Fourth Amendment Doesn't Protect Spit on the Sidewalk:
Facts: Rape suspect walking on a street spits on the sidewalk. An investigator is following the suspect, and he collects the spit; a DNA test proves a match. Holding: No Fourth Amendment violation. Analysis:
[A]lthough the defendant had a reasonable expectation of privacy in his saliva (and other bodily fluids), see Matter of Lavigne, 418 Mass. 831, 835-836, 641 N.E.2d 1328 (1994); Jansen, petitioner, 444 Mass. 112, 120-121, 826 N.E.2d 186 (2005), when he expectorated on to a public street and did not retrieve the fluid, he voluntarily abandoned that protection; he assumed the risk of the public witnessing his action and thereafter taking possession of his bodily fluids. See Commonwealth v. Ewing, 67 Mass.App.Ct. 531, 540, 854 N.E.2d 993 (no expectation of privacy in cigarette butts abandoned as trash in interview room), further appellate review granted, 447 Mass. 1113, 857 N.E.2d 1094 (2006). See also Commonwealth v. Pratt, 407 Mass. 647, 660-661, 555 N.E.2d 559 (1990) (observations and inspections occurring after items deposited in public places generally fail to intrude upon reasonable expectation of privacy); Commonwealth v. Nutile, 31 Mass.App.Ct. 614, 619, 582 N.E.2d 547 (1991) (no reasonable expectation of privacy in drugs voluntarily thrown from vehicle); Commonwealth v. Wedderburn, 36 Mass.App.Ct. 558, 564, 633 N.E.2d 1058 (1994) (no reasonable expectation of privacy in drugs dropped on ground during police surveillance).
Here, the motion judge found that the location where the defendant spat was a public street, a place freely accessible to others. See Krisco Corp., 421 Mass. at 42-44, 653 N.E.2d 579. See also Commonwealth v. Pratt, supra (no reasonable expectation of privacy in trash left on curb); Commonwealth v. Bloom, 18 Mass.App.Ct. 951, 952, 468 N.E.2d 667 (1984) (defendant had no reasonable expectation of privacy in open area of public restroom). Moreover, there is no indication that the defendant took affirmative action to recover the saliva once it had left his mouth. In Bly, supra at 490-491, 862 N.E.2d 341, the defendant did not attempt to retrieve the cigarette butts when leaving the interview room, nor did he request to go back and collect them. The court held that Bly's “wholesale failure to manifest any expectation of privacy in the items whatsoever” compelled the “conclusion that [he] had no subjective expectation of privacy.” Id. at 491, 862 N.E.2d 341. See Ewing, supra (defendant made no attempt to take cigarette butts when leaving interview room). Contrast Krisco Corp., supra at 45, 653 N.E.2d 579 (discussing affirmative steps taken by defendant to protect dumpster from public access). Thus, where the defendant here voluntarily abandoned his saliva onto a public street, the investigator (whether deemed to be functioning in a private capacity or as a State actor) did not infringe on any reasonable expectation of privacy when he recovered the spittle from the street.
Commonwealth v. Cabral, 69 Mass.App.Ct. 68, 2007 WL 1413143 (Mass. App. Ct. May 16, 2007).
UPDATE: Elizabeth Joh had an interesting article on this very topic in the Northwestern University Law Review. You can download it here.
Rick Hasen investigates the strange disappearance of the American Center for Voting Rights. As Hasen recounts, ACVR appears to have been a fly-by-night election reform organization that pushed voter ID laws in order to benefit Republicans.
In addition to exposing ACVR, Hasen argues that voter identification laws are unnecessary because polling-place voter fraud is rare and unlikely to affect many, if any, election results. While documented cases of polling place fraud are few and far between, Hasen acknowledges that documented cases of absentee-ballot voter fraud are more common. Yet some voter ID proposals would exempt those who cast absentee ballots. Another possibility, of course, would be to require IDs for both polling place and absentee voting.
