Not Matching Up Here

The disconnect between the conservative elite and their popular attack dogs on the issue of judges is rather jarring. Mark Levin thinks that the GOP will gain ground by going after Biden on his Judiciary Committee record. Biden, of course, spearheaded the defeat of Robert Bork’s nomination and has, in the words of Levin, “spent 30-years radicalizing the judiciary” and “promoted extreme activists.”

But to anyone with a brain, being an “extreme activist” is part and parcel of being conservative judge. Conservatives, whose legal mission to overthrow business unfriendly decisions dating back to the 1930s and who invented out of whole cloth an entire legal philosophy to justify it (originalism), are the original judicial activists. Hell, they pride themselves on judicial activism. Federalists in the mold of Rehnquist, are supposed to overthrow as many federal regulations as possible. And yet despite clear evidence that conservative justices are significantly more likely to make activist decisions, the notion of liberal “activist judges” has throughly permeated the public consciousness.

The question is, is Mark Levin genuinely ignorant about judicial activism? Or does he know and simply not care about the truth and instead promotes the opposite of it? Either way, it shows how sucessful the GOP has been at framing the entire judicial question.

You Could Just Ask Obama What He Thinks

Yglesias writes about this a lot, so I’m not breaking any new ground here, but it’s really annoying to read columns like Ruth Marcus’s, where she expects to find in his law school exams and model answers some insight - not into his pedagogy - but into how he approaches policy, or even more bizarrely, how he comes down on certain legal or political questions.

But divining Obama’s legal or political views through his syllabi and test questions is a massively silly task.  I’ve come to believe Stanley Fish that in nearly all cases, the best teachers - especially in basic, introductory classes like the ones Obama taught - are those who simply teach the relevant material in a sympathetic and enlightening way. And from reading Jodi Kantor’s article, as well as the commentary of four law professors on his course materials, it seems like Obama did just that. But that isn’t good enough for Marcus:

Reading them buttressed my confidence in Obama’s capacity to grasp the nuances of any question, no matter how complex. They also underscored my sense that, in the hardest cases, I’m not always sure where Professor Obama, or President Obama for that matter, comes down.

But isn’t that what one would expect from a law professor, especially one who published no legal scholarship? If I wanted to know where Obama came down on the “hardest cases” I could just go to his website or read his speeches. He’s pretty clear about where he stands on just about every major policy (and most legal) issued. Because that’s what presidential candidates do - they say what their positions are. Law professors are supposed to teach the law. And it seems like Obama did just that.

“Consent Searches”

If a cop asks to search your car, are you going to say no? Well, for everyone that isn’t a card carrying ACLU member, the answer is yes.

Steve Chapman has a wonderful column about the scandal that are “consent searches.” Although the Illinois turns up something illegal in only 4 percent of searches (I imagine the rate is similar nationwide), the Supreme Court has refused to rule that there’s a complicit impulsion whenever a police officer asks a citizen to do something - especially something that imperils his rights to privacy.

Although Texas police admitted that the searches were pointless, the fact that consent searches are still allowed - even when there’s no articulable reason for them - just goes to show how screwed up our presumptions are when it comes to police activity. It would be nice if we had a presumption of liberty, not a presumption of police officers doing whatever they want because they feel rules shouldn’t apply to them.

Darfur Thoughts

I think that, among experts of a certain tinge, we’re beginning to see a certain perspective on the conflict become predominant. At this point, the “it’s a genocide, intervene now!” viewpoint of Mia Farrow, Eric Reeves et. al. seems to finally be cracking under both factual and political objections. If you read the Social Science Research Council’s Making Sense of Darfur blog, you’ll see that most of the contributors are very skeptical of the recent ICC indictment of Bashir for genocide. Although they all acknowledge that he’s a bad, murderous dude, many of them are skeptical if such an indictment is really part of a path to peace in what is actually a long term civil conflict.

