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June 30, 2006
Next Week's Guest-Blogger
I'll have a post up on Sunday night introducing him more properly, but I thought I'd mention it today. He's an accomplished young legal scholar, and a novelist to boot. His first novel, "In the Shadow of the Law," comes out in paperback next week. Just in time to take to the beach!
Posted by Eric at 11:21 AM | Comments (2) | TrackBack
June 29, 2006
Southern Living.
you get used to some serious bugs. My younger daughter took a walk this afternoon and came back with this big fella.
Posted by Eric at 10:10 PM | Comments (1) | TrackBack
June 28, 2006
Meowch.
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Iron Maiden: Religious Obscurantists
Answer below the fold.
Objectionable neo-fascism.
Or so thought the censors of the Soviet Union, who banned their music on that basis.
Pink Floyd were banned for "distorting Soviet foreign policy." The Village People were too "violent." (!) And Donna Summer was banned for "eroticism," though I would have thought that "basic suckiness" would have been reason enough.
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Making Hay Out of "Hey."
(courtesy of Malkin(s)watch.)
Posted by Eric at 11:24 AM | Comments (1) | TrackBack
June 27, 2006
High Noon At The Supreme Court On The Purpose Of Criminal Appeals?
Of course, appellate crimlaw types know all about the "harmless error" doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between "structural errors" in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and "trial errors" in the criminal process (which require appellate reversal of convictions unless they are "harmless beyond a reasonable doubt" to the outcome.
The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant's not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn't allow that lawyer to represent the defendant or to participate in the trial at all.)
The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.
Appellate reversal of a conviction is a remedial tool: it's by far the most direct method that an appellate court has to send messages to trial judges, trial lawyers, and the police about what's crucially important at criminal trials and in criminal investigations. Sure, courts can fill their opinions up with dicta about the importance of this or that right or procedure in the trial and investigative process, but reversals are the things that judges, lawyers, and cops really pay attention to.
For this reason, the decision about whether to place a particular trial or investigative error in the "automatic reversal" category or the "reverse-only-if-the-error-made-the-conviction-unreliable" category is a very important decision.
It's a decision about values. In making the call, the appellate court is asking itself a very important question: what are the values in the criminal trial and investigative process that we appellate judges ought to be enforcing?
This is precisely the point on which the majority and the dissent parted company in yesterday's opinion. The 5-Justice majority (led by Justice Scalia) sees the right to choose an attorney as serving a value of constitutional magnitude – choice about representation – whose importance is a constant in all trials, not a function of the facts of a particular case. For the majority, it's a right grounded in autonomy – we might even say a dignitary right of the defendant to control the basic question of who will speak for him, and against the government, in a trial for his liberty.
The 4-Justice dissent (authored by my old boss Justice Alito) sees no point in this. If the lawyer who actually did represent Mr. Gonzalez-Lopez was an effective lawyer, says the dissent, then there's no point in rolling out the big gun of appellate reversal. The conviction was fair, and an accurate reflection of the defendant's guilt. Once an appellate court has assured itself of the fairness and accuracy of the verdict, its function is really at an end. To whatever extent the 6th Amendment protects the defendant's autonomy and dignity interests, the dissent effectively implies, those things aren't our department up here on appeal.
I note two final things.
One of them is the breadth of Justice Alito's position. "The touchstone of structural error is fundamental unfairness and unreliability," he says on page 8 of his dissent. In this part of the opinion he challenges something that I think we had all assumed was settled: namely, that if an error goes in Fulminante's "structural error" rather than "trial error" column, it requires automatic reversal of a conviction. Justice Alito argues here for the creation of a new category: "harmless" "structural" errors. This would be a significant shift in the law. And he has four votes for this proposition; none of the other dissenters expressed discomfort with this portion of the dissent.
The other final thing I note is that lots of precedent contradicts Justice Alito's position about structural error. Consider, for example, race discrimination in the selection of a grand jury. Under current law (Vasquez v. Hillery), a defendant's conviction must automatically be reversed if the grand jury that indicted him excluded blacks on account of their race. It is of no moment that the grand jury had enough evidence to indict, or that a properly selected trial jury convicted the defendant after a fair trial. It's structural error, and the conviction gets reversed. The value that appellate reversal is enforcing in a case like this has nothing to do with the reliability of trial verdicts. It has to do with the value of antidiscrimination in the criminal process.
Or consider the right to a public trial. It is quite possible to imagine trials that would be far likelier to produce "reliable" outcomes (in the sense that Justice Alito means) if they were conducted in private. Yet the denial of a public trial is a structural error requiring automatic reversal; there's a value in the public-ness of a trial that doesn't implicate reliability but that merits appellate policing.
Or consider the right of a criminal defendant to represent himself, established in Faretta v. California. Surely the results of many trials of self-representing defendants would be more "reliable" (in the sense that Justice Alito means) if the defendants were forced to be represented by a competent lawyer. Yet the denial of the right to self-representation is automatically reversible structural error. There's a value to the right to self-representation (grounded, like the right in Gonzalez-Lopez, in the defendant's autonomy and dignity) that deserves appellate policing without regard to outcomes.
Justice Alito seems to have four votes to take the Court in a very different direction on this very important question.
(Hmmm. This blog post ended up feeling suspiciously like a rough draft of a law review article. Especially for me. What has come over me?)
Posted by Eric at 11:25 AM | Comments (3) | TrackBack
Does HIPAA Have A "Celebrity Viagra" Provision?