No doubt some form their views on various election law questions, such as whether to require IDs to vote, whether to deny felons the franchise, or whether to facilitate early voting, based upon their expected practical consequences. Political partisans seek election laws that will benefit their party (as it appears ACVR did).
One can also approach these questions from the standpoint of what is, or should be, required of citizens, and what (if anything) should disqualify citizens from participating in elections. For instance, one may believe that an ID requirement is not a serious imposition on voters when IDs are required for everything from getting on a plane to renting a video. One might also believe that an ID requirement, especially if applied to absentee ballots, may help ensure future election integrity and (no less important) help maintain the appearance of election integrity. So, while some may support voter ID laws for partisan reasons, this does not (yet) convince me that voter ID laws are inherently unreasonable or unwise.
Today the U.S. Court of Appeals for the Sixth Circuit issued two unanimous opinions in habeas cases.
In Durr v. Mitchell, the Court considered and rejected death row inmate Darryl Durr's appeal of the denial of his petition for a writ of habeas corpus. An Ohio jury had sentenced Durr to death for the 1988 rape, kidnapping and murder of Angel Vincent O'Nan. Judge Suhrheinrich wrote for the panel, and Judge Cole wrote a separate concurring opinion.
In Bachman v. Bagley, another panel affirmed the district court's conclusion that Ronald Dale Bachman's habeas petition was untimely. Bachman, who was convicted in 1995 on multiple charges of rape and related crimes for the repeated sexual assault of his own daughter, had argued unsuccessfully that his designation as a "sexual predator" in 2004 should reopen the statute of limitations to challenge his original conviction.
There was not nearly so much unanimity in United States v. Arnold, in which a divided Sixth Circuit, sitting en banc, divided over Joseph Arnold's felon-in-possession of a firearm conviction. Judge Sutton wrote the opinion for the court upholding the conviction, joined by Chief Judge Boggs and Judges Batchelder, Daughtery, Rogers, Cook, and McKeague. Judges Clay and Griffin each authored opinions concurring in part and dissenting in part. Judge Moore dissented, joined by Judges Martin, Cole, and Gilman.
Did the FY 2004 National Defense Authorization Act authorize the Defense Department to temporarily curtail the collective bargaining rights of the Department's civilian employees? Yes. At least that was the conclusion reached by a divided panel of the U.S. Court of Appeals for the D.C. Circuit in American Federation of Government Employees v. Gates.
By its terms, the Act
authorizes DoD to curtail collective bargaining through November 2009. But after November 2009, with certain specified exceptions, DoD again must ensure collective bargaining consistent with the Civil Service Reform Act of 1978.
Judge Brett Kavanaugh wrote the opinion of the court. he was joined by Senior Judge Stephen Williams. Judge David Tatel dissented.
Former National Security Advisor Sandy Berger has agreed to forfeit his law license, according to this report. As I've noted before, we still do not know precisely what documents Berger burgled from the National Archives. It also appears Berger may have been eager to strike a deal over his bar license to avoid further scrutiny: "In giving up his license, Mr. Berger avoids being cross-examined by the Board on Bar Counsel, where he risked further disclosure of specific details of his theft." It also does not seem like that great a sacrifice for, as Berger commmented, he has not practiced law in 15 years. (LvIP)
Benjamin Wittes is uncompromising in his take on James Comey's testimony.
At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.
The much-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.
Meanwhile, the number of GOP Senators who have said publicly AG Gonzales should resign is up to five (Coleman, Hagel, Roberts, Specter, Coburn).
UPDATE: When I first posted this I had a momentary brain leak and wrote "Philip" Comey instead of James. It's fixed now.
MORE IMPORTANT UPDATE: The number of GOP Senators supporting a Gonzales exit is apparently up to eleven (and as Nigel Tufnel explained, eleven provides that extra push over the clip.
I noticed with great interest your Volokh post on the ethnic background of some of the Arabs in the Galilee. I have been writing on ethnicity and minority rights in the Middle East for the Wall Street Journal and the Middle East Quarterly for several years....
