legal investigations of actions they thought were authorized. Unhappiness within the CIA about fuzzy rules on interrogation, and the risk of getting clobbered after the fact for doing your job, was a secret driver for Sen. John McCain's push for a new law banning cruel interrogation techniques.

The great thing about the American system of government is that whenever one branch exceeds its traditional scope of authority, that branch is eventually brought to heel by the other parts of government.

This is one of the iron laws of politics that George W. Bush is now facing.

posted by Dan at 03:49 PM | Comments (8) | Trackbacks (0)

Monday, October 31, 2005

Open Alito thread

Feel free to comment here on President Bush's nomination of Sam Alito to the Supreme Court.

[Well, what's your take?--ed. I don't know anything at all about Alito. That said, my legal bellwether is the Volokh Conspiracy's Orin Kerr, and he seems pretty pleased with the choice. After reading this David Bernstein post, however, one wonders how the KKK will react.]

UPDATE: Julian Sanchez has a post up at Hit & Run that deconstructs some of the ThinkProgress/Center for American Progress/Daily Kos criticisms of Alito.

posted by Dan at 11:13 AM | Comments (21) | Trackbacks (0)

Wednesday, October 26, 2005

Harriet Miers evokes the wrong emotions

I'm actually beginning to feel pity for Supreme Court nominee Harriet Miers --- and this is not a good thing. I'm feeling the same way about Miers that I feel when I go to a job talk and recognize within five minutes that there is no chance in hell that this person is going to be hired.

It now seems well nigh impossible to find anyone of substance willing to say anything really positive about her nomination. Finding negative things, on the other hand, is pretty damn easy.

Orin Kerr looks at some Miers speeches, about the role of the courts in addressing abortion or religion. Reading the highlighted passages, I concur with Kerr: "The writing is awkward enough that I'm not entirely sure what she is saying."

This pales in comparison to Virginia Postrel's take:

For whatever reason, the president has picked a woman who not only has no constitutional or judicial experience but even in her business practice has demonstrated no interest in the law as anything other than a source of billable hours. At 60 years old, she appears never to have had a substantive conversation about law or policy with any friend. She comes from a closed and cronyish legal and business culture and appears to have gotten ahead through a combination of networking, nose-to-the-grindstone diligence, and willingness to do her law firm's management, rather than legal, work.

Her selection is an insult to women, to evangelical Christians, and to corporate lawyers. Is this really the best these groups have to offer to U.S. Supreme Court?

However, the end to this New York Times story by David Kirkpatrick is what really got me to feeling sorry for Miers:

Asked if the debate had become "one-sided," with too few defending Ms. Miers, Senator Sessions, the Alabama Republican, struggled for words, then pushed a button for a nearby elevator in the Capitol building and told an aide, "Get me out of here."

As Ann Althouse points out, "Once people have decided you're dumb, pretty much everything you say sounds dumb." That is now the problem for Miers -- and, by extension, the Bush administration.

posted by Dan at 11:56 AM | Comments (6) | Trackbacks (0)

Wednesday, October 19, 2005

So explain this to me about Harriet Miers....

The positive trait that appeared most often in early press accounts about Harriet Miers was her meticulous attention to every detail. Say what you will about Miers, all the i's were dotted and all the t's were crossed on her watch.

One could quibble about whether this is the most useful trait in a Supreme Court Justice, but it is certainly a positive trait in its own right -- one that many Americans wish they had in greater stock. And, at this stage of the game, I suspect the Bush administration will take whatever positive memes about Miers it can get.

Which makes this Knight-Ridder story by James Kuhnhenn all the more disturbing:

Senate Republicans and Democrats said Wednesday that Supreme Court nominee Harriet Miers' written answers to Senate questions were incomplete and inadequate and demanded that she and the White House provide more details, particularly about her work as White House counsel.

Judiciary Committee Chairman Arlen Specter, R-Pa., and the committee's top Democrat, Patrick Leahy of Vermont, took the unusual step of asking Miers by letter to amplify her responses. Specter described Miers' nomination process as "chaotic."

"We do not have much paperwork. We do not have much of a record," Specter said.

"I don't know of anybody who would tell you in that committee that they were satisfied with the responses," Leahy said....

White House spokeswoman Dana Perino said Miers intended to respond soon.

