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October 31, 2005
"Open Source" on the Alito Nomination
You can listen live here.
Posted by Eric at 6:52 PM | Comments (2)
White House Talking Points on Alito
Responses to Likely Attacks: Judge Samuel A. Alito
1) Attack: Alito upheld a Pennsylvania anti-abortion law that the Supreme Court overturned in Planned Parenthood v. Casey.
Response:a) In Planned Parenthood v. Casey, Judge Alito agreed with the Third Circuit majority that Pennsylvania’s informed consent, parental consent, and reporting and public disclosure requirements were constitutional. The Supreme Court upheld these holdings.
b) Judge Alito also concluded that the spousal notification requirement was constitutional, based on the “undue burden” standard articulated by Justice Sandra Day O’Connor in Supreme Court cases (Webster v. Reproductive Health Services and Hodgson v. Minnesota) that had addressed the abortion issue following Roe v. Wade.
c) Judge Alito did not make up the spousal notification provision. The voters of Pennsylvania enacted it, and it contained four exceptions to the spousal notification requirement: (1) if the woman believed the husband was not the father, (2) if the husband could not be found after diligent effort, (3) the pregnancy was the result of a spousal sexual assault that was reported to authorities, and (4) the woman believed the notification was likely to result in the infliction of bodily injury on her. Judge Alito was merely called upon in his role as a judge to determine if the voters of Pennsylvania had violated the Constitution by enacting such a statute.
d) Judge Alito noted in his opinion in Casey that the Planned Parenthood plaintiffs challenging the Pennsylvania statute had made a facial challenge to the statute: that is, in order to strike it down, one would have to find that there was not a single circumstance in which the statute could be applied consistent with the Constitution. That he noted this in 1991 shows his attention to detail, precedent, and applicable legal standards: this term – 14 years later – the Supreme Court is finally attempting to clarify its own confusing precedents on the applicable standard of review question that Judge Alito identified.
e) Judge Alito has shown that he respects and follows Supreme Court precedent and does not automatically rule for or against abortion laws. Indeed, in Planned Parenthood v. Farmer, Judge Alito voted to strike down New Jersey’s ban on partial birth abortion. The Supreme Court previously had invalidated a similar Nebraska law, and Judge Alito emphasized the “responsibility” of judges “to follow and apply controlling Supreme Court precedent.”
2) Attack: Alito also subscribes to a states’ rights approach that undercuts the ability of federally elected representatives to enact laws that protect civil rights, an approach that leaves women vulnerable.
Response: Judge Alito’s federalism rulings faithfully applied settled Supreme Court precedents.a) In United States v. Rybar, Judge Alito argued in dissent that Congress could not regulate wholly intrastate possession of machineguns. He simply applied the Supreme Court precedent United States v. Lopez, which struck down a nearly identical ban on possessing guns near schools. Judge Alito said explicitly that states can ban possession of machine guns and that Congress could reenact the law if it found that intrastate possession of machine guns substantially affected interstate commerce.
b) In Chittister v. Dep’t of Community and Econ. Dev., Judge Alito ruled that parts of the 1993 Family and Medical Leave Act violated states’ Eleventh Amendment sovereign immunity. That ruling was unanimous, joined by two Democratic appointees. Scores of other Democratic appointees have agreed that parts of the law were unconstitutional. States and the Federal Government remained free to ensure adequate family leave, and Judge Alito noted that every state in the Third Circuit had already enacted generous family-leave policies.
3) Attack: Alito has a disturbing record in cases involving discrimination based on race, disability and gender. Under his judicial philosophy, victims would face near-impossible burdens to prove their discrimination.
Response: Judge Alito is even-handed and fair to employees and employers.a) In Robinson v. City of Pittsburgh, Judge Alito reversed a trial judge’s decision to throw out the plaintiff police officer’s sexual-harassment claim. Judge Alito held explicitly that a plaintiff need not suffer monetary loss to show that she suffered an adverse employment action.
b) In Konstantopoulos v. Westvaco Corp., Judge Alito agreed that the plaintiff had not proved sexual harassment. Her only evidence of discrimination was that her co-workers had “squinted their eyes and shook their fists” at her, and that a colleague had once thrown her lunch away.
c) In Sheridan v. E.I. Dupont de Nemours & Co., Judge Alito argued that courts should not be required to rule automatically for employees whenever they show that an employer’s explanation is pretextual, but stressed that in practice employees should almost always win these cases.
4) Attack: Alito is a notorious foe of church-state separation.
Response: Judge Alito’s opinions stress the importance of neutrality, neither specially burdening religion nor granting it special benefits. He has resisted government efforts to impose discriminatory burdens, especially on religious minorities.a) He struck down a police policy that required Sunni Muslim police officers to shave their beards, because they believed they had a religious duty to grow beards.
b) He struck down a school policy that allowed nonreligious student groups to distribute informational materials but forbade religious student groups to do the same.
c) He struck down a state permit requirement that made no exception for a Native American who wished to keep a wild bear, which his faith regards as sacred.
d) He has also ruled that a city could erect a holiday display that included not only a crèche and a menorah, but also a Christmas tree, Santa Clause, Frosty the Snowman, a sled, and Kwanzaa symbols. In doing so, Judge Alito simply applied the governing Supreme Court precedent, Lynch v. Donnelly.
Posted by Eric at 11:55 AM | Comments (8)
He Changed His Name. It Used To Be Shmuel Alitokoff.
Posted by Eric at 9:13 AM | Comments (6)
The Alito Nomination and Gender Equality
This nomination does not reflect at all well on American progress towards the eradication of gender discrimination.