In response to your query : I would say that you touched on a very important, but neglected story in Middle Eastern history. In 1830, following the French colonial takeover of Algeria, the Algerian-Sufi rebel leader Abdel Qader who lost his battle with the French, made a deal with the Ottomans to move (along with his followers) to the Galilee of what was then called "Syria." There is good archival material in France showing how many of the Arabs of the Galilee are descendents of Abdel Qader's followers. Some of the Arabs with African features may be of Algerian Tuareg (southern Algerian) ancestry. There was also immigration in the early 20th-century of Chadian Muslims from Chad to Jerusalem who stopped in Jerusalem (or al-Quds as they would term it) after Hadj to Mecca. It is possible that some of these clans moved outward to the Galil.
Kmiec v. Lederman on Comey Testimony:
In today's Washington Post, Doug Kmiec has an op-ed arguing that the Comey testimony isn't that much of a big deal, and in particular, it's no Watergate; over at Balkinization, Marty Lederman has a response arguing that Kmiec is wrong to minimize the importance of the story.
In my view, Kmiec is plainly right that nothing in Comey's testimony suggests anything like another Watergate. Consider how little we know about the facts. We don't know what the program was that Comey and Ashcroft wouldn't authorize, or why they wouldn't authorize it. And as far as I can tell, there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty or participated in some kind of cover-up. (Note that when Comey met with the President one-on-one, according to his testimony, the President backed him.)
At the same time, the test for whether the Comey story deserves attention surely can't be whether it's as bad as Watergate. I'm sure there's room in there for political news that doesn't quite hit Watergate break-in and Nixonian cover-up levels. And just as we don't know the facts to make the Watergate comparison stick, we also don't know the facts to suggest, as Kmiec does, that this was just some sort of routine disagreement within the Executive branch. We do know that there was something going on that led the Attorney General, Deputy Attorney General, FBI director, Head of OLC, and some of their leading staffers — which, we have reason to believe, was everyone in DOJ and the FBI who actually knew of the facts of what was happening — to be ready to resign. Kmiec doesn't know what it was, and neither do we, but it seems odd to imagine it must not have been over something very important.
Oh, and on the technical questions in Marty's post, Marty seems right to me — in particular, I think he's very likely right that the point of the AG's signature was to persuade the telecom companies to go along. I assume the lawyers for the ISPs and telcos insisted on some sort of legal process to give the government access to their networks, and the 45-day authorizations signed by the President and the AG were the process that the telcos and ISPs accepted.
Any discussion of sport and law that grasps for comprehensiveness should consider what the two fields have to teach one another. The premise of such a consideration is, of course, that the two fields are separate, a claim that appears to grow ever more dubious. Rarely if ever will a season of professional sports pass by without the appearance of criminal allegations, contractual disputes, accusations of assault, claims of self-defense, defense of teammates, &c.
Witness this week’s debate of rules versus standards in the Suns-Spurs series, in which David Stern vigorously defended the suspension of two of Phoenix’s more important players for leaving their bench during an altercation. After parsing what an altercation was (do handbags count?), considering what the bench area is (they took just a few steps), and debating what leaving entails (one player claimed he was just heading to the scorer’s table to check in), the league disqualified Stoudemire and Diaw from the subsequent game, which Phoenix duly lost.
Stern abdicated responsibility for the judgment, claiming that the rule is clear. Of course, as Bill Simmons has pointed out, this position ignores the league’s responsibility for the rule in the first place. And while rules are always easier to administer than standards, one feels compelled to ask Mr. Stern whether the league and its employees receive generous compensation precisely because they are expected to make the difficult decisions. Perhaps there’s a lesson here that soccer may not prosper from more rules and should instead leave a decent amount of discretion in the hands of its officials.
If the path of the law has anything to teach sports, it might be to turn around. Sports appear to be following legal fields such as corporate law and securities regulation along an unswerving route towards ever-greater regulation. Sarbanes-Oxley and new investment company rules have recently added significant layers of regulation to the management of public corporations and mutual funds. Similarly, American sports have just added new rules on such critical issues as what players can wear off the court. Things certainly appear to have gone too far when the FIFA’s rules manual now includes this helpful interpretive guide:
Perhaps we need to institute a pay-as-you-go requirement, which would permit new rules in sports only when a corresponding number of existing ones have been retired.