This time it's Viagra.
According to attorney Roy Black, who apparently is now on retainer for lightning response to all of Limbaugh's prescription drug snafus, a doctor had prescribed the Viagra, but it was "labeled as being issued to the physician rather than Mr. Limbaugh for privacy purposes."
Well. That worked nicely.
Posted by Eric at 9:44 AM | Comments (1) | TrackBack
June 22, 2006
Pop quiz.
Never could I have imagined growing up that I would see the day when brown- and yellow-skinned people would stand on the side of pink-skinned bigots railing against the problem of too many of "them."
Answer (as if you needed it) below the fold.
Michelle Malkin, "Whitewashing Asians Out of Racial Preference Debate," Seattle Times, May 26, 1998, at B4.
In the piece, she complains that as an Asian American, she might someday not qualify for racial set-asides for minorities.
I am not making this up.
Posted by Eric at 11:11 PM | Comments (8) | TrackBack
June 21, 2006
Goodbye Norma Jean, Though We Never ... Knew You Were Jewish
On the other hand, the idea that Marilyn Monroe took her vows under a chupah is a surprise.
Perhaps they stepped on a martini glass.
Posted by Eric at 12:02 PM | Comments (1) | TrackBack
Where Is The Academic Truth Squad?
I just heard Smith on our local talk radio station flogging his latest book, "Disrobed: The New Battle Plan to Break the Left's Stranglehold on the Courts," about which its publisher (Random House) says this:
America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.So steamed was I by Smith's harping on the theme that the federal courts are in the grips of "loony leftists" (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said "hi," Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can't possibly perceive the truth about how dominated the entire legal system is by the legacy of "fifty years" (!) of radical leftist control of the courts. The show's hosts had to interrupt him to create space for me to ask my question, which was this:
Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the "loony left," or for that matter, of any kind of left, loony or otherwise?Smith's response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.
Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can't imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with "loony lefties," or lefties of any stripe.
These sorts of claims -- because of their prevalence, even their ubiquity -- play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.
Why not?
(Cross-posted from Concurring Opinions.)
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June 19, 2006
'Canes!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
Posted by Eric at 11:19 PM | Comments (1) | TrackBack
A Small Step Closer to Knowing Who Killed Theresa Allore?
The search party did find some stuff -- forensic value currently unknown -- and drew lots of attention to this cold case and many others like it across Quebec and across Canada.
Here's the follow-up article from the National Post. I found it quite moving, and not only because the guy on a quest is my friend.
(Incidentally, if I'm not mistaken, John is wearing a Carolina Hurricanes t-shirt in the photo, which appears today in the National Post. A gutsy move for a Canadian expat returning to Canada on the weekend of Games 6 and 7 of the Stanley Cup series between the 'Canes and the Edmonton Oilers.)
(Cross-posted from Concurring Opinions, where I continue to guest-blog this week.)
Posted by Eric at 10:51 AM | Comments (1) | TrackBack
June 18, 2006
Your Honor Your Father
The young man died recently of a drug overdose. His real father is now complaining that the judge's involvement with the young man was unethical.
An odd case to think about on this Father's Day.
(Cross-posted at Concurring Opinions.)
Posted by Eric at 9:09 PM | TrackBack
June 16, 2006
Searching for Justice for Theresa Allore -- And Other Candian Crime Victims
Since 2001, John has been on a quest to solve his sister's murder, often without much help from Canadian authorities.
Their do-it-yourself search is drawing significant attention north of the border -- not just to Theresa's murder, but to other "cold cases" and to the frustrations of Canadian crime victims and their families in their dealings with the Canadian criminal investigation bureacracy.
The National Post has a very good article about it that you can read by clicking here.
Best of luck to John and his fellow searchers tomorrow.
Posted by Eric at 11:06 AM | Comments (4) | TrackBack
Issei Internment and the Turkmen Opinion: The Shoe Does Fit.
My comparison to the internment of the Issei has led some to cry foul. The claim is that because the Turkmen ruling applies only to illegal aliens, and the Issei were legal resident aliens, the analogy to the Issei internment is inapt, even scandalous.
Not so. The Issei were legal resident aliens until December 7, 1941 -- but after that date they were also enemy aliens, over whom the President, by statute, had as complete a power as is imaginable. The Alien Enemy Act (50 U.S.C. sec. 21) gave FDR the power to arrest, detain, and deport aliens of countries with which the U.S. was at war, under rules of his own making, without (or virtually without) judicial review.
Attorney General Francis Biddle decided to offer hearings to individuals arrested as enemy aliens after Pearl Harbor, even though the Alien Enemy Act did not formally require this. But in administering the system of hearings, the government engaged in stark racial discrimination. The government selectively arrested certain German and Italian aliens, and gave them hearings. (These hearings were not models of fairness, it must be noted. But they were hearings of a sort.) The government detained the Issei en masse, and offered hearings to almost none of them -- just a very small subset of a couple of thousand who were arrested immediately after Pearl Harbor.
It was this racial selectivity in enforcement -- even as to enemy aliens -- that led the Congress to apologize and pay reparations in 1988.
And it is just this sort of racial selectivity in enforcement that Judge Gleeson's opinion in Turkmen permits.
UPDATE: David Cole, one of the Turkmen plaintiffs' attorneys, draws the parallel with the Issei internment in this piece, "Manzanar Redux," in today's Los Angeles Times.