"From the first day when she was nominated, Ms. Miers told Sen. Specter that she had years of files to go through and that she would work to complete the questionnaire as quickly as possible, but that it was likely she would have to send follow-ups to provide additional information," Perino said.

To be fair to Miers, a lot of the incomplete answers are likely due to Bush's reluctance to do anything that event hints at a waiver of executive privilege.

Still, there's this very odd end of the story:

Specter, whose handling of Roberts' confirmation was praised by both Democrats and Republicans, voiced bewilderment at how Miers' nomination has unfolded, and he alluded to his 100-minute encounter with Miers on Monday, where she ended up disputing his account of their meeting to the press.

Specter initially said Miers had expressed the view that the Constitution contains a right to privacy, a key element in the Roe v. Wade case that established a woman's right to an abortion. Miers, however, said Specter misunderstood her, and Specter said he accepted her statement.

But on Wednesday, he said: "I've never walked out of a room and had a disagreement as to what was said."

UPDATE: Patrick Belton points out that Miers has given an embarrassing answer to an embarrassing question.

In NRO, Byron York notes that her supporters have admitted that, "The meetings with the senators are going terribly. On a scale of one to 100, they are in negative territory."

Orin Kerr thinks the tipping point on Miers has been reached.

posted by Dan at 08:54 PM | Comments (11) | Trackbacks (0)

Thursday, October 13, 2005

Most embarrassing Miers moment yet

From today's Washington Post story by Peter Baker and Charles Babington on the Miers nomination:

The Senate Judiciary Committee sent Miers a questionnaire yesterday that included several items the panel did not ask of [Chief Justice John] Roberts. "Please describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions," the questionnaire asks. (emphasis added)

Is it just me, or would this be like asking a nominee for Secretary of State, "Please describe in detail any foreign experience or travel you experienced"? UPDATE: Michael Froomkin supplies a more exact analogy in the comments.

posted by Dan at 01:58 PM | Comments (17) | Trackbacks (0)

Thursday, October 6, 2005

More Miers links

Both Virginia Postrel and Ann Althouse have plenty of posts up about the Miers confirmation, so go check them out.

In this one, Althouse asks:

I have yet to see a single piece of writing by Harriet Miers dealing with an issue of constitutional law or even anything purporting to demonstrate the analytical, interpretive skills required to serve on the Supreme Court. The nomination was announced on Monday. It's Thursday. Can we have something in writing that shows her mind in action, that inspires confidence that this is a person whose judgment we should all trust for the next two decades?

This Jim Lindgren post probably won't assuage her.

In this post, Postrel partially corrects Lindgren's assessment -- but then goes onto observe, "The prose is indeed clunky, however, and the article is banal in that well-known corporate way, where you make an argument--her main point is that the courts need more money--without any sharp points."

I'll give the last word to Postrel, who rebuts the snobbery argument:

The anti-snobbery defense of Miers is an understandable but wrong-headed one--doubly so when it comes from graduates of large, research-oriented public universities that attract great students with low tuitions. My father, a math and physics major at Davidson (a far more academically oriented school then and now than SMU), always had that same southern chip on his shoulder about the Ivy League. Then I went to Princeton, and he discovered that they really do teach you more there. Most important, of course, is that nobody would care where Miers had gone to school if she had a track record, whether as a scholar, a policy maker, or a litigator, on constitutional law. (emphasis added)

posted by Dan at 06:41 PM | Comments (19) | Trackbacks (0)

Monday, October 3, 2005

Open Miers thread

Comment away on the president's latest Supreme Court nomination -- current White House Counsel Harriet Miers.

My substantive take is pretty much in line with the Volokh Conspiracy's David Bernstein -- particularly this point:

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.

Jack Balkin concurs: "Although we don't know much about Miers, it's likely that, like John Roberts, she was picked with a view toward protecting executive power." That's a thought that makes a small-government conservative just giddy with anticipation, doesn't it?

As for the politics of it, Michelle Malkin chronicles discontent on the right side of the blogosphere -- including her own reaction:

It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste.

Eerily enough, this parallels Josh Marshall's reaction:

The key that this nomination should and, I suspect, will turn on is that the she fits the Bush administration mold -- she's a loyalist through and through. The lack of any other clear qualifications for the job becomes clear in that context.

Tom Goldstein at SCOTUSblog informs me that, "Moderate Republicans have no substantial incentive to support Miers."

As an anonymous e-mailer put it to me:

[At the confirmation hearings], there'll be contrasts drawn with Mr. Resume who just took his seat -- "We've just established that the lack of judicial experience or scholarly writings can be compensated for with a stellar legal record. And you, Ms. Miers, have done... what?"

Well, George W. Bush had this to say about her:

When I came to office as the governor of Texas, the Lottery Commission needed a leader of unquestioned integrity. I chose Harriet because I knew she would earn the confidence of the people of Texas. The Dallas Morning News said that Harriet insisted on a system that was fair and honest. She delivered results.

Whoa, hold the phone -- she was a fair and honest Lottery Commissioner? Put this woman on the bench right away!!!

[Isn't that a little harsh?--ed. Look, maybe Miers is supremely qualified -- I'm sure the hearings will reveal something about her competence at jurisprudence. However, a glance at her cv -- and those praising her accomplishments -- suggests that beyond not having ever served on a bench, she appears to have held no other job of parallel legal distinction. Would Miers ever be an answer to any legal question that starts, "Name the top nine lawyers who _____" -- besides serving George W. Bush for an extended period of time? In a post-Katrina environment, that dog won't hunt. You stole that from Jacob Levy--ed. Well, I only borrow from the best, and besides, Jacob also said he wanted this meme to travel as far and wide as possible.]]

Given the politics of the Supreme Court right now, there was no one -- no one -- who was going to skate through this nomination. This choice, however, seems designed to tick off every variety of conservative known to man.

No wonder Glenn Reynolds thinks Bush has pulled a perfect storm -- and not in a good way.

UPDATE: Cass Sunstein is blogging about Miers on the new University of Chicago Law School's Faculty blog:

On technocratic grounds, the following recent nominees were obviously outstanding: Roberts, Breyer, Ginsburg, Scalia, and Bork. (Douglas Ginsburg belongs in that category as well.) No one could doubt the ability and relevant experience of these nominees. Their records clearly demonstrated that they were first-rate. The same could be said of several other recent nominees as well....

What about Harriet Miers? She might be superb, but her record and experience certainly do not compare to those of recent nominees.

Jacob Levy ain't thrilled with Miers either.

Meanwhile Senator Frank Lautenberg (D, NJ) tells the Associated Press that he finds Miers, "courteous and professional."

FINAL UPDATE: Oh, man, does Larry Solum find the right quote from Federalist 76.

posted by Dan at 09:50 AM | Comments (29) | Trackbacks (0)

Friday, July 15, 2005

In honor of Justice Rehnquist....

Anyone attempting to earn a Ph.D. is familiar with Matt Groening's Life is Hell strip about graduate school. Patricularly this part:


In honor of Chief Justice William Rehnquist's contrarian announcement that he's staying on for a while, I thought it worth reprinting this fact from Charles Lane's profile of Rehnquist in the July/August 2005 issue of Stanford magazine:

Applying credits earned at Kenyon and diligently working through the summers, Rehnquist picked up his bachelor’s and master’s degrees in political science in 1948. Then he left for Harvard, where [his undergraduate mentor Charles] Fairman had studied, with the idea of gaining a PhD in government. But something about Cambridge did not agree with him. Perhaps it was the cold weather; perhaps it was the liberal politics of what detractors called “the Kremlin on the Charles.” “I remember him saying he did not like Harvard, and he did not like political science,” says Craig Bradley, a professor of law at Indiana University who clerked for Rehnquist in the court’s 1975-76 term. “He didn’t think much of the professoriate.”

Bradley says Rehnquist saw academics generally as “liberal blatherers.” By the fall of 1949, he was back at Stanford, enrolled at law school.

Readers should feel free to speculate on how history would have changed had the Harvard Government department not been as hostile an environment to Rehnquist.

posted by Dan at 01:32 PM | Trackbacks (0)

Tuesday, April 5, 2005

San Francisco regulates bloggers -- or not

Eugene Volokh has the run-down on a possible San Francisco ordinance designed to regulate election coverage, and may or may not regulate blogs. Eugene writes, "I've held off on blogging about this because I wanted to figure out just what the ordinance means, and it's been surprisingly hard." After reading his post, I'm equally flummoxed -- but I fear this will not be the last of blog regulation.

posted by Dan at 10:23 PM | Comments (1) | Trackbacks (0)

Monday, March 21, 2005

Open Schiavo thread

Feel free to comment here on the federal government's decision to intervene in the Terry Schiavo case. I was paying zero attention to this until I read the AP story this morning. My first response to it is identical to Orin Kerr's:

Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?

Howard Bashman thinks the law as passed and signed is constitutional but makes no comment on what the district court judge would rule. Bashman also provides a welter of links to media reaction.

Andrew Sullivan raises a valid point about what this means for modern-day conservatism:

So it is now the federal government's role to micro-manage baseball and to prevent a single Florida woman who is trapped in a living hell from dying with dignity. We're getting to the point when conservatism has become a political philosophy that believes that government - at the most distant level - has the right to intervene in almost anything to achieve the right solution. Today's conservatism is becoming yesterday's liberalism.

Comment away!!! As Mickey Kaus says, "Our society is going to have to have this out at some point--why not now?"

UPDATE: Dahlia Lithwick goes medieval on the federal intervention in Slate:

You can put aside the doctrine of federalism for Terri Schiavo, and the principles of separation of powers, and comity, and of deference to finality and the rule of law. But you'd want to be certain, on the day you do so, that what you're sacrificing them for some concrete legal value that matters a whole lot more. Subordinating a centuries-old culture of law to an amorphous, legally meaningless "culture of life," is not a decision to be taken over a weekend.

posted by Dan at 11:36 AM | Comments (71) | Trackbacks (1)

Monday, January 10, 2005

That silly Alan Dershowitz

Look, the Harvard Law School has taken its fair share of lumps in the past year -- so critiquing Alan Dershowitz's critique of John Grisham's latest potboiler in the New York Times Book Review seems a bit like piling on.

However, I can't let this paragraph slide:

I have long been a Grisham reader. I have to be. So many of my students come to law school primed by Grisham novels -- and the movies based on them -- as their introduction to the practice of law. In many ways, it is a better introduction than high school civics and college political science courses that preach an incorruptible legal system -- especially its judiciary -- that always remains above politics. Grisham's lawyers and judges may be a bit over the top, but they are often closer to the real thing than the hagiographies of our ''sainted'' judges that pass for judicial biography.

I'm going to go out on a limb and suggest that students who decide to matriculate at Harvard's law school might -- just might -- have formed their opinions about the law from a greater range of experience than reading Grisham's oeuvre. At a minimum, I'm sure they've read Scott Turow's vastly superior legal thrillers.

Second, it's clearly been a long, long time since Dershowitz checked out the political science literature on the judiciary. I'm hardly an expert on the poli sci literature on the courts, but even I am dimly aware that the trend in the past few decades has been to study judges as rational actors intent on pursuing political agendas -- not exactly above politics (click here for some examples of this literature) Comparative political scientists do tend to assume that American judges are less corrupt than many of their foreign counterparts -- because that appears to be true. However, political scientists have long abandoned the concept that judges do not think or act in a political or strategic manner. And I'm pretty sure that this is reflected in undergraduate courses.

posted by Dan at 10:30 AM | Comments (4) | Trackbacks (0)

Wednesday, June 30, 2004

The Supreme Court's international influences

"Should foreign or international legal decisions ever be considered relevant to United States Supreme Court rulings?" That's the question over at Legal Affairs magazine.

Vicki Jackson is enthusiastic about the proposition.

Richard Posner is not so enthusiastic about it.

Go read both and them post your own thoughts.

posted by Dan at 10:40 AM | Comments (16) | Trackbacks (0)

Monday, June 28, 2004

Open Gitmo thread

Feel free to comment on the implications of today's Supreme Court ruling on the Guantanamo detainees here. Before commenting, it might behoove you to check out:

1) The actual cases -- Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla.
2) The media coverage -- The Financial Times, Washington Post, New York Times, and Slate.
3) The blog coverage -- particularly Larry Solum, Marty Lederman (SCOTUSblog), Jack Balkin, Pejman Yousefzadeh, and all of Moday's posts from the Volokh Conspiracy.

I haven't processed much of this yet, but so far Stuart Benjamin's point about formalism vs. pragmatism and Eugene Volokh's point about liberal and conservative iconoclasts on the court seem the most interesting to me.

posted by Dan at 09:22 PM | Comments (8) | Trackbacks (1)