Alex de Waal, the writer I most trust on Sudanese issues, was seriously unimpressed that the ICC prosecutor managed to accuse the Sudanese president “of the crime for which he is not guilty” (genocide). That’s because despite Bashir’s odious 19 year reign, there is very little evidence that he intended to eliminate the whole of the Fur, Masalit and Zaghawa people. After all, the murders peaked in 2003 and 2004 and, as MSF’s former head helpfully points out, “two million Darfuris have sought refuge around the principal army garrisons of their province…one million of them live in Khartoum.” If what’s going on in Darfur is truly a genocide, then one would imagine these Furs would be faring worse.

Also, de Waal points out that Campo’s indictment doesn’t do justice to what actually happened in Darfur - namely that,  in 2003 and 2004, the Janjaweed killed hundreds of thousands of Darfuri civilians as part of a counter insurgency. Since 2003, 35,000 Darfuris have been killed, and yet the prosecutor bizarrely insists that conditions have actually gotten worse since the international investigation into Darfur, which did not categorize the Sudanese government’s crimes as genocide. Although millions of Darfuris have been displaced since then, I highly doubt that the international community wants to make massive displacement on par with genocide. (Either the US is guilty of genocide in Iraq, or it becomes obvious that Ocampo’s watered down definition isn’t very useful).

But one has to sympathize with the ICC and Ocampo. Genocide isn’t really a neutral description of events, but instead just another way of saying “these guys are really bad!” But people have been fairly aware of the atrocities going down in Darfur since 2003, and at this point, Ocampo’s indictment seems more like a way for the international community to put a fig leaf on its inaction, rather than a manifestation of a neutral pursuit of justice. What’s worrying, however, is that because of it playing fast-and-loose with the term genocide, it will be easier for Bashir to dispute the facts of the indictment, and make justice (or a stop to the war) an even less likely prospect:

Moreno Ocampo’s political misjudgments have made life easier for Bashir and commensurately more difficult for the ICC. By presenting his case in such stark terms, the Prosecutor has made it easy for his critics to dismiss him as ill-informed and driven by a desire for publicity, and has made it harder for the advocates of justice in Darfur to pursue the challenge of calling to account those responsible for crimes no less heinous than genocide.

A Very Good Point

So it turns out that the Alex Kozinski porn stash was a. uncovered by a lawyer with a grudge and b. not all that shocking. Jesse Walker and Wonkette have runs down of the material itself, most of which is pretty tame. Walker also makes the good point that since plenty of judges with strong moral objections to certain material have presided over obscenity cases, there’s really no good reason that a judge who is tolerant of such material can’t preside over a criminal case as well. This entire episode just goes to show the essential prudishness at the heart of American society, and how petty and annoying it is.

It’s also depressing to see that that self-described progressives are using this incident as an opportunity to bash Kozinski, one of the most ardent defenders of free speech on the bench, as some kind of evil, misogynistic conservative.

Celebrities Don’t Go To Jail

R. Kelly has been acquitted. Woah. After reading Josh Levin’s dispatches from the trial for Slate, however, I can’t say I’m too surprised. The prosecution never got the witness herself to testify, the defense got several relatives to say that they didn’t recognize the girl in the infamous video and some of the key prosecution witnesses were clearly extortionists and just all around sleezy characters. So it’s hard to say that justice wasn’t served, seeing that an unavoidable outcome of our adversarial legal system that presumes innocence and gives defendants all sorts of protections is that people who have committed a crime get off. Of course, it sure helps to be rich and famous. Interestingly enough, one of the best meditations on these issues is Alan Dershowitz’s Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case.

Why Do We Have Such Stronger Free Speech Norms?

Adam Liptak has an excellent article comparing America’s approach to free speech to those of Europe and Canada. Basically, despite all of our slipback on other civil liberties issues, we’ve manaaged to maintain a pretty strong norm in favor of freedom of speech. For example, you don’t see people calling for blasphemy laws here as you do in part of Western Europe, and Mark Steyn isn’t facing prosecution in New York City, but Canada. As to why this state of affiars exist, two main reasons come to mind.

1. A much longer tradition of freedom of speech. The first amendment to the Constitution has been exactly that - the first amendment of the constitution - since the 1790s. Very few European countries have real free speech rights that are so old and institutionally set-in-stone. The corollarly to this is that our free speech rights got a big boost in the 20th century, when the Court pretty solidly affirmed that content-based and viewpoint-based restrictions needed to pass the strict scrutiny test, and thus were just about always unconstitutional. The same goes for prior restraint - which the Supreme Court has roundly rejected.