Posted by Eric at 8:50 AM | Comments (2) | TrackBack
June 15, 2006
Going "Desert Storm" One Better.
They are calling it "Operation Mountain Thrust."
"We're very pleased with this code name," said Lance Corporal Orel Sachs, head of the Pentagon's Office of Double Entendre.
Posted by Eric at 10:33 PM | Comments (1) | TrackBack
Japanese Internment Gets A New Breath of Life in the Eastern District of New York
It is the dismissed claims that interest me, especially the claim that simply because of their nationality and their religion, the government detained these post-9/11 detainees for far longer than necessary after they had received final orders of removal or grants of voluntary departure, without affording them a hearing to determine whether the continued detention was warranted. Naturally, the plaintiffs presented this claim under the equal protection component of the Fifth Amendment's due process clause.
Judge Gleeson made quick and dismissive work of this claim: these plaintiffs were aliens, not U.S. citizens, and for that reason the government was free to single them out for special enforcement on account of the unadorned fact of their national origin without violating norms of equal protection.
The precedent on which Gleeson relied was the Supreme Court's decision in Reno v. American-Arab Antidiscrimination Committee. There the Court held that federal statutes did not confer jurisdiction to entertain a selective-prosecution challenge to a deportation proceeding. (The plaintiffs in that case were members of an alleged terrorist group, the Popular Front for the Liberation of Palestine; they alleged that the government violated their constitutional rights by singling them out for deportation in violation of their First Amendment rights to expression and association.)
For Judge Gleeson, this was an easy issue:
In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.But this issue should not have been so easy.As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. … I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. … Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress.
There is a historical precedent for the prolonged wartime detention of an alien group on the simple basis of their ancestry, and – perhaps not surprisingly, given the direction he was heading – Judge Gleeson did not mention it. That precedent is the multi-year incarceration of aliens of Japanese ancestry in World War II, without any sort of hearing to ratify their continuing and prolonged detention. (The government also incarcerated U.S. citizens of Japanese ancestry, but it is the detention of Japanese aliens, the so-called "Issei," that I speak of here.)
To be sure, the lengthy incarceration of the Issei without hearings was never the subject of a lawsuit, as was the incarceration of their citizen children (see Ex parte Endo, the subject of a recent mini-symposium at my blog IsThatLegal).
But it would be wrong to say that this prolonged detention was legal, or that the illegality of the detention has gone unredressed. Quite the opposite is true. The Civil Liberties Act of 1988 said the following:
“The Congress recognizes that … a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II. … For these fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry, the Congress apologizes on behalf of the Nation.”The legislation went on to authorize an apology and reparations payments for the illegal prolonged detention – not just to U.S. citizens, but to resident aliens of Japanese ancestry.
Judge Gleeson is undoubtedly right that the executive has broad discretion to prioritize its immigration enforcement, and that in that enforcement, it can single out people of certain nationalities for deportation before others. But that is not the nub of the Turkmen plaintiffs' now-dismissed claim. The nub of their claim is that the government held them in prolonged and unjustified detention, beyond any period necessary for the enforcement of the deportation laws, and without any sort of hearing to approve their prolonged detention, simply on account of their national origin. Focusing on prolonged detention rather than the simple decision to deport, their claim is therefore much more like the one legislatively vindicated in the Civil Liberties Act of 1988, and less like the deportation challenge that the Court rejected in Reno v. American-Arab Antidiscrimination Committee.
As I said, Judge Gleeson did not note the precedent of the illegal prolonged incarceration of the Issei in World War II. Who, in this day and age, would wish to rely on such an ugly episode for support?
But that ugly episode is fairly direct historical precedent for the prolonged detentions alleged in the Turkmen complaint. Candor would require Judge Gleeson to admit that he has given the government carte blanche not just to deport aliens of particular races, nationalities, or religions, but to confine them at length in this country, on the basis of nothing but race, religion, or nationality, without any sort of hearing before a neutral arbiter.
"National emergencies are not cause to relax the guarantees in our Constitution," said Judge Gleeson.
Yet that is just what his opinion does.
(Cross-posted from Concurring Opinions)
Posted by Eric at 3:28 PM | Comments (5) | TrackBack
June 14, 2006
For the Love of Dear Old Fountainhead U.
Proposals for a college slogan, mascot, and fight song are welcome. Leave a comment.
(Cross-posted from Concurring Opinions.)
Posted by Eric at 4:09 PM | Comments (6) | TrackBack
What Is This Picture? God Only Knows!
(Cross-posted from Concurring Opinions.)
Posted by Eric at 11:44 AM | Comments (6) | TrackBack
June 13, 2006
"An Inconvenient Truth" (and its inauspicious start)
Be advised, though, that the book is not just about global warming. It's also very much about Al Gore. He intersperses his scientific material, diagrams, photographs, and big-font explanations with family snapshots and small-font autobiography. Coming from a lifelong politician, this material really can be seen as nothing other than campaign literature.
I myself didn't mind the personal stuff too much, because I admire much of what Gore has done with his life, and I learned some things about his family that I didn't know. But I do think it would have been smarter for him to leave this material out; including it just makes the job of those who wish to discredit the science he's advancing that much easier.
I'll confess, though, to one moment of eye-rolling. And it came early -- in the very first column on the very first page. Gore alludes to his son's near-fatal accident in 1989, and then says this: "[D]uring that traumatic period ... I made at least two enduring changes. I vowed always to put my family first, and I also vowed to make the climate crisis the top priority of my professional life."