I wonder, though, whether this is another area of cultural divergence. In sports such as soccer and rugby, in which the game is intended to be free-flowing with relatively few mandated stoppages, the addition of rules is antithetical to the style of the sport. In baseball and football, however, aficionados often take great delight in knowing the most arcane rules of interpretation. Since those games stop every few seconds anyway, their overall aesthetic is not significantly altered by adding new rules — the mastery of which only serves to enhance the sense of expertise its fans feel.
Perhaps, perhaps not. It just reminds me of a uniquely American trait to scientificalize things where possible. E.g., in the British Isles, someone who has a headache will typically ask for a “tablet”; in the United States, patients will consider the merits of acetaminophen, ibuprofen, naproxen, &c.
What, then, lies ahead for the study of sports and the law? One of the biggest questions that arises whenever a new proposal emerges is “what will this do?” So perhaps the future of academic inquiry in this area will involve the increasing use of econometric and statistical analyses, such as the much-discussedstudy of NBA referees’ own-race biases by Justin Wolfers.
For my own part, I’d enjoy looking into the handball rule. Players everywhere seem to believe that the offense has two, independent elements: a subjective scienter requirement plus an objective notion of benefit. Whenever the ball actually hits players’ hands, then, they invariably claim either that they did not intend to do it, or that they did not actually get any advantage from it, depending on which account the facts seem most likely to support. Just like the good lawyers and politicians they are, handballers strive mightily to massage away the bad facts.
The "Hate Crimes" bill currently moving through Congress involves an unwise, and arguably unconstitutional expansion of federal criminal jurisdiction. But even at the state or local level, hate crimes are a bad idea. The whole debate of whether homosexuals should be included in hate crimes statutes is but one example of how hate crimes statutes undermine the principle of equal protection of the laws, by encouraging fights over whether some groups are or are not deserving of unequal, special protection.
The best argument for hate crimes laws is that a hate crime causes more harm than an ordinary crime, because it causes many other people to fear being victimized. This is true for some hate crimes (e.g., public vandalism of a synagogue), but certainly not all of them (e.g., a dispute between neighbors in which an epithet is used). Moreover, there are plenty of ordinary crimes (such as highly-publicized serial attacks on random victims), which also cause fear in many people besides the immediate victims. I suggest that judicial sentencing discretion allows for appropriate punishment for crimes which have unusually large secondary impacts.
As long as hate crimes statutes stay on the books, every hate crime statute should include a provision providing for extra punishment for hate crime hoaxes. (Above the level of punishment for ordinary hoaxes about non-existent crimes.) Just as a hate crime may cause heightened community fear, so does a hate crime hoax.
All the above points are elaborated in an Issue Paper I wrote for the Independence Institute.
Contingent Fee arrangements for government lawyers:
Yesterday President Bush issued an Executive Order banning contingent fee arrangements for private attorneys who are hired to represent the government. The order is long overdue. Given that Senator Clinton's brother was the beneficiary of a manifestly corrupt government contingent fee, there is a risk that President Bush's Order might be overturned by a future President. Given the avowed determination of both parties in Congress to clean up government corruption, a bill to outlaw public contingent fees ought to attract wide bipartisan support.
In an Issue Backgrounder for the Independence Institute, I suggested that states should also consider enacting similar bans. At the very least, states should impose some sort of hourly-rate caps on contingent fees, to prevent politically-connected attorneys from receiving enormous windfalls for performing a trivial amount of legal work.
Defendant Acquitted in Child Pornography Case:
In federal district court in Minnesota, a defendant was acquitted by a jury earlier this week in a case involving child pornography charges. As often happens in such cases, the forensics was everything -- and it looks like the jury had very legitimate doubt that the defendant ever knew of (and thus ever possessed) the images. There's also a U.S. Attorney-purge angle to the story, for those that are interested. Details in the link. Hat tip: Victor Steinbok.