2. I’d also argue that we have strong free speech rights because of the political dynamics at play. Basically, there are elements on both sides of the political spectrum that want to restrict speech. The right wants to restrict speech if it’s not patriotic (flag burning) or “treasonous” (stories about wiretapping in the Times, speech restrictions during wartime etc), while many on the left want to restrict speech if it’s offensive (”hate speech”). So both sides become mutually suspicious of each other’s attempts to restrict free speech, and so a relatively happy equilibrium is maintained.

*3. In the case of Europe, the laws against holocaust denial and Nazi advocacy are pretty self explanatory.

Some People Just Don’t Feel the California Love

Was there a very progressive legal decision that helped a marginalized group in society come closer to achieving full equality and legal dignity recently? Yes there was! And like clockwork, Jeffrey Rosen is here to criticize it:

So what makes the legal reasoning so inflammatory? Most controversially, the Court held that sexual orientation discrimination should be treated just as skeptically as racial discrimination–a conclusion that the U.S. Supreme Court and the other state Supreme Courts have refused to accept. Social conservatives are already invoking contested science to question one of the premises of this conclusion: that sexual orientation, like race, is immutable. “There is no evidence to establish that a homosexual lifestyle is an immutable characteristic such as race,” a lawyer for Advocates for Faith and Freedom told The New York Times. There was no need to open this Pandora’s Box: The Court could have held more modestly that there are no rational reasons for limiting the label “marriage” to straight people and denying it to gays and lesbians.

Rosen’s argument is that, essentially, because conservatives view homosexuality as a lifestyle choice, the California Supreme Court shouldn’t offend them by basing their ruling on the fact that discrimination on basically immutable characteristics like race or sexual orientation should have strict scrutiny applied to it. Rosen points out that the Federal Supreme Court and other courts haven’t adopted this line of reasoning, but I suspect they will eventually, as society gets farther and farther away from viewing homosexuality as some sort of mental illness. The second poor argument is that because they ruled to apply strict scrutiny, it will galvanize opponents of gay marriage more than if they had used a more narrow criteria. This, quite frankly, is just BS. Opponents of gay marriage will not be mollified by whatever legal reasoning the Court takes - the reason they think gay marriage is wrong is because they view the “homosexual lifestyle” as sinful. Strict vs moderate scrutiny doesn’t matter to those people.

Rosen, however, argues that reasoning does matter by making a poor analogy to Roe v Wade, “Because Roe was so poorly reasoned, pro-life activists found it easier to rally undecided voters under the guise of attacking judicial usurpation.” We can table this statement for a while, but the analogy between Roe and the California decision is just wrong. The idea that some unelected judges are usurping the will of the people just isn’t true. Once again, all seven of the judges on the State Supreme Court were elected by overwhelmingly majorities, the California state legislature twice passed bills to recognize same-sex marriage, and when Schwarzenegger vetoed them, he explicitly said that he wanted the Court to rule or some sort of referendum to pass. And now, he says that he doesn’t support a referendum to overturn the Court and that he supports the decision. Also, the legal reasoning wasn’t all that out-of-left field, the application of strict scrutiny was perfectly within the realm of California’s constitution, which “treats sexual orientation as a suspect classification” so that any discrimination must be reviewed under strict scrutiny.

Rosen further claims that the decision will be inflammatory because “Judicial decisions that blithely pronounce the basic positions of major political parties to be unconstitutional haven’t fared well in American history, as the Dred Scott decision shows.” As evidence, he points to the fact that Obama, McCain and Clinton all support civil unions. This argument may be relevant if the Federal Supreme Court had issued this ruling, but they didn’t. The California Supreme Court did, and this decision was well within the political and judicial mainstream for the state. All of this just begs the question, is there any progressive legal decision that Jeffrey Rosen likes?

If there is any backlash, it will be because gay marriage opponents oppose gay marriage, not because they’re ticked off about the reasoning.

What? Expansive Law Enforcement Power Abused? No Way!