I recognize that "putting one's family first" can mean lots of different things to lots of different families. But I'll go out on a limb and say that one thing "putting your family first" just can't mean is being President of the United States.
This opening passage of the book rang false to me -- a politician's platitude. Not a good start for a book about truth.
(cross-posted from Concurring Opinions, where I'm guest-blogging for a while.)
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Groucho Marx Would Surely Have Something To Say About This.
Posted by Eric at 12:07 PM | Comments (2) | TrackBack
June 9, 2006
The Broadcasting Arm of the American Nazi Party
Should the body of Zarqawi be smeared with bacon fat and dropped over Detroit?He devoted most of last night's radio program to calling repeatedly for the government to shut down CNN and arrest its reporting staff on sedition charges.
Posted by Eric at 8:23 AM | Comments (3) | TrackBack
Question Authority? Not If You Want To Make Your Flight.
And don't ask questions.
Posted by Eric at 7:12 AM | Comments (5) | TrackBack
June 8, 2006
Cathy Young on Islamophobia
Radical Islam poses problems for the West, from within and from without. But if our response turns to bigotry directed at all Muslims, it will leave little reason for hope. That way lies the madness of apologias for Milosevic, of advocating genocide as the only way to deal with “their kind.”Read the whole thing.
Posted by Eric at 9:59 AM | TrackBack
This Post Is In English, Dammit!
The best bit:
Indeed, when I think of the need for English literacy tests for immigrants, I remember my maternal grandfather, Nicola Guida, who showed up at Ellis Island (what a polyglot slum that was!) in 1913 and then proceeded to waste most of his time working manual labor jobs like quarrying rock and digging basements by hand and raising four children, rather than taking the time to learn English, the ingrate. It’s one of the great pities of my life that, because I speak no Italian (other than what I picked up via the Godfather movies) and he spoke no English (other than what he picked up via Gunsmoke), I was never able to communicate effectively to him just how un-American he was.I take some solace in the fact that, even if Congress passes no law to force English on immigrants, plenty of third-generation Mexicans will find it equally tough to talk with their grandparents. As the Pew Hispanic Center documents, about 80 percent of third-generation Latinos in the United States speak English as their dominant language—and exactly 0 percent speak Spanish as their dominant language.
The rest are considered bilingual, which means they’ll be able to tell their elders in their native tongue to learn English or get the hell out of the Land of Opportunity.
Posted by Eric at 9:53 AM | Comments (2) | TrackBack
June 7, 2006
It Worked Beautifully Last Time ...
Hmm....
Why do I think I've heard this before?
UPDATE: The death of al-Zarqawi, by contrast, is great news.
Posted by Eric at 10:07 PM | TrackBack
Jack Boger Named New Dean At UNC Law School
Jack has been on the UNC faculty for 16 years, serving most recently as Wade Edwards Distinguished Professor of Law and Deputy Director of the law school's Center for Civil Rights (alongside civil rights legend and center director Julius Chambers). He is an enormously popular and admired teacher, having won the school's annual teaching award many times.
Jack is also an alumnus of the law school -- class of '74 -- and a North Carolina native.
Jack's a former staff member of the NAACP Legal Defense Fund, where he directed the LDF's Capital Punishment Project. (ConLaw and CrimPro buffs: Jack argued McCleskey v. Kemp in the Supreme Court.) He also chairs the Poverty and Race Research Action Council, a Washington, D.C.-based federation of civil rights, civil liberties and legal services groups that encourages national coordination of social scientific research and legal advocacy on behalf of the poor. He is the co-editor of Race, Poverty, and American Cities (UNC Press 1996) and, more recently, School Resegregation: Must the South Turn Back? (UNC Press 2006).
On top of all that, he's a prince of a guy.
Congratulations, Jack!
Posted by Eric at 9:45 PM | Comments (1) | TrackBack
Jerry Kang: Dodging Endo
On the other hand, I recall Endo not as nemesis to Korematsu, but as accomplice. Indeed, Endo was the final maneuver in a complex strategy that the Supreme Court deployed in order to stay out of the military's way; but never to officially approve of the internment; and finally, to provide "plausible deniability" to the political branches. The core point is that Endo "won" in a way that absolved the political branches of any responsibility for the civil rights disaster. Instead of ruling on constitutional grounds, the Court ingeniously decided the case on administrative law. The Supreme Court held -- with a straight face -- that the War Relocation Authority (WRA), which operated the camps with millions of dollars of federal funds, was never actually "authorized" by President Roosevelt or Congress. In other words, the WRA was a rogue agency, acting ultra vires. This was why Endo had to be freed. Neither President nor Congress was at fault.
Why does this interpretive dispute matter? First, in the law reviews, Endo is being remembered more triumphantly than Gudridge intended, as an example of the Supreme Court checking Executive Branch excesses, even during times of war. Nothing could be further from the truth. The Supreme Court should be blamed for its machinations, not praised for its backbone.
Second, in judicial opinions, Endo is being remembered without irony. Endo is now being cited for the "clear statement rule"--that in order to detain American citizens, the political branches must authorize such detention unambiguously. The argument goes like this: Just as the internment was not authorized back during World War II, see Endo, detention has not been authorized in the global war on terror. But this reinscribes a falsehood. FDR and Congress did authorize the internment camps. It's just that the Court declined to see to this inconvenient fact.