Posted by Eric at 8:31 AM | Comments (19)
It's Alito
UPDATE: It's interesting to note that when Sam became U.S. Attorney in New Jersey, and needed to appoint his First Assistant U.S. Attorney (his top deputy), he looked outside the office and brought on board a highly experienced prosecutor from the Southern District of New York by the name of Michael Chertoff.
Posted by Eric at 7:13 AM | Comments (5)
October 28, 2005
Sam Alito, As I Knew Him.
Sam Alito was the U.S. Attorney who hired me into the Appeals Division of the U.S. Attorney's Office for the District of New Jersey back in 1989. He was still there as U.S. Attorney when I started at the office in early 1990, but left a few months later to join the Third Circuit.
I had nowhere near the exposure to Alito that I had to his replacement, Michael Chertoff, but I had enough time to form an impression.
He is cerebral. He is very, very smart. In small-ish interpersonal settings he comes off as a bit shy and a touch awkward. (I say that this is so only in small-ish settings because I once saw him deliver a speech, at his farewell dinner, actually, and in that setting, speaking to a big crowd, he was remarkably at ease and exceedingly funny.) He seems younger than his years; there is a boyishness to him. Because his nature is reserved, I found him tough to read for politics. I knew, of course, that his conservative pedigree was impressive, but it was not something he wore on his sleeve.
I'll share my one amusing Sam Alito story. When he left the U.S. Attorney's Office for the Third Circuit, those of us in the Appeals Division decided to give him a going-away present. You know those office ink-pad stamps that say "CANCELLED" or "DRAFT" or "RECEIVED" or whatever? We had one made that said "AFFIRMED," to make Sam's job in criminal appeals that much easier. A little prosecutor's in-joke, you know?
A few months later, an unmarked envelope arrived for us in the Appeals Division. Inside was a slip opinion of the first criminal appeal Judge Alito had heard, with the word "AFFIRMED" stamped about 20 times all over the front page.
We never did figure out who it was from.
UPDATE: I should note that the opinion we received in the mail with the "AFFIRMED" stamp all over it was not in a case litigated by our office. As I recall, Sam Alito recused himself from all cases that had been pending during his tenure as U.S. Attorney in New Jersey, and even from those that followed his tenure as U.S. Attorney for a period of many months, if not more.
Posted by Eric at 7:33 PM | Comments (21)
October 27, 2005
It's So Crazy, It Just Might Work.
Posted by Eric at 7:32 PM | Comments (6)
Miers' Withdrawal: It's All About Executive Privilege. (Yeah, Right.)
The spin: she's withdrawing to protect executive privilege.
What a load of crap.
Posted by Eric at 9:07 AM | Comments (12)
October 26, 2005
Du pain à la merde, s'il vous plaît.
A guy with an Arab-sounding name is caught sprinkling dried human feces on pastries in a Dallas grocery store, and Michelle Malkin doesn't sound the Terror Alarm?
Posted by Eric at 12:58 PM | Comments (4)
That Was Now, This Is Then
Tomorrow may bring indictments of Karl Rove and Scooter Libby on charges that can charitably be described as trivial. Tonight, one of our readers urged us to link to President Bush's great speech to the Joint Armed Forces Officers' Wives' group rather than being distracted by the minutiae of the day. Good suggestion.
John Hinderaker, December 17, 1998:
"Like many others, we have been frustrated by the apparent inability of much of the American public to take the Clinton scandals seriously. "It's not about sex," we have patiently repeated to our benighted friends. "It's about perjury. It's about obstruction of justice. The sex is only incidental. At most it was the motive for the crimes. You wouldn't think murder was unimportant just because the motive for the murder was sex, would you?" So goes our argument."
Posted by Eric at 10:31 AM | Comments (54)
October 25, 2005
'E's just resting.
Posted by Eric at 12:39 PM | Comments (1)
"Qwerty" will get you 60 days at hard labor.
Needless to say, they're freaking out over at Turkcescrabble, the Yahoo group for Turkish Scrabble enthusiasts.
Posted by Eric at 9:55 AM | Comments (2)
Rosa Parks, 1913-2005
Posted by Eric at 7:02 AM | Comments (1)
October 24, 2005
Lincoln Mullen Bears False Witness!
Posted by Eric at 2:32 PM | Comments (18)
Should Auld Acquaintance Be Blogged?
Posted by Eric at 9:09 AM
October 23, 2005
Strawberry Days
Posted by Eric at 3:06 PM | Comments (1)
Just Ask Tom Petty: The Waiting Is The Hardest Part.
The waiting at this point is undoubtedly a game of chicken. It's impossible from the outside to know precisely what he's waiting for, but he's surely waiting to see if someone will flip. Maybe he's negotiating the terms of a cooperating plea agreement.
And I would imagine that taking his website live a week before the expiration of the grand jury, at a moment when there was no need for it, was a not-so-subtle way of ratcheting up the pressure.
Posted by Eric at 8:21 AM | Comments (5)
October 22, 2005
Interesting Thoughts on Nazi Victimhood in Europe
In a comment replying to one of mine, she wrote this:
The larger question is how Poland will come to terms with its past. It's not to say that Germany has handled it perfectly - and it has the most to answer for - but at least there is some public effort to do so. For these other countries their own sense of victimhood interferes with their own introspection and penance. And even in Germany there's still that sense of victimhood as well. All over Europe not enough people in enough of these places use the word "we" when they talk about the past. Instead they use the word "they," as if it had been a bunch of aliens who had set down in Germany in 1930, did their ugly business entirely on their own, and then left the innocent citizens behind to pick up the mess. It's an analogy that rarely holds as often as people might like it to.Well said.
Posted by Eric at 9:36 AM | Comments (8)
October 21, 2005
Title Chortle
(Found via Progressive Law Blogs.)
Posted by Eric at 10:21 AM
We Now Pause for this Commercial Message
Oh, and did I mention "Tom Delay mug shot?"