I would like to join David Bernstein in commending Bryan Caplan's new book, The Myth of the Rational Voter. It is the most important work on political ignorance in at least a decade, and possibly longer.
Previous scholars, including myself (e.g. here and here), have explored the deleterious consequences of the average citizen's massive ignorance about politics and public policy. Since the 1950s, economists and political scientists have known that it is actually rational for voters to be ignorant, because the chance that any one voter will have a significant impact on the outcome of an election is infinitesmally small. There is little incentive to spend time and effort acquiring knowledge about politics that won't make any difference to political outcomes anyway.
Bryan, however, goes beyond the standard rational ignorance analysis. He emphasizes that it is rational for voters to not only learn very little about politics, but to do a poor job of evaluating the information they do have. Good analysis of political information - like learning the information in the first place - requires considerable time and effort that rationally ignorant voters have little incentive to undertake. Instead, voters are likely to fall prey to systematic errors in considering political information. As Bryan shows in detail, this helps explain why the majority of voters routinely fall prey to gross fallacies in their analysis of public policy - such as the belief that protectionism helps the overall economy; that the rise of modern technology is a major cause of longterm unemployment; and that foreigners are beggaring the American economy (all of these are actual examples from the book).
Because there is so little incentive to acquire and analyze political information to become a "better" voter, most of those citizens who do invest in political knowledge are likely to do so for other reasons. These include reinforcing their preexisting biases and prejudices, using politics as "entertainment" (much in the same way that sports fans acquire knowledge about their favorite teams for similar reasons), and signaling membership in a social group. As Bryan's work suggests (and I discuss in some detail in this article), such motives for acquiring information are extremely conducive to biased and irrational evaluation of the knowledge gained. Bryan calls this kind of systematically biased thinking "rational irrationality." The title of the book is actually slightly misleading. Bryan is not arguing that voters are stupid or irrational. Rather, he contends that it is actually rational for the individual voter to engage in biased and severely flawed evaluation of public policy. Unfortunately, behavior that is rational for individuals can lead to very harmful collective outcomes.
I do have a few disagreements with Bryan's analysis. In particular, I am skeptical of his argument that transferring more political power to knowledgeable experts is a good solution to the ignorance of the average voter. Ironically, the libertarian Caplan here makes the same kind of argument for increasing the power of experts as liberal Supreme Court Justice Stephen Breyer in his 1993 book Breaking the Vicious Circle. Anticipating Caplan, Breyer argued that the ignorance and bias of voters justifies transferring power over regulatory policy to "nonpolitical" expert bureaucrats. I have serious doubts about both Bryan's and Breyer's paeans to expertise.
Be that as it may, Bryan's book is a must-read for anyone even remotely interested in democratic theory and political participation.
CONFLICT OF INTEREST WATCH: Bryan and I are collaborating on a related project.
UPDATE: To avoid misunderstanding, I should note that Bryan also argues that voter ignorance and irrationality justify limiting the size and scope of government in order to leave more decisions in the hands of the free market and civil society (where incentives for rational information acquisition and evaluation are generally better). I have made the same argument in my own works linked in the post. However, this argument is in some tension with Bryan's simultaneous claim that the deficiencies of voters should be addressed by transferring more power to experts.
Brief Bleg:
Sorry to bug readers with this, but I'm trying to hunt down copies of the briefs filed in the D.C. Circuit's Guantanamo Bay cases argued on Tuesday, Bismullah v. Gates, 06-1197, and Parhat, et al. v. Gates, 06-1397. (Unfortunately, the briefs aren't on PACER. Details on the cases here.) If you have an electronic copy or have links to posted copies, I'd really appreciate it if you would post the link or e-mail a copy to orinkerr [at] yahoo.com. Many thanks.
Blog Rolls:
How much attention do blog readers give to blog rolls these days? It used to be that blog rolls (the list of linked blogs down the side of the page) were really important. I have the vague impression that they no longer matter as much as they used to. Do you agree? If there has been a change, why has it happened?