As a matter of history, Endo should be understood as dodging accountability. As a matter of doctrine, Endo should be treated in the same way that we treat Korematsu. Even nonlawyers know that the Korematsu case created the foundations of "strict scrutiny," which remains a critical component of our equal protection jurisprudence. In other words, as an abstract legal rule, Korematsu remains good law. However, how this rule was applied to the facts is universally disdained. Endo's abstract legal rule, demanding a clear statement, can also be preserved as good law. However Endo's application to the facts in World War II should be sharply rejected as deceitful.
If we don't, what will prevent the use of Endo to dodge accountability again? After horrific tortures in some detention camp are brought to light, low-level soldiers will be prosecuted but high-level officials will be absolved. After all, there was never any "clear statement" authorizing quite this sort of barbarism. See Endo.
For the full argument, see my "Denying Prejudice" (UCLA L. Rev. 2004) and "Watching the Watchers" (Law and Contemp. Probs. 2005), both available at: http://jerrykang.net/Scholarship/scholarship.htm.
Posted by Eric at 8:56 AM | TrackBack
June 6, 2006
Patrick Gudridge: Honoring Mitsuye Endo, Remembering Her Case
The Supreme Court decision that bears her name is invoked more often now than in the past. This is partly a matter of circumstances. The events we associate with September 11, 2001, and succeeding years – like those of December 7, 1941, and afterwards – raise questions about government security measures, about their necessity and decency (a diplomatic term). The 1944 Endo decision declared internment to be groundless – unjustifiable treatment of Mitsuye Endo and therefore thousands and thousands of other persons. We read Endo, not surprisingly, to find out what we can learn.
In the process, Endo becomes controversial. Justice Douglas, it appears, took no forthright stand in writing for the Court, evoked no clear constitutional commands, seemingly assigned responsibility for his conclusion to Congress and President Roosevelt. Irony has its place. It is certainly possible to argue, however, that the Endo opinion, even as it declares internment void, was written in a way that absolves the principal branches of government of responsibility, treating the whole system of camps and their turbulent administration as simply a bureaucratic misunderstanding. On this reading, the Court also absolved itself. Endo does not call into question the defenses of government action Chief Justice Stone and Justice Black had constructed in Hirabayashi and Korematsu. Jerry Kang presses arguments like these especially incisively and emphatically. As one result, he has substantially increased the likelihood that readers of Hirabayashi and Korematsu, passing judgment on the work of the Supreme Court in those cases, will remember Endo as well, and the costs of the minimalist tack that the Court apparently chose to take.
The Endo opinion, it should also be said, is notably complex. If Justice Douglas does not invoke constitutional commands, he does plainly summarize constitutional premises, and he treats these premises as mandatory, as inescapably organizing judicial interpretation of the statutes pertinent to the case. It is within the bounds of this constitutionally framed reading, he asserts, that the conclusion that internment is unlawful becomes evident. This approach, we know, does not turn out to be unique to Endo. Justice Harlan would proceed quite similarly in his important “Red Monday” opinion in Yates v. United States, reading the Smith Act as encoding constitutional free speech concerns, and as thus inconsistent with jury instructions in Communist Party prosecutions. Justice Douglas himself later invoked constitutional premises as just as much part of the Constitution as particular provisions of the Bill of Rights in Griswold v. Connecticut. (Chief Justice Rehnquist and his colleagues would effectively echo Douglas in elaborating their distinctive conception of constitutional federalism.) If Endo is modest – and therefore subject to criticism – it is modest at only one level. Endo also illustrates an approach to putting to use and interpreting the Constitution that attributes dramatic depth to constitutional language.
We may also remember Endo as one of several efforts by Supreme Court Justices to respond to a distinctive predicament. The collapse of earlier judicial conceptions of constitutional law that became especially evident in 1937 and in immediately following years marked many doctrinal formulas prominent in pre-war opinions as dubious resources, as arguably suspect starting points. In Hirabayashi, in the long, no longer much read latter part of his opinion, Chief Justice Stone relied heavily on the older cases to sidestep the question of whether the curfew at issue there was fatally racially discriminatory. It is perhaps one measure of how unpersuasive that effort was, even at the time, that Justice Black’s opinion in Korematsu works so hard not only to minimize its own significance, but at its outset attempts to reformulate the catch phrases summarizing the Supreme Court’s treatment of racially discriminatory government action. This reformulation, as Greg Robinson has noted, would later prove to be important – although it is also evident that the Court either did not yet fully appreciate, or was not yet willing to appreciate the implications of its new gloss in the Korematsu case itself. Justice Douglas’s opinion in Endo, in this instance much like Justice Jackson’s spectacular effort in West Virginia Board of Education v. Barnette, shifts attention away from doctrinal formulas to constitutional premises, dodges the sinkholes of not yet fully reconstructed, not yet entirely judicially manageable constitutional law.
This jurisprudential context (as it were) excuses neither Hirabayashi nor Korematsu – nor Endo’s minimalist surface. But it should suggest to us, sixty or so years later, that we ought to take stock of our own resources. Before the 1950s were over, the Supreme Court was able – largely through the efforts of Chief Justice Warren and Justices Harlan and Brennan – to develop a rich repertoire of devices for restricting (if never entirely eliminating) the “collateral damage” of Cold War national security worries. Are we now sufficiently similarly situated? If we are not sure, we may want to recall Endo once more, this time set against both Korematsu and Hirabayashi, as part of a process of charting the map of our own reconstruction.