(If recent sitemeter patterns are any indication, this should drive my traffic up considerably today.)
(We now return to regular IsThatLegal programming.)
Posted by Eric at 9:07 AM | Comments (1)
Well, For One, He Played Rugby--A Sport In Which Sweaty Men Grab Each Other.
When does the swiftboating of Fitzgerald begin? When are we going to hear how he was in a three way with George Soros and Michael Moore on Jane Fonda's yacht while fundraising for Hilary Clinton and John Kerry by getting gay-married in Massachusetts to Ward Churchill and Howard Dean? Five thousand times an hour for the next three months?An excellent question.
What do you think the line of attack on Fitzgerald will be? Leave a comment.
Posted by Eric at 8:06 AM | Comments (3)
October 20, 2005
Extra Points for "Osculate."
Believe me ... in law school, Froomkin wasn't this much of a ham.
Posted by Eric at 7:41 PM
The Best Daily Show Moment Ever.
Jon Stewart: [Here on the Daily Show] we do add insult to injury; it's true.
Bill O'Reilly: At least he's an honest man.
Jon Stewart: But you add injury.
You can watch it here.
Posted by Eric at 9:46 AM | Comments (3)
Is There A "Culture" of, Say, Vegetarianism?
This is the nub of her argument:
If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigotsI don't have the faintest idea what she's talking about. American law protects all manner of liberties--some of them under the due process clause, and lots of them under other more directly worded texts--and that protection doesn't destroy other practices and institutions. American law forbids mistreatment of atheists, but this does not mean that atheism is the "value" of American law, or that legal protection of atheism "imposes" that value on religious people, or turns religious people into "bigots." American law guarantees people the freedom to engage in nudism, but that doesn't mean that nudism is a "value" of American law, or that the protection of nudism has "imposed" anything on people who wear clothes, or that the protection of nudism has turned those who think people ought to wear clothes into bigots.
What a ridiculous and frightened argument.
Posted by Eric at 8:37 AM | Comments (9)
October 19, 2005
The Best Thing About Life Tenure Is You Don't Have To Pay Annual Dues.
Justice-to-be Harriet Miers has twice been suspended from the bar (once in DC and once in Texas) for failing to pay her dues on time.
Here's her letter to Sen. Schumer admitting the second suspension. (pdf file)
UPDATE: We're talking about serious lateness here. In DC, a lawyer is suspended ninety days after the due date. In Texas, where Miers was also suspended for late payment, the rules now say that a lawyer gets a written warning when dues are 30 days late, and gets a suspension if that warning goes unheeded for 30 more days. (I don't know if this was the rule at the time of Miers's suspension.)
Most lawyers go their entire careers without a single suspension for late payment. (I have, thus far, and I'm a member of the bar in two different jurisdictions.) Two suspensions? Very unusual. And hardly "meticulous."
Posted by Eric at 11:24 PM | Comments (6)
Tom DeLay's Mug Shot!
Posted by Eric at 8:34 PM | Comments (8)
"Not a Hurricane Expert."
Mike Chertoff, testifying before the congressional Katrina committee today: "I am not a hurricane expert."
A couple of interesting items from the story: On Saturday, August 27, Katrina was a Category 3 storm, and forecasters were predicting it would go to Category 4 and make landfall in Louisiana or Mississippi. Chertoff stayed home that day. On Tuesday, with 80% of New Orleans under water and without power or utlities, Chertoff made a previously scheduled trip to Atlanta.
Would the tragedy have been averted if Chertoff had spent the 27th at the office, or cancelled his travel on August 30? No, of course not. But Chertoff's actions, seen together with the President's guitar-strumming and Mike Brown's "doin' a great job," certainly contribute to a general picture of not-fully-engaged national leadership.
Posted by Eric at 7:58 PM | Comments (2)
Cooperating Witnesses and their Incentives to Lie
Talkleft follows that information with the following boilerplate from every criminal defense lawyer's closing argument in every conspiracy case:
"Treat this kind of testimony with extreme skepticism as to its veracity. It is testimony that has been purchased with promises of leniency. Freedom is a commodity far more precious than money. The incentives to lie and exaggerate are enormous.How many times have I heard this line of argument? (Lots.) And how many times have juries rejected it? (Lots. In fact, just about the same number of times as I've heard it.)"The prosecutor seeks the truth. But, whose truth? If the cooperator didn't provide "the truth" that supported the prosecution's theory in investigating or prosecuting others, there would be no deals or leniency given.
"This may turn out to be no different than your average drug conspiracy case. The question is, when the little guys roll on the big guys, or even just roll sideways or down, can you trust what they are telling the prosecutors, or are they just singing for their supper?"
Full disclosure: I was a federal prosecutor, not a federal defender, so I suppose I approach this line of argument with a degree of skepticism that matches the degree of belief placed in it by most defense lawyers. But it has never struck me as a generically persuasive argument. It is really a defense lawyer's only way of dealing with the enormous strategic problem that arises when a colleague of the defendant's--especially one without a criminal record--decides to trade what he knows for a reduced sentence, or for immunity (if he can get it).
And if the "he's-lying-for-a-deal" argument is generically rather weak, it strikes me as especially weak in the scenario we're talking about here. How plausible is it that top ideologically committed aides like John Hannah and David Wurmser would turn on George W. Bush and Dick Cheney and Scooter Libby and Karl Rove to save themselves a few months in the slammer? If their (presumed) testimony were lies, testifying would be an act of betrayal that they'd pay for every day of the rest of their lives.
So maybe top-level cooperators in a case like this would falsely implicate the most powerful people in the country to save themselves a little jail time. But I doubt it.