Re-Entering the Legal Profession?:
Over at The Conglomerate, Christine Hurt has an interesting post -- with a good question -- about re-entering the legal profession after years away.
"There Will Be No Further Industrial Revolution in the Cycles of Our Western Civilization":
Sasha recommended to me Jean Gimpel's The Medieval Machine, which is indeed a fascinating history of the Medieval Industrial Revolution. Gimpel's claim is that the Middle Ages, especially from the 11th to the 13th centuries were — despite their reputation — a time of great innovation in a wide range of fields: the harnessing of water and wind power, increased efficiency in agriculture and in use of draft animals (especially horses), the invention of clocks, eyeglasses, and other important tools, and more. Very interesting stuff, and seems quite persuasive.
But Gimpel also draws analogies between his time (the book was first published in 1976, but then revised in 1988) and the Middle Ages — and, boy, are they pessimistic. Some of his specific criticisms of then-modern cultural attitudes toward technology and innovation seem generally apt, but consider the bottom lines, from the January 1988 Preface (one paragraph break added):
We are witnessing a sharp arrest in technological impetus, save in the military field: it was in the declining Middle Ages that the cannon was developed. Innovations — that is, inventions that have been financed, tested and made commercially available — are few and far between, a fact particularly remarkable in the pharmaceutical industry. Even computers have not spread into every home in the country, as was forecast. Like every previous civilization, we have reached a plateau.
The main purpose of this study is to examine closely, and with new perspectives, the industrial life and institutions of the Middle Ages, and the genius of their inventinveness. Comparisons with our own society will be apparent throughout, and a detailed study of parallels between the two great inventive eras, medieval and modern, will be found in the epilogue....
[But] I must point out one alarming contrast. The economic depression that struck Europe in the fourteenth century was followed ultimately by economic and technological recovery.
But the depression we have moved into will have no end. We can anticipate centuries of decline and exhaustion. There will be no further industrial revolution in the cycles of our Western civilization.
Hmm. I surely can't promise unlimited future technological growth; one has to be hesitant in making predictions like that. But Gimpel seems to have no such hesitation — "the depression we have moved into will have no end." "There will be no further industrial revolution in the cycles of our Western civilization."
Looking even at the modest span of time from 1976 and 1988 to the present, that sort of confidence in technological stagnation seems pretty hard to swallow. Perhaps the English (and in some measure American) economic doldrums of the 1970s left a sour taste in Gimpel's mouth; yet it seems a mistake to judge the technological future of an entire civilization based on sad interludes such as those.
Close and narrowing vote on gay marriage coming in Massachusetts:
As of today, gay couples have been marrying in Massachusetts for three years. In each state legislative session since then, there's been an effort to ban gay marriage by constitutional amendment. Initially there was strong legislative opposition to gay marriages, with perhaps 3/5 of the state's 200 house and senate members supporting some form of ban (some wanted to ban gay marriage and civil unions, others just gay marriage).
But opposition to gay marriage has dwindled every year as anti-gay marriage legislators have been defeated in elections and as others have become convinced that recognizing gay unions hasn't hurt anyone. For example, the Republican senate minority leader and co-sponsor of a state constitutional ban changed his mind and opposed the amendment he had previously sponsored. “Gay marriage has begun and life has not changed for the citizens of the commonwealth,” he told the New York Times in 2005, “with the exception of those who can now marry who could not before.”
Nevertheless, the effort to prevent gay couples from marrying continues. The latest strategy, which started with voter petitions, requires just one fourth (50) of the state's legislators to agree to send the amendment to the voters for approval. The legislators have to do so in two consecutive sessions. Last session 57 legislators voted for the ban, eight more than needed. Sometime this session, perhaps as early as mid-June, there will be a second vote. If it succeeds, the amendment would go on the November 2008 ballot in Massachusetts.