For whatever reason we remember Endo the case, we will have occasion to remember Mitsuye Endo, and the thousands and thousands of other people who were forced to carry on their lives in the camps. We benefit, therefore, without doubt.
This is the second in a series of essays I am posting this week to commemorate the passing of Mitsuye Endo. The first, Greg Robinson's, appeared yesterday. Jerry Kang's will appear tomorrow.
Posted by Eric at 9:42 AM | TrackBack
June 5, 2006
Greg Robinson: Mitusye Endo, Great In Her Obscurity
On the one hand, Endo was largely disconnected from the actions connected with her name. Indeed, the fact that her case was brought at all, let alone went before the Supreme Court, was in some sense a matter of chance. Her original intent was not to challenge confinement as such, but to regain the civil service job in California from which she had been arbitrarily dismissed. Recruited as a test case by lawyer Jim Purcell, Endo either never met her lawyer or did so only on one occasion. It was Purcell who decided that the most promising way to proceed was to contest Endo’s confinement in the WRA camps; Endo was willing to serve as a plaintiff. Once her case was decided, she shied away from public scrutiny. She did not participate in the annual protests and commemorations that the Japanese American redress movement began in the 1970s (although she did produce a short oral history for John Tateishi’s 1983 anthology "And Justice for All"). Furthermore, because she won her case, she was not connected with the coram nobis petitions through which her fellow wartime litigants Gordon Hirbayashi, Minoru Yasui, and Fred Korematsu challenged their convictions, and were vindicated. Partly because she remained so private, and also no doubt partly because she was a woman and not a convenient symbol of manly self-assertion, she remained largely excluded from the pantheon of internment resister glory, or the honor roll of those who had “stood up.”
Yet, for all that her presence in the case was largely accidental, and her involvement in its preparation incidental, Endo showed at least as much courage and dedication to principle as any of the more prominent male Nisei plaintiffs. First, she came into contact with the lawyers because she was prepared to challenge her arbitrary dismissal from a California civil service job. The possession of such a job was an unusual achievement for a Nisei woman in the prewar days, when discrimination was the rule. Thus, in addition to her desire to hang on to such a prized position for herself, she was surely actuated by the sentiment that she needed to defend her rights on behalf of the larger group. After she brought her petition, Endo was removed from the Tule Lake camp to the camp at Topaz to remove her from the jurisdiction of the California court—a bit of government scullduggery that is not without some current echoes in the Padilla case. The War Relocation Authority’s chief attorney then travelled to see her and tried to persuade her not to continue, offering her an immediate “leave permit” if she would abandon the case, but Endo stuck to her principles. Endo remained in confinement for over 18 months so that the case could be brought and argued before the High Court. Even after her victory, she did not return to the West Coast and the job she had left, but instead settled permanently in Chicago (and lived and worked alongside African American colleagues, as an assistant to the city’s Human Rights Commission).
Not long ago I was discussing the wartime Supreme Court Japanese American cases with a distinguished historian, who posed a somewhat tendentious question that nevertheless zeroed in on the legacy of those cases: “Why is it that men like Gordon Hirabayashi and Minoru Yasui, who challenged Executive Order 9066 and arbitrary government power entirely on principle, have their contributions ignored, while Fred Korematsu, who challenged Executive Order 9066 in order to stay with his non-Japanese girlfriend, became renowned and was awarded the Presidential Medal of Freedom?” I answered as best I could that these things were in part a matter of luck—Korematsu’s case turned out to be the decisive case in its long-term impact—but also of Korematsu’s willingness to stand up when the decisive time came. Fred Korematsu, once he decided to appear publicly and talk about his case after many years of silence, was mobilized over the years to speak about his experiences and to raise his voice against the treatment of Japanese Americans. An ordinary man, rather than an intellectual, he served as an eloquent symbol. It is interesting that the historian did not mention Mitsuye Endo at all in his litany. She, after all, was a classic case of an ordinary person who stuck up for principle. Was this another case of the unfortunate obscuring of Endo and her case? Or was Endo herself perhaps (to paraphrase the title of the aria from Gounod’s "La Reine de Saba") “more great in her obscurity”?
--Greg Robinson, Université du Québec à Montéal
Posted by Eric at 1:16 PM | Comments (3) | TrackBack
This Week At IsThatLegal: An Online Mini-Symposium Commemorating the Life of Mitsuye Endo, A Quiet Civil Rights Hero
Minoru Yasui, an articulate attorney, resisted the dusk-to-dawn curfew that the military imposed on American citizens of Japanese (but not German or Italian). Gordon Hirabayashi, a religious pacifist, resisted both the curfew and the military's order that he report for exclusion from the West Coast. Fred Korematsu, a scrappy fighter who wanted just to go on living his life, refused to report for exclusion.
The litigant who really scared the military and the Justice Department, though, was a young Japanese American woman named Mitsuye Endo. At the time of the exclusion and incarceration of Japanese Americans, Endo was a twenty-two-year-old clerical worker in California's Department of Motor Vehicles in Sacramento. She had never been to Japan, spoke no Japanese, had been born and raised a Methodist, had a brother in the U.S. Army, and was of unquestioned loyalty to the United States. On July 12, 1942, while she sat behind the barbed wire of the "assembly center" at the Tanforan Racetrack south of San Francisco, an attorney filed a petition for a writ of habeas corpus in federal district court on her behalf.