There are a lot of problems with the Bush administration’s argument that civil liberties have to be restricted for the duration of the War on Terror.  The first is that the War on Terror is necessarily endless; how can we ever say it will be over?  The second problem is related to the first, that because it’s really unclear who exactly the enemy is and because governments tend to use their power as expansively as possible, it’s inevitable that there will be abuses of these new powers.  Just think, if you’re an FBI agent, and you have this sweet new authorization to get warrants with less stringent judicial oversight, wouldn’t you try to use that power as much as possible?  Well, they have been:

The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday.

The episode was outlined in a Justice Department report that concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented “national security letters” from 2003 to 2006, after which changes were put in place that the report called sound…

A report a year ago by the Justice Department’s inspector general disclosed that abuses involving national security letters had occurred from 2003 through 2005 and helped provoke the changes. But the report makes it clear that the abuses persisted in 2006 and disclosed that 60 percent of the nearly 50,000 security letters issued that year by the FBI targeted Americans…

In total, Fine said, the FBI issued almost 200,000 national security letters from 2003 through 2006, and they were used in a third of all FBI national security and computer probes during that time. Fine said his investigators have identified hundreds of possible violations of laws or internal guidelines in the use of the letters, including cases in which FBI agents made improper requests, collected more data than they were allowed to, or did not have proper authorization to proceed with the case.

Of course this happened, so is the nature of giving law enforcement agencies the power to do anything - they’ll always use it to the max.  But what exactly is a National Security Letter, and why should you care?  Well, an NSL is a authorization approved by the head of the FBI to “demand certain types of personal data, such as telephone, e-mail and financial records, while barring the recipient from disclosing that the information was requested or supplied.”  So basically, you’re shit gets searched and you can’t tell a lawyer about it.  Just for a little refresher, the 4th amendment says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So we have the FBI doing searches of the “effects” of US citizens - without warrants or probable cause.  There’s also the implicit violation of free speech, namely that you can’t tell anyone about the search.  What makes the FBI’s massive abuse of National Security Letters even more galling is why they used NSLs. They used them because the Foreign Intelligence Surveillance Court wouldn’t authorize their warrants: “The court had concluded “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights,”  This is just blatant.

To give some background, the FISA court was set up in 1978 to let intelligence agencies do surveillance and spywork with some judicial oversight, but less than accorded to a regular criminal case. Some of the protections afforded to law enforcement in the FISA court are a 72 hour window to get a warrant after surveillance starts and a lower level of proof to get a the warrant itself - all the government has to do is to prove that the subject of surveillance is an “agent of a foreign power.”  Between 1978 and 1994, the court approved 13,995 out of 14000 warrant requests.  So if this court, which is basically an American Star Chamber, wouldn’t approve a warrant for the FBI, then they probably shouldn’t have gotten them in the first place.

The FBI’s justification for circumventing the FISA court would be hilarious if it weren’t so disturbing:  the FBI’s general counsel “told investigators it was appropriate to issue the letters in such cases because she disagreed with the court’s conclusions.”  Last time I checked, the way the legal system is supposed to work is that law enforcement agents have to listen to a court’s decision.  Otherwise, why do we even have courts to oversee law enforcement activity?

The Post’s article indicates that the FBI has been actually cleaning up since 2006, when these massive abuses became apparent, but I doubt that we’ll ever see any real, voluntary restriction on the use of these expansive powers until Congress and Courts actually take some strong steps to restore civil protections.

Defining Dumb Down

It really is a sign of the times that in a list of the “Top Ten Dumbest Bush administration legal arguments of 2007″ that “the vice president’s office isn’t part of the Executive Branch” is only number eight.

The Dubai Justice System

John Aravosis, whilst linking to the horrible, sad story of a French teenager raped in Dubai who was forced to leave due to him possibly being charged of “homosexual activity”, brings up the Dubai Ports fiasco, or as he puts it, “that little Middle Eastern paradise that Bush is so happy to sell our ports too.”

The Dubai Ports snafu was a perfect constellation of unthinking stupidity on all sides. From the right, unthinking jingoism, and from (some parts of) the left, unthinking anti-Bush sentiment (allow me to be very clear that anti-Bush is certainly the right presumption in all cases, not necessarily the right final stance) collided to torpedo a perfectly legitimate deal for no other reason than “A-RABS ARE SCARY! BUSH BE IS TEH EVEL!”