Gay-marriage supporters and national Democratic leaders, concerned about the implications of energizing social conservatives during a presidential election, are pushing hard to get eight more state legislators to switch their votes. That would prevent what would be a mammoth ballot fight in the state, drawing a lot of money and energy from around the country. According to the Boston Globe, they may have gotten support down to 52 in favor of the ban, just three short of what they need to stop it. That alone is an astonishing drop in legislative support from the more than 100 who supported some kind of constitutional ban just three years ago. This will be very interesting to watch.
I just returned from a week in Israel, and have the following observations and notes:
(1) Israel is thriving. Security at restaurants, shopping malls, et al., has been tremendously relaxed since I first starting traveling there regularly in 2003, new building projects are going up everywhere in the Tel Aviv area (where Israel's population is concentrated), unemployment is down, and vacant storefronts, common in 2003, are rare.
(2) The "Russians" (the million-plus immigrants from the former Soviet Union) seem to be integrating well. I saw many fewer Russian signs, and heard much less Russian spoken in the streets, than in 2003.
(3) I went to Tiberias on a day trip, and saw a large group of local Muslim Arab women, assumedly from a local Galilee village, walking around a hotel spa. About 1/3 of these women had features that were clearly African in origin. One can't raise the issue of the origins of the region's Arabs without raising political hackles, but completely aside from politics, I was fascinated by the question of how individuals of Black African descent wound up living in an Arab village in the Galilee, if indeed they were.
(4) A large percentage of middle-age Israeli women, especially of Mizrahi (Middle Eastern) origin, dye their hair an appalling and unnatural shade of red. I first encountered this hair-abuse on a trip to Greece in 2002, where many Athenian women used the same hair coloring, and really still can't understand why anyone finds it attractive.
(5) Perhaps my favorite diet soft drink is an Israeli beverage called Tapuzina, which, though I believe it is also Hebrew for a type of tree, literally means "Orangina." Like Orangina, Tapuzina is an orange (it also comes in grapefruit and grape flavors, the diet grapefruit is excellent) drink with pulp. You can find it in kosher supermarkets in the U.S. All of which, being a law professor, makes me wonder whether Orangina has some sort of intellectual property claim against Tapuzina.
(6) We bought my daughter a bunch of Hebrew kids' DVDs. Apparently, new DVD players can play both international formats, and we don't have any trouble playing the non-NTSC dvds at home. Anyway, there is something a bit surreal about seeing Count von Count of Sesame Street singing in Hebrew, not to mention seeing Po and the rest of the Teletubbies demanding "Chibuki" ("Big Hug").
If Hamas turns out to be unwilling to turn itself into a non-terrorist movement that Israel can reasonably deal with, Israel will have no choice but to absolutely destroy the Palestinian government. If that's what happens, the international community may need to rethink the whole idea of a sovereign Palestinian state. Professor Inbar of Bar Ilan University has suggested that Gaza should be confederated with Egypt, and the West Bank with Jordan, with these governments, which have peace treaties with Israel, having security responsibility. In my opinion, such a plan would make Palestinian independence/autonomy much more viable from both a political and economic perspective. It would obviously take significant change international attitudes to move toward that solution, but an unrepentant Hamas terrorist government in the Palestinian areas might just move opinion in that direction.
As it turns out, the Palestinian government is succeeding at destroying itself without much help from Israel, and the idea of confederating the Palestinian areas with Jordan and Egypt is gaining traction. Kudos to Prof. Inbar for being well ahead of the curve.
Princeton University Press has just published GMU economist (and my friend) Bryan Caplan's book, The Myth of the Rational Voter: Why Democracies Choose Bad Policies. I haven't see the book yet, but I've read several of Bryan's articles on the subject, which are absolutely fascinating. I'm ordering my copy today.
UPDATE: Tyler Cowen writes that its "one of the two or three best books on public choice in the last twenty years." And economist Greg Mankiw of Harvard writes that it's "the best book I've read lately."
Most Self-Indulgent Legal Opinion?:
There seems to be a trend towards judges needing to prove oh-how-funny and oh-how-witty they are by writing legal opinions that just scream, "look at me! look at me!"