Archival records from that time show quite plainly that government lawyers dreaded the Endo habeas corpus case. Most lawyers in the military, the Justice Department, and the War Relocation Authority (which ran the camps) were pretty sure they'd win the Yasui, Hirabayashi, and Korematsu cases – and they were right.
But most also feared they would lose Endo -- and they were right.
Indeed, it was their fear of a catastrophic loss in Endo (and not, for many of them, any strong sense of justice) that led them to press FDR to end the mass exclusion of Japanese Americans from the West Coast. Fearing he would lose California's electoral votes, FDR would not announce the end of the exclusion before the 1944 election. But he did permit the military to make that announcement in December 1944, just before the Court ruled in Endo that the War Relocation Authority lacked the legal authority to continue to detain loyal Japanese Americans. By announcing the end of exclusion moments before the Court's decision, the government hoped to drain Endo of its significance.
Here the government was successful. Endo has been forgotten, eclipsed by the more famous Hirabayashi and Korematsu cases.
Forgotten, too, has been Mitsuye Endo, and this seems to be how she wanted it. Unlike the litigants in the three well-known cases, Endo avoided the limelight. She moved to the Chicago area after the war, married (taking the last name Tsutsumi), had children, worked, and lived a quiet life.
Today, tomorrow, and Wednesday, I will post commemorations of Mitsuye Endo and her quiet legal heroism written by three leading experts on her case and its history and significance.
The first to appear – later today – will be by Greg Robinson, a professor of history at the University of Quebec at Montreal and author of, among many other things, By Order of the President: FDR and the Internment of Japanese Americans (Harvard University Press 2001).
Tomorrow I will post the commemorative thoughts of Patrick Gudridge, Professor of Law at the University of Miami School of Law and the author of, among many other things, the important article "Remember Endo?", which appeared in the Harvard Law Review in 2003.
On Wednesday, I will post the thoughts of Professor Jerry Kang of the UCLA School of Law, whose work includes some of the most careful and probing analysis of Endo, Korematsu, and Hirabayashi -- one example of which can be found online here.
I hope you enjoy the reflections of these three scholars on the life and legacy of a remarkable, if little-known, civil rights hero.
Posted by Eric at 9:40 AM | Comments (1) | TrackBack
Another Columnist Sees Danger in the Pope's Auschwitz Speech
In Germany itself by now, there is an established tradition of a much fuller recognition of national complicity in the Nazi project. For a generation, Germans have declined to portray themselves as mere victims and dupes, and German church leaders in particular have been forthright in confessing their culpability in relation to the Holocaust. In his portrayal of the past, both at Cologne and Auschwitz, Benedict is becoming a German apart.Hat tip: Lis Riba.. . .
If the Holocaust is remembered as having been the work of a small ``ring of criminals," with no relation to the deep structures of Western Civilization's attitude toward ``the other," as centrally represented by Christian contempt for Jews, then sources of future crimes against ``the other" remain protected. Roots of anti-Semitism, in particular, can sprout again.
Posted by Eric at 9:28 AM | Comments (3) | TrackBack
I See A Pattern.
May 11, 2005: An off-course airplane appears to be headed toward the White House, clearing the building, along with the Capitol Building and the Supreme Court. The President is bicycling in Maryland.
June 4, 2006: A man throws some bags over the White House fence and tries to scale it. President Bush is finishing up a bike ride in Maryland.
Posted by Eric at 9:21 AM | Comments (1) | TrackBack
June 4, 2006
Gasbags, Professional Blatherers, and Michelle Malkin
Yes, I know, I know about Ashcroft['s use of the language of treason in describing critics of the Administration] but I've still to get a real case of Ashcroftitus raising a rash on my brain. In so many places and at so many times, the man has shown himself to be a gasbag. A dangerous one to be sure, but it really isn't in what he says, it is in what he can do that counts.van der Leun calls them "blatherers," but I tend to think of Hot Air.Likewise, it is in what the government can do and not so much in what it says that we need to be ready to be alarmed. Does Anne Coulter command the Justice Department or the National Guard? Does Bill O'Reilly have the power to shut down the presses of the New York Times? I know it is fun to get all hot and bothered by these professional blatherers, but until such time as they meld into the Government, it might be best for every one to take a deep breath and say, with Glinda the Good Witch: "You have no power here. Begone, before somebody drops a house on you."
Posted by Eric at 3:52 PM | TrackBack
June 3, 2006
Dites-Moi: Voyez-Vous, à la Lumière Matinale, ...
Ahem. I said: THE STAR-SPANGLED BANNER IN FRENCH!
FRENCH!!!
OK, go to it, Michelle.
Posted by Eric at 4:55 PM | Comments (1) | TrackBack
"Aryanization" and the Question of German "Coercion"
Living near Karlsruhe, I can also add a certain extra note or two about German attitudes. One of our neighbors is an older woman, who still finds the bombings of the winter/spring 1945 simply beyond the pale, using as an example a raid on a Mercedes factory in Gaggenau/Rastatt. The several hundred of slave laborers who also died in the raid, at least as I recall from the news accounts remembering it 5 decades later, didn't concern her in the least.I accept the commenter's point about my characterization of the "non-coerced" Germans who watched Jews like my great uncle being deported and did nothing. I think the commenter is right about that.My sister-in-law is East German, and when we visited her grandparents in 1991 or so, her grandfather, who had been a soldier in France, found it very unfair that East Germany had been subjected to such clearly undeserved deprivation.