But back to Aravosis. I know his post isn’t about our relationships with Dubai and other sundry countries, but what does he suppose we do? Say that companies are only allowed to buy assets and invest in the US if they perfect legal systems> I guess Aravosis would want to prevent China, Russia, Saudi Arabia and a whole host of illiberal states that lack rigorous due process from investing their substantial dollar-denominated assets here. To say that such a policy would be misguided almost seems like an afterthought.

The Endless and Expansive War on Terror

One of the best reasons why the War on Terror mindset is such a poor one is that there’s no defined end point, no single enemy to defeat, no one entity to make surrender. And so, we give more power to the government in war time, as we’ve always done, but this time it’s not clear if the government will ever give up that power. And, at the same time, not only will exceptional situation become permanent, but it will also expand outwards, with the government using power given to it to prevent terrorism and instead using it to…prosecute gang members:

Jurors for the first time found a defendant guilty under New York’s statute, and he did not fit the stereotype of a terrorist. The defendant, Edgar Morales, is a 25-year-old recreational soccer player and gang member who fatally shot a 10-year-old girl and wounded a second man outside a christening party in 2002.

Even if the prosecutor is right, and what this street gang was doing was equivalent to terrorism, there’s still a basic dishonesty in using anti-terrorism laws to prosecute street crimes. The anti-terror laws were clearly designed to make the government more able to punish and prosecute foreign threats who were trying to commit large scale crimes against the whole nation of the US, which street crime doesn’t fall under. This application of anti-terror laws sidesteps an important debate that should occur among our elected representatives, not prosecutors. Do we consider street crime to be on the same level as terrorism, do we want to similarly give the government power in an effort to prevent street crime as we do with terrorism?

Another problem with the wide use of anti-terror legislation is that it further entrenches what should be “exceptional” measures into our justice system. Let’s say the political environment changes so that the scaling back of anti-terror government powers is possible. In a world where there’s widespread use of anti-terror laws for crimes that aren’t terrorism, there will another strong constituency who want to keep these measures on the books. We could imagine an organization of DAs making ads saying “thanks to this anti-terror measure, we’ve been able to increase our prosecution of gangs by 31%.” This will make returning to our pre-WOT legal system even more difficult.

Today’s Sign of the Non-Apocalypse

Well, it’s more a sign of the Apocalypse that is the Bush administration running out of steam as well as just how bad it’s been. A headline in today’s online Washington Post: “Mukasey Vows Allegiance to Law”

Let’s over that again.  The Washington Post found it newsworthy to report than in confirmation testimony to be the chief law enforcement officer of the United States, the nominee vowed allegiance to uphold and respect the laws of the United States.  And while I’m glad that we have an AG who values the rule of law, it’s pretty distressing that I’m thankful for this.

The Court, The Right, The Left

Scott Lemieux comments on Jeffrey Rosen’s piece on Justice Stevens, noting that Stevens — who was appointed by Ford — is, in temperament, a Rockefeller Republican/moderate, is now a liberal compared to the likes of Roberts, Alito, Scalia and Thomas:

It is a measure of how not only how much the Court has changed but how much the Republican Party has changed that Rockefeller Republicans now seem like liberals on the Supreme Court. There’s no Brennan, Marshall or Douglas on the modern Court. It is a measure of how not only how much the Court has changed but how much the Republican Party has changed that Rockefeller Republicans now seem like liberals on the Supreme Court. There’s no Brennan, Marshall or Douglas on the modern Court. There have been some liberal advances, but that have been mostly modest expansions of existing doctrines agreeable to moderate northern Republicans…

Well sure, the court has moved to the right, if your frame of reference is the last 10 or so years. What Scott is excluding is that from the Warren courts through the early 80s, there were huge advancements for liberals. After decades, if not hundreds of years, of judicial stasis, Warren carved out brave new doctrines, systems and rights under a liberal judicial framework. But the Court is more influenced by Marbury than Trotsky, so we shouldn’t expect it to be in a state of near-permanent liberal revolution. So yes, the conservative wing is hallowing out and poking holes in some cherished bits of liberal jurisprudence, but there is little indication that a wholesale overturning of Roe or Miranda is going to happen soon.