The latest example is a separate opinion yesterday in a Florida state appellate court decision, Funny Cide Ventures v. Miami Herald. The opinion, by Judge Farmer, is a meandering waste of 8-pages of West Reporter. Its primary goal seems to be to impress readers with just how clever and entertaining Judge Farmer can be.
Fortunately, the other two judges on the panel, Judges Stone and May, had the restraint and common sense not to sign on to Judge Farmer's wannabe Green Bag submission. As best I can tell, they forced Judge Farmer to write a two-page traditional opinion rejecting the lawsuit (which was completely frivolous). Farmer then labeled that opinion "per curiam," and added on his submission as a separate opinion along with an explanation of what happened.
To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I'm sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I'm just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.
Most English words, even those adapted from Latin, form derivatives or related words through pretty standard English rules. Test (noun) corresponds to test (verb); screen (noun) corresponds to screen (verb); president (noun) corresponds to presidential (adjective); determine (verb) corresponds to determination (noun).
But rule (noun) corresponds to regulate (verb). (Regulation also corresponds to regulate, but rule [noun] doesn't generally correspond to rule [verb].)
Crown (verb) corresponds to coronation (noun). (Though "crowning" [noun] is attested in the OED, it's extremely unusual; "coronation" is what is normally used.)
Dean (noun) corresponds to decanal (adjective), not to "deanic" or "deanal."
English (adjective) corresponds to Anglicize (verb), not to "Englishify."
See (verb) corresponds to visible (adjective), not to "seeable"; likewise for hear and feel. [UPDATE: As several commenters pointed out, this violates my rule 2 below; I added that rule -- to limit the range of possible answers -- after composing this set of examples, but forgot to come back to delete them. Whoops.]
What other correspondences like this can you find? The criteria are that (1) an Anglicized word must correspond to a Latinate form — (2) a form that shares the same Latin root as the Anglicized original (so "cat" / "feline" won't count) — and (3) must not correspond to a common alternative form created using relatively standard rules of English word adaptation.
If we believe that soccer could stand some improvement with a few changes here and there to the laws of the game, how would we go about testing new proposals? The ingenious system of federalism in the United States allows us, within certain limits, to wander into any willing laboratory to experiment with new regulations without heaving the whole system into chaos. The big challenge with sports, of course, is that unlike, say, parking meter policy, the playing and viewing public has a greater desire for uniformity. If we are to have a grand finale to determine the world champion at anything, presumably the world needs to play by the same rules.
On the other hand, different systems of baseball in the National and American Leagues haven’t ruled out the World Series. Basketball and hockey also live with different sets of rules for international play and the North American leagues. So, it seems, a certain degree of variation in the rules can be tolerated.
Would it be a good idea to encourage various leagues to test-drive new rules and, if so, could we do it? FIFA comprises several regional football federations (UEFA, CONCACAF, CONMEBOL, &c.), which in turn comprise all the national football associations, so we certainly have plenty of potential laboratories. But would it be a good idea?
Professor Michael Madison of the University of Pittsburgh School of Law points out that heterogeneity has its costs, citing the old North American Soccer League (1968-1984), which experimented unsuccessfully with several ways of increasing the number of goals in the game. Evidently, the American players brought up in such a system suffered at the international level for their lack of experience with the “real” rules. I agree that a country like America, which did not have a sterling football pedigree at the time, might not be the best place to create a soccer secessionist movement.
But perhaps Professor Madison’s example suggests that footballing federalism should move down a level, to the lower leagues within countries. If a nation as a whole does not want to be handicapped in international competition, perhaps the experimentation should occur in places like England’s League One and Two (which were the Third and Fourth Divisions before the authorities began subscribing to the accreditation inflation that afflicts resumes everywhere and the cup sizes at Starbucks). Or perhaps certain secondary tournaments (Olympics, Under-21 World Cup, &c.) could experiment with the new rules, which would subject each competing nation to the same level of inexperience and confine the scope of the experiment.
So if we have the desire and locales, could we do it? One additional limitation that soccer faces more than the North