Germans are capable of a style of blind self-pity which is almost sickening at times.
On the other hand, this question about coercion, which does reflect back to the Browning/Goldhagen point, is very, very difficult.
And it is a quote like '...while other non-coerced neighbors stood and watched' which makes me wonder whether Americans are still absolutely clueless about what sort of state people like Hitler or Stalin or Mao built, with what seems to be impunity - or at least, lots and lots of corpses, generally after being worked to death in labor camps (the Nazis' often borrowed from American sources racial fantasies did put them into a special league, but only as a detail in a very broad canvas of death and destruction).
Neither you nor I have any idea what was in the hearts of the watching neighbors, though we would likely agree that all the neighbors, by 1938, would have agreed on the futility of opposing the state at that point, unless they wished to share the fate of the people being taken away in front of them. (And yes, I know there are cases where concerted opposition to Nazi policy did lead to the Nazis being stopped in such cases - obviously, the neighbors were average people, not heroes.)
The Germans were not the deceived victims of the Pope's comforting illusions, but neither were the 'Germans' somehow as 'uncoerced' as you seem to think. (Of course, more were enthusiastic than they would admit afterwards - how large a number is likely unknowable, but it is certainly not insignficant.)
Have you tried to recently exercise 'the right of the people peaceably to assemble, and to petition the Government for a redress of grievances' (say, against torture as American government policy, breaking both national and international laws and treaties) in such public spaces as the sidewalks of New York, during the Republican Convention? I keeping wondering where all those uncoerced police officers (especially the documented provocateurs) came from, violating their oath, as it would seem - especially the uncoerced lying about what they did against their own fellow citizens.
This is actually meant more to question some very comfortable stereotypes people have about evil, where it happens, and why.
I have yet to dive into the comments, some of which are likely better filling sewage pipes, but in ten or twenty years time, after those 'new programs' requiring a set of new American camps to be built are part of old history, you may see your ideas about uncoerced members of a state gone insane in a very different light.
And yes, that America is building camps for some reason which doesn't seem to actually be able to be clearly explained in one or two sentences, should give anyone discussing these themes real pause. These camps are being built by uncoerced workers, and if people are put in them (if it happens - let's just hope it is another 385 million dollar boondoggle, and not a middling effective program), they will pass by uncoerced fellow citizens who will just passively watch them go by to their fate, guarded then by uncoerced people with guns. And yet, somehow, most of those uncoerced Americans are unlikely to have agreed to what was going on if it had been made clear to them beforehand how it would turn out. Some would, of course - personally, I have my doubts that Americans are more than a touch more moral than Germans in 1931 - ask a Muslim or Arabic looking American about what life is like in the U.S. these days - better, ask the NSA, since they likely have a much better handle on those citizens true thoughts expressed in private conversation. That Goldhagen had at least a touch of truth is undisputed - the problem is, in my eyes, it was just a touch. Humans do this to other humans, not merely Nazis or Germans to Jews or Slavs or Gypsies or gay, or people with genetic 'flaws,' or enemies of the state. The story of the Holocaust tends to be a refuge, strangely, for those who insist it is somehow a unique occurence. It wasn't, it isn't, it will never be. Welcome to the human race.
The Pope was a disaster long before he just 'lucked' into the job, like Cheney did. That should say enough about his moral authority right there.
I'll note only one small thing. Any fair account of the responsibility/coercion of ordinary Germans in the 1930s has to take some account of the program called "aryanization," under which non-Jews came into ownership of all of the tens of thousands of Jewish-owned businesses in Germany. (Wikipedia pegs the number of aryanized businesses at 100,000, though I don't know whether that is an entirely accurate figure.) This program reached into every town and village in Germany, and didn't force a non-Jew to do a single thing. Yet every business ended up in non-Jewish hands.
I'm not arguing that taking over your Jewish neighbor or competitor's business was the same thing as driving a gas van or ordering Zyklon B. Obviously they are quite different moral acts.
But on the point we've been discussing -- the degree to which the Nazi Germany of the 1930s was just a "ring of criminals" terrorizing and coercing an innocent Volk, I think the example of "aryanization" shows a broader and more voluntary participation in the oppression of the Jews than any of the pope's comments have implied.
UPDATE: A commenter asks what the camps are that the commenter was referring to. I suspect the commenter was referring to these camps.
Posted by Eric at 10:44 AM | Comments (11) | TrackBack
June 2, 2006
A Brief Glimpse Into Why This Debate About the Pope's Auschwitz Speech Matters
Consider the comment left by Tony of the aptly titled blog "Catholic Pillow Fight". He quotes back to me my characterization of the Pope's "ring of criminals" fantasy as "the distressingly self-deceptive words of a man who continues to indulge a fantasy that a great and noble German Volk was hoodwinked by a small group of bad men and then forced into atrocity at the point of a gun." Tony then says, sarcastically:
Oh, yes. You, many years after the fact, can know the hearts of the entire nation of Germany. We are hearing from a man who lived it.
My reply, in relevant part:
I don't purport to know the hearts of the entire nation of Germany in the 1930s, though I've read a great deal about it. (Have you?)I do, however, claim to know the heart of my grandfather, who was fired from his teaching job in Karlsruhe, Germany, by a non-coerce