It’s also interesting that the jurisprudential revolution conservatives actually tried to foment is now in the dustbin of failed ideas — the overturning of the New Deal regulatory state. What scared many about Thomas wasn’t so much his social conservatism or overly doctrinaire originalism, but his admiration for Richard Epstein. The closest the”constitution in exil”e folks have gotten was Lopez and Morrison, and while they addressed the commerce clause, there were more federalism that regulation cases. The court has backslided on the Rehnquist-O’Connor federalism mini-revolution with Raich and Kelo while it’s unlikely Kennedy would sign on for a major deregulatory decision. The New Deal, at least on a legal level, appears to remain intact.

So yes, the court is getting more conservative and it’s probably tracking the direction of America’s politics, except with maybe a 15-25 year delay, because the court is an august institution. But the court is getting conservative because the liberals won. The right wingers on the court are playing on liberal ground, and so maybe liberals should get used to and welcome becoming the new conservatives. It’s always nice to switch things up for a change.

George Will, I Luuuuuuuuuuuuuv U!

Yeah, the bow tie himself is still going strong. Check out his column on questions to ask Mukasey at his AG confirmation hearings. Here’s a taste:

– The Bush administration says “the long war” — the war on terrorism — is a perpetual emergency that will last for generations. Waged against us largely by non-state actors, it will not end with a legally clarifying and definitive surrender. The administration regards America as a battlefield, on which even an American citizen can be seized as an “enemy combatant” and detained indefinitely. You ruled that presidents have this power, but you were reversed on appeal. What do you think was the flaw in the reasoning of the court that reversed you?

While it’s encouraging that principled conservatives like Will are comrades in the struggle against unchecked executive power and the abrogation of centuries old constitutional principles, it’s all for naught. Do you really think that Clinton or Obama will make it a priority of their administration to reduce the power that Bush/Cheney so considerately collected for them? History would teach otherwise. Clinton especially is a big fan of “flexibility” in the president’s handling of foreign affairs — which, interpreted broadly, is the main rationale for many of Executive power grabs of the last 6.5 years.. And as Will pointed out, her husband had some issues with Congress and legal scholars over his own interpretation of the President’s ability to control the military. To riff on Lord Keynes, “in the long run, executive power always increases”

The Conservative Court…Umm, Are We Supposed to be Surprised?

Cass Sunstein provides a brilliant piece of reporting in TAP — the Court is much farther to the right than it was 25 years ago. In 1980, Stevens was the median vote, and now he’s the farthest to the left. More importantly, Scalia and Thomas are activist right wing judges, in the sense that that they have a coherent constitutional vision that they want to move the court towards. For liberals like Stevens or Breyer, their mission is trying to preserve the progress of the Warren Court against the conservative assault. And while this is a worrying trend for liberals…there isn’t a whole lot to complain about or really anything liberals can do. It would make sense that court movement would lag behind political movement, and the story of the last 25 years is in the rise of the Right.

Starting in the early 80s, politics moved far to the right with movement conservatism coming into prominence. But with court appointments being lifetime, conservatives couldn’t get installed in a strong position in the Court until a few years ago. So, the conservative legal architecture that has been building up since the late 70s is now firmly established in the court. I don’t want to sound fatalistic, but if any other result were to have occurred, it would have been strange. Isn’t the court, in some sense, supposed to reflect the general politics percolating in the public? While it may be distressing for liberal activists that activist liberalism isn’t a presence in the Court, it isn’t that big a force in the public as a whole.

There’s also the slightly dialectical flavor to Sunstein’s analysis. Sure, Stevens and Breyer are mostly “conservative” in their caution and respect for (liberal) precedent, but that’s because the Warren court and its successors pushed so far leftward, so quickly, that one can be a liberal and merely respect precedent. The Court isn’t a Hegelian machine, it doesn’t have to constantly be composed of opposing sides pushing against each other toward some compromise. The activist liberalism of Warren or Marshall is now embedded into the court’s decision making. And that still means something.