Posted by Eric at 4:29 PM | Comments (2)
Location, Location, Location
By signaling that he had no plans to issue the grand jury's findings in such detail, Mr. Fitzgerald appeared to narrow his options either to indictments or closing his investigation with no public disclosure of his findings, a choice that would set off a political firestorm.Well, as a logical matter those are the two options. But as a practical matter, the second option seems awfully unlikely. If the grand jury will issue no report, and if there are to be no indictments, then there is quite literally nothing for Fitzgerald to say, except to announce a declination of prosecution. Why would the U.S. Attorney from the Northern District of Illinois bother to schedule such an announcement in Washington, DC?
Posted by Eric at 10:07 AM | Comments (1)
Announcing "Progressive Law Blogs"
Your life has just gotten easier.
Check out (no--bookmark!) Progressive Law Blogs, a new aggregator site gathering posts from Balkinization, Talkleft, Armando of Daily Kos, Michael Froomkin's discourse.net, Doug Berman's Sentencing Law and Policy, Nathan Newman, Votelaw, and yours truly. Other blogs will be joining in down the road, I'm sure.
Posted by Eric at 8:50 AM
Faith in Science
Posted by Eric at 6:51 AM | Comments (6)
October 18, 2005
The Terrorism Wish
Posted by Eric at 7:24 PM | Comments (1)
Why Not Indict the Vice President? (Emphasis on the "vice".)
Rather than ask, 'Will Cheney resign if indicted," far better to ask, "Will Cheney resign if named as an unindicted co-conspirator."Richard Nixon was named as an unindicted co-conspirator thirty years ago, but I have always understood that the decision not to indict him stemmed from strong constitutional doubt that a sitting President could be indicted.
I have heard nobody maintain that the indictment of a sitting vice-president would present constitutional difficulties.
So ... if Fitzgerald's got the goods on the veep, why would he refrain from indicting?
Posted by Eric at 5:13 PM | Comments (9)
October 17, 2005
Party Line.
Posted by Eric at 8:21 AM
October 16, 2005
Einstein? Nein. Einstein darfst du nicht sein. Es tut mir leid.
"Du Bist Deutschland" ("You Are Germany") is the name of a huge advertising campaign that, for the next several months, will try to improve German self-esteem. Among the strategies are ads that feature the faces of famous Germans, along with encouragement to be and think and create like them. "You are Beethoven," Germans are told. "You are Albrecht Dürer."
One of the "Du bist Deutschand" faces is Albert Einstein's. Yes -- German Jew Albert Einstein.
Sorry, Germany. You don't get to use Albert Einstein for a German feel-good ad. You kicked Einstein out in the thirties. If he'd stuck around, he'd have been murdered.
Or, if you want Einstein, Germany, I tell you what. I'll make you a deal: you can be Einstein if you want, but then you also have to be Himmler or Goering or one of the others who wanted him dead.
But just Einstein? Nope. Don't think so. You lost him a long, long time ago. He's not yours anymore, especially not to deploy in the service of German self-esteem.
UPDATE: A thousand thanks to David Marshall, who pointed me to this quotation from Einstein, delivered at the Sorbonne before WWII:
If my theory of relativity is proven correct, Germany will claim me as a German and France will declare that I am a citizen of the world. Should my theory prove untrue, France will say that I am a German and Germany will declare that I am a Jew.
Posted by Eric at 10:07 PM | Comments (22)
Judee Maccabird, 1998-2005
Our seven-and-a-half-year-old cockatiel died this morning. She was a birthday present I gave to my wife seven years ago. It was during Chanukah, so we called her Judee Maccabird. That's not her on the left, but she looked a lot like that.
When we left the house yesterday morning, she was fine--eating, chirping, playing with her toys.
When we came home in the late afternoon, something was horribly wrong: she was alive, but bleeding terribly. I rushed her to the hospital. She had lain an egg--something she'd never done before--but it had sort of gotten stuck and had done her a lot of injury as she expelled it. Another egg remained inside her. The eggs were not fertile, as she had no male partner.
The vet removed the egg, cleaned her up, gave her fluids, and kept her overnight for observation. She was in good spirits, and reasonably good shape, when I left
But birds tend to conceal the extent of their illness. This morning she died from the blood loss.
We buried her in the backyard with her egg.
Goodbye, Judee Maccabird. You were a sweet, wonderful companion, a happy gift from nature in our midst. We miss you very much.
Posted by Eric at 4:41 PM | Comments (8)
Time for a Retraction, Ken Masugi
Now it's Ken Masugi's turn. Masugi, whose parents were interned on account of their ancestry at the Tule Lake and Minidoka Relocation Centers during WWII, reviewed Malkin's book manuscript before publication, and since then has done what he can to undermine the general understanding that the primary explanations for the government's decision to jail his parents (and 120,000 others) from 1942 to 1945 were racism and wartime hysteria.
Some time ago, Masugi published an unfavorable review of my book "Free to Die for their Country," which tells the story of several hundred Japanese American internees who resisted the military draft in 1944 in order to try to create a test case of their internment.
Yesterday, Masugi wrote this on his weblog:
"Muller regards the Japanese who resisted the draft as the true heroes of the relocation centers, not those who entered the army to fight fascists."
This is false.
First, the internees who resisted the draft were Americans, not Japanese. It is surprising--and quite revealing--that Mr. Masugi, an American of Japanese ancestry, would refer to American citizens as "Japanese," just as white Americans did 60 years ago.
Second, here are the things I wrote about the Nisei soldiers of WWII in "Free to Die for their Country":
p. 179: "After the victories in Europe and the Pacific, the highly decorated Nisei troops of the 100th Infantry Battalion and the 442nd Regimental Combat Team came home to a well-deserved hero's welcome from the Japanese American community. Their matchless and well-publicized bravery in combat had been the public relations bonanza for the Nisei cause that the JACL, Assistant Secretary of War John McCloy, and WRA Director Dillon Myer had hoped it would be."Mr. Masugi, I demand that you publicly retract your false statement that I have maintained that the Nisei soldiers of WWII were not true heroes.p. 197: "Who could deny that those who fought, and those who died or wounded, were both courageous and patriotic?"
p. 4: "Many [internees] served bravely in Europe with the 442nd Regimental Combat Team, the racially segregated battalion for Japanese Americans that the Army created for them. Some lost their limbs, others their lives."
p. 60: "With the fiasco of registration behind it, the military turned to the task of outfitting and training the newly formed Nisei combat team. Settling in at Fort Shelby in Mississippi in May of 1943, the Nisei volunteers trained with gusto and quickly began impressing the caucasian officers who had been assigned to lead them. A month into their training they were joined by an outfit of volunteers from Hawaii, the 100th Infantry Battalion. The 100th, a segregated Nisei unit formed in mid-1942 from the ranks of the Hawaiian Territorial Guard and the National Guard of Hawaii, had been in training for a year and was nearly ready for combat. In August of 1943, the 110th Infantry Battalion was sent to North Africa for combat and saw its first action late in September in Italy. By all accounts, the men of the 110th fought admirably in those early months of combat, accomplishing the objectives assigned them and suffering many casualties.
"Against this developing backdrop of impressive service by the Nisei volunteers, Assistant Secretary of War McCloy took up the question of the draft with others."
I suggest that you make clear that the men about whom you have written were Americans, not Japanese.
And I also suggest, Mr. Masugi, that if you came away from reading my book with the impression that I had depicted the Nisei soldiers as something other than true heroes, then perhaps you didn't really read my book. Your "review" of it notwithstanding.
Posted by Eric at 12:19 PM | Comments (18)
October 14, 2005
In (Hypothetical) Defense of Kristallnacht
"If Herschel Grynszpan, a presumptively loyal, apolitical German Jew, would assassinate a German government official in Paris, what might we expect from other Jews in Germany? Anti-semitism doubtless exaggerated passions, and "political considerations" played their role in the drastic state-sponsored pogrom that followed on November 10-11, 1938. Yet a reasonable argument could be made, taking seriously the appeals of the German Communist Party and of the Soviet Union, that Jews in Germany (of whom many were Communists), who suffered discriminatory treatment, might not all be loyal, when subject to the test that Herschel Grynszpan took and failed. What written exam, what interview, could possibly screen those who posed a threat to the German state from those who did not? Should this have been left to community self-policing? These were the questions facing those responsible for German internal security in November of 1938. Kristallnacht—which my father and grandparents endured—might well have ended sooner and might have been carried out differently, but it remains defensible as a reasonable response to the vom Rath assassination."Do you buy it?
Now consider this passage from Ken Masugi of the Claremont Institute, referring to the assistance a Japanese American couple in Hawaii offered to a downed Japanese pilot in December 1941:
"If a presumptively loyal, apolitical Japanese-American would come to aid of an invader, what might we expect from other Japanese on the mainland? Racism doubtless exaggerated wartime passions, and “political considerations” … played their role in the drastic relocation policy. Yet a reasonable argument could be made, taking seriously imperial Japan’s own nationalistic appeals…, that ethnic Japanese on the west coast, who suffered discriminatory treatment, might not all be loyal, when subject to the test the young couple [in Hawaii] took and failed. What written exam, what interview, could possibly screen the loyal from the disloyal? Should this have been left to community self-policing? These were the questions facing those responsible for American national security at the beginning of WW II. The relocation—which my parents endured—might well have ended sooner and might have been carried out differently, but it remains defensible as a reasonable post-Pearl Harbor response."I do not know Ken Masugi personally, and I know nothing about his family history, so I cannot even begin to guess at what leads the son of Japanese American internees to align himself with those who incarcerated his family for years on account of their race. It is an extraordinary—perhaps unique—position. Clarence Thomas may espouse some unlikely views, but I've never heard him defend Jim Crow. ("There were, after all, criminals and illiterates among the freed slaves and their progeny. What written exam, what interview, could possibly screen them from the rest of the country's African-Americans? These were the questions facing those responsible for elections in the South in the early twentieth century. Jim Crow might have ended sooner and might have been carried out differently, but it remains defensible as a reasonable response to black lawlessness and illiteracy.")
Masugi's position is also Michelle Malkin's—he reviewed the manuscript of her book "In Defense of Internment" before it was published—and it is growing tiresome. It is one thing to note that several Japanese Americans acted disloyally before or just after Pearl Harbor. It is another thing entirely to argue that this explained, let alone justified, the policies that the government put in place from February 1942 through war's end: the wholesale eviction and multi-year detention of 70,000 U.S. citizens on account of nothing more than their ancestry.
The fact that a fear- and hate-motivated program of widespread oppression may have had a germ of fact somewhere in its foundation does not make a fear- and hate-motivated program of widespread oppression "defensible" or "reasonable."
(A word about Godwin's Law: Not germane here. As I've shown, Masugi's analytical approach to defending the Japanese American internment is identical to the analytical approach of my hypothetical defense of Kristallnacht.)
UPDATE: In the comments, Ken Masugi responds as follows:
Taking tyrannical action against a group for the failings of a lunatic is a common tactic. Perhaps the lunatic acted at the instigation of the tyrant(s). The question then would be whether the lunatic's behavior was so out of line with what might be concluded of others that the common good required a radical deprivation of rights.I'm sorry to say I don't understand what Masugi is saying, so I can't reply.
Posted by Eric at 9:54 AM | Comments (27) | TrackBack
October 12, 2005
I Just Can't Think of One, Though.
(Apparently the headline is hidden behind a registration screen. It is: "Robot Improves Results in Gynecologic Surgery.")
Posted by Eric at 5:19 PM | Comments (5)
A Neo-Federalist View of Harriet Miers.
"...all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."
why, I'll eat my hat.
Posted by Eric at 5:14 PM
They Say the Heart of Rock 'n Roll Is Still Beatin' ... in Cleveland
This is bad, but in our lifetimes it will get much, much worse:
Duran Duran?
Adam Ant?
Def Leppard?
Thomas Dolby? ("Science!")
Posted by Eric at 9:58 AM | Comments (15)
The Politics of Pie at UNC-Chapel Hill
Neither the radio story nor the article in the campus newspaper identified who was disrupting the speech. I assumed it was anti-gay activists.
How naive of me. According to a letter to the editor of the campus paper, the disrupters were "supporters of gay/lesbian/bisexual/transgender rights."
Shameful tactics.
And a shamefully muted response from the university community. If (as I had imagined) the speaker had been assaulted and his speech disrupted because he is gay, the campus would undoubtedly be in an uproar. But because the speaker was assaulted and his speech disrupted because he's a Republican, the campus response is ... a yawn.
Posted by Eric at 9:41 AM | Comments (10)
October 11, 2005
Are You There, God? It's Me, Eric.
Posted by Eric at 9:14 PM | Comments (2)
A Jewish Law Student in Germany
I think I'm a good bit more haunted by the past than this law student is; I see how the reaching out that she does is important and necessary, but I don't know if I could handle it myself.
In any event, it's an interesting thing to think about.
Posted by Eric at 2:20 PM | Comments (3)
Ideological Uniformity at American Law Schools
He's got a point--the same point that I often illustrate with the fact that I, who consider myself a middle-of-the-spectrum Democrat, am the faculty adviser to the Carolina Law School Republicans Society. (When my colleague Ron Link retired a couple of years back, we lost our one registered Republican. I guess the students figured that my relatively moderate politics were at least faux-Republican, if not the real thing. Any port in a storm.)
Posted by Eric at 8:32 AM | Comments (3)
Now We're Getting Somewhere.
Posted by Eric at 12:09 AM | Comments (1)
October 10, 2005
Young on Bazelon on Meirs
No, we can't.
But I think Bazelon's making a slightly different point, or if she isn't, I'll make it myself. The question is not whether private law requires more intellectual and legal acumen than government work (or at least certain sorts of government work). The question is whether a nominee to the Supreme Court justice is less qualified than others because she has spent her professional life pretty much wholly outside the sorts of legal conversations that are common among top government lawyers. I tend to think the answer to that question is "yes."
Posted by Eric at 10:07 PM | Comments (5)
Scary Science at CNN
Could somebody please explain why cnn.com decided to illustrate this essentially upbeat article about how eating fish keeps you smarter longer with the utterly terrifying graphic you see to the left?
Posted by Eric at 9:22 PM | Comments (5)
A Loss.
Posted by Eric at 4:22 PM
Crap Echoes in the Blogospheric Chamber
I've always thought it might be salutary to have a non-lawyer or two on the Court. God knows we have plenty of businessmen, scientists, historians, housewives and others who are perfectly competent to read and understand the Constitution or a federal statute. And I think it would be fun to have such a person say, just once, as the Justices are deliberating: "Where does it say that?"than Right Blogistan starts quoting him verbatim, as if he had said something clever and insightful, as opposed to banal and idiotic.
Posted by Eric at 1:21 PM | Comments (10)
The Hammer in 'Cuffs?
Posted by Eric at 9:10 AM
October 9, 2005
Why Multiple Reviews of the Same Book at the NYT?
Mary Roach's "Spook" (W.W. Norton) seems like a clever idea, amusingly written. Nutty quasi-scientists doing bizarre experiments about the afterlife. Fine. Give it one of those little one-paragraph jobbies in the middle of the Book Review Section and move on.
Yet Janet Maslin reviewed it at length three days ago, and Kate Zernike reviews it again today in the Book Review section.
This happens not infrequently at the Times. I understand that the Book Review Section operates with a good deal of autonomy from the editorial process of the "regular" paper, but honestly ... would it be that hard to coordinate a policy of just one Times review for a new book?
UPDATE: Another example -- far more extreme -- is the Times's fixation with Joan Didion's new book about her reaction to her husband's sudden and unexpected death. It's here. And here (lengthy excerpt from the book itself). And here. And here. And here. And here. Didion's obviously a major figure in American literature, so we can cut the Times a little slack. But all of this attention, over and over again? Come on.
Posted by Eric at 1:25 PM | Comments (2)
October 8, 2005
Pop Con Law Quiz! Fill in the blank: "Commerce, undoubtedly, is traffic, but it is something more: ______"
My goodness. Is that what the kids're calling it these days?
(Answer to the quiz, from Gibbons v. Ogden, 22 US 1 (1824), is here, if you read carefully.)
Posted by Eric at 11:56 PM | Comments (4)
Free! Alive! French Guiana!
French Guiana: Shedding image of prisons, death
Note to French Guiana's new public relations firm: Nice work!
Posted by Eric at 8:58 AM
October 7, 2005
Recoil in Nausea from the Miers Nomination.
One of the things that someone as a sixth-generation Texan that I want to add to this call and that is this: The two things that are probably … there are two virtues that are valued as highly as any virtue can be valued in the Texas culture, and those two virtues are courage and loyalty. Courage and loyalty. And this President, he knows that Harriet Miers is also a Texan, and, with a degree of understanding that would never have to be articulated, he and she both understand that if she were to get on the Court and she were to rule in ways that were contrary to the ways that the president would want her to approach her role as a justice it would be a deep personal betrayal and would be perceived as such by both by him and by her.Just nauseating, and embarrassing.
UPDATE: What Sally Greene says, too.
Posted by Eric at 12:56 PM
Investigate The Miers Nomination.
"Let me tell you this from the perspective of someone who litigates cases regularly in the Supreme Court of the United States. I'm involved in three three cases at the Court this Term, and believe me: I want Harriet Meirs up there voting on these critical cases."This, folks, is an outrage. The White House has lined up a lawyer with cases now pending before the United States Supreme Court to get on a White-House-sponsored conference call to tell conservatives that they should support the nominee so that she can vote in his pending cases!
This is dirty, dirty pool. Filthy.
Mind you, if Sekulow wants to say this stuff on his own, no problem. But here, in this conference call, he has the involvement and endorsement of the White House.
And if Harriet Miers has an inkling that the White House is lining up Sekulow to make this particular pitch, why, I would say that's disqualifying right there.
(One wonders, incidentally, whether Sekulow worked with the White House and participated in similar conference calls on the Roberts nomination--a nomination run by none other than Harriet Miers.)
Posted by Eric at 12:02 PM | Comments (6)
Withdraw the Miers Nomination.
Harriet Miers is "somebody who not only makes decisions based on what's in the Constitution but makes decisions that ... uh ... uh, she believes strongly in."
Oh. So Justice Miers' own strong beliefs will inform her constitutional interpretation? Really? I thought that was what judges weren't supposed to do.
This tape should be the end of this nomination. Period.
Posted by Eric at 11:53 AM
Listen In On The White House's Pro-Miers Strategy!
You can listen to the whole thing by clicking on the link at Crooks and Liars here.
Please take the time to listen.
Posted by Eric at 11:49 AM | Comments (1)
I've Always Been Partial to Brockholst, Myself
"In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade . Miers said she meant Warren Burger, the sources said."Did she also say she's a big fan of Horace, Willis, and Mahlon?
What an absurd answer. On every level. It is absurd to think that she typically refers to Supreme Court justices by their first names. It is absurd to think that Earl Warren is one of her favorite justices. And it is absurd to think that any astute student of the Court would view the disorganized, vain, petulant, and mediocre Warren Burger as a favorite.
My guess here is that she was not referring to Burger. My guess is that she was referring to Earl Warren, and that the name slipped out because it's a talking point: Earl Warren is the most famous example of a person who--like Miers--was never a judge before joining the Supreme Court. So this is a name that her handlers have probably been encouraging her to raise in response to questions (especially from Democrats like Leahy) about whether a person who has never been a judge can do the job of a Supreme Court justice.
It was, in other words, a right answer--but to the wrong question.
Posted by Eric at 8:45 AM | Comments (6)
October 6, 2005
Law School Admissions: Are Faculty Just Choosing Themselves?
Peter Friedman, of Case Western Reserve's law school, agrees with Gladwell, and thinks that law faculties cling to the LSAT for self-referential reasons:
"Law schools ... are run by their faculty, and the principal qualification to be a law professor is that you were a top law student. So a law faculty is like any other group that succeeds within a given system--they tend to believe the system that picked them out is a well-functioning meritocracy. It recognized their merit, didn't it?"
There is much to what Peter says. I do think, though, that Peter might overstate the extent to which the existing admissions systems at law schools today reflect conscious (or even subconscious) faculty preferences. It is technically true that "law schools are run by their faculty," but in my experience on the faculty at a couple of law schools, I have the impression that admissions tends to run as a sort of semi-autonomous unit within the school rather than as an actively faculty-designed and faculty-managed enterprise.
The result is that a school's current admissions system is far likelier to reflect an antiquated set of judgments modified by years of slight bureaucratic modifications and kept in place by the considerable forces of academic inertia, than it is to reflect a snapshot of what the faculty might currently prefer.
We might well be better served by an admissions model that emphasized aptitude for the skills top lawyers must possess, rather than the skills top law students must possess. Peter cites a recent study that suggests such an admissions model might be possible. But until law faculties are smacked in the face with evidence that the current system is truly broken, there will be little support for fixing it.
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Posted by Eric at 10:13 AM | Comments (4)
"She Won't Change."
Posted by Eric at 8:14 AM | Comments (1)
Why Does Harriet Miers' Name Appear As A Private Lawyer On Motions Decided in 2005?
A likely explanation is that the case has been pending since before Miers went to the White House, and somebody in the judge's chambers simply forgot to remove her name from the counsel list. Someone in Texas ought to check the brief that Locke Liddell & Sapp filed in 2005, though, to see whether Miers' name appears on it.VENSON M. SHAW and STEVEN M. SHAW, Plaintiffs, v. BROADCAST.COM, INC., REALNETWORKS, INC., and MICROSOFT CORPORATION, Defendants. 3:98--CV--2017--P UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION 2005 U.S. Dist. LEXIS 18715 August 30, 2005, Decided August 30, 2005, Filed
COUNSEL: [*1] For Jerry R Selinger, Special Master: Pro se, Jenkens & Gilchrist, Dallas, TX.
For Venson M Shaw, Plaintiff: Pro se, Plano, TX; Michael D Pegues, Munsch Hardt Kopf & Harr, Dallas, TX.
For Steven M Shaw, Plaintiff: Pro se, Leonia, NJ; Michael D Pegues, Munsch Hardt Kopf & Harr, Dallas, TX.
For Broadcast.Com Inc., Defendant: Thomas M Melsheimer, Steven H Stodghill, Fish & Richardson ---- Dallas, Dallas, TX; Eric N Whitney, Greenberg Traurig ---- Dallas, Dallas, TX; Renee Skinner, Crutsinger & Booth, Dallas, TX.
For Microsoft Corporation, Consol Defendant: Harriet Ellan Miers, Thomas George Yoxall, Locke Liddell & Sapp, Dallas, TX; John D Vandenberg, Kristin L Cleveland, Klarquist Sparkman, Portland, OR; T Andrew Culbert, Microsoft Corporation, Redmond, WA.
JUDGES: JORGE A. SOLIS, UNITED STATES DISTRICT JUDGE.
OPINIONBY: JORGE A. SOLIS
Posted by Eric at 4:11 AM | Comments (5)
October 5, 2005
Macho celibacy
Posted by Eric at 4:00 PM | Comments (13)
October 4, 2005
Melancholy Genius
Posted by Eric at 10:13 PM | Comments (2)
Pants on Fire
QUESTION: But she is not someone you've interviewed for the job that you didn't know. You'd known her a long time. Have you never discussed abortion with her?BUSH: In my interviews with any judge, I never ask their personal opinion on the subject of abortion.
QUESTION: In your friendship with her (OFF-MIKE)
BUSH: Not to my recollection have I ever sat down with her.
In November of 2003, Harriet Miers was Deputy Chief of Staff for Policy at the White House.
On November 5, 2003, the President signed the Partial Birth Abortion Ban Act of 2003 at a public ceremony.
Yet the President tells us he doesn't recall ever discussing abortion with Harriet Miers.
To that I totally say this. (click with speakers on)
Posted by Eric at 5:39 PM | Comments (6)
Harriet Miers: 3-for-4 in the Texas State Courts
Wrong.
A Westlaw search for cases in which Harriet Miers was an attorney of record reveals four reported cases (in thirty years) in the Texas state courts:
Disney Enterprises, Inc. v. Esprit Finance, Inc., 981 S.W.2d 25 (Tex. App. 1998) (contract law, agency law, personal jurisdiction) (won)Microsoft Corp. v. Manning, 914 S.W.2d 602 (Ct. App. Tex. 1995) (class-action certification) (lost)
McClure v. Casa Claire Apartments, Ltd., 560 S.W.2d 457 (Tex. Civ. App. 1977) (mortgage law and dispute about jury verdict) (won)
Perkins Const. Co. v. Ten-Fifteen Corp., 545 S.W.2d 494 (Tex. Civ. App. 1976) (state-law conflict about priority of liens) (won)
Posted by Eric at 8:13 AM | Comments (5)
Harriet Miers: 0-for-3 in the Fifth Circuit
A quick WestLaw search suggests that Harriet Miers has never argued before the Supreme Court (nor has her name appeared on brief there), and she has argued three cases before the Fifth Circuit (with her name appearing as additional counsel on a handful of others) over the last 30 years -- two of them pro bono or by appointment of the court. Her argued cases are: Thanksgiving Tower Partners v. Arnos Thanksgiving Partners, 64 F.3d 227 (5th Cir. 1995) (commerical real estate dispute); Ware v. Schweiker, 651 F2d 408 (5th Cir. 1981) (volunteer pro bono counsel for Social Security disability applicant, through legal aid program); Popeko v US, 513 F.2d 771 (5th Cir. 1975) (sec 2255 appeal for federal prisoner, by appt of court).
She lost all three of the appeals she argued.
Posted by Eric at 8:03 AM | Comments (1)
October 3, 2005
Harriet Miers the Law Student: Budding "Judicial Activist?"
The facts of the case were that a black man made lunch reservations by telephone at the hotel's restaurant. But when he showed up for lunch and picked up a plate in the buffet line, a restaurant employee grabbed the plate out of his hand and told him that the restaurant did not serve blacks. He sued for battery and infliction of emotional distress.
There is just one little gem in Miers' piece that lurks (as all little gems do) in the footnotes. She is discussing the question of whether the Texas courts had the authority to create a new tort of intentional infliction of emotional address where the legislature had not done so. She appears to come out in favor of such a power (which, to my eye, is an unremarkable feature of our system of common law adjudication), but drops a footnote in which she says this:
"[An earlier Texas court] reasoned that the common law should rule unless changed by the legislature and that the question of the 'new tort' was embedded in serious policy considerations which should be determined only by the legislature. However, courts have both changed common law where it became obsolete and have ruled in decisions involving vital policy questions with great success."She was right, of course: courts have done these things. Note, though, that it's a good bit different from the usual "courts-should-follow-the-law-and-not-make-the-law" mantra that gets recited at confirmation hearings.
Posted by Eric at 1:43 PM | Comments (3)
The W. Swagger
Here's mine, though: With near-record low approval ratings and the FEMA/Katrina disaster just behind him, the President sure picked a strange moment to say to the entire nation, left, right, and center: "Just trust me on this one."
Posted by Eric at 1:13 PM | Comments (1)
A Couple of Interesting Facts on Harriet Miers
Posted by Eric at 8:03 AM
SCOTUS Nominee
The base, by the way, is not happy. (Scroll down through the comments.)
Posted by Eric at 7:40 AM | Comments (4)
Patience, My Dear. Patience.
Just recently a woman had the audacity to suggest that it would be nice for the President to appoint a woman to the Court to replace Justice O'Connor. Naturally this extreme suggestion has brought out the best in people. Consider, for example, this reply from Andrew Hyman:
Of course, it’s been a difficult and bumpy ride integrating women into the workforce. But I hope that progress continues to be made in that area, for all of the women that want professional careers. And maybe Judge Willaims will be nominated tomorrow, which could well turn out to be terrific. My only point is that it would be nice if women would FIRST demand the kind of experience that Luttig was able to get, and THEN demand more spots on the Court, rather than the other way around.
Posted by Eric at 7:27 AM | Comments (1)