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.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.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.
Friday, November 23, 2007
An extra special reason for New Yorkers to give thanks
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.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!
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.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
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?
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.A few questions:
1) Did Martin write this himself or did people with actual training in press relations whip this statement up?
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.
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.
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.
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.UPDATE: Another first for bloggers.
Thursday, June 29, 2006
Open Hamdan thread
Comment away on the Hamdan decision and its implications.
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....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.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.
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."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).
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.
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.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?”....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 Foreignpolicy.com 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.
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....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."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.
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.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;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.
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.
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.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.
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?
Monday, January 9, 2006
Senate Judiciary Committee contest!!!
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 danieldrezner.com 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;This should be an easy one to top -- get to it, readers!!!
UPDATE: Click here to find out who won!
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.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.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.]
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.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.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.
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.
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:
However, the end to this New York Times story by David Kirkpatrick is what really got me to feeling sorry for Miers:
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.
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:
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:
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."
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:
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.
Thursday, October 6, 2005
More Miers links
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:
Monday, October 3, 2005
Open Miers thread
My substantive take is pretty much in line with the Volokh Conspiracy's David Bernstein -- particularly this point:
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:
Eerily enough, this parallels Josh Marshall's reaction:
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:
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.
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.
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:
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.
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.
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:
Andrew Sullivan raises a valid point about what this means for modern-day conservatism:
Comment away!!! As Mickey Kaus says, "Our society is going to have to have this out at some point--why not now?"
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'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.
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.
Go read both and them post your own thoughts.
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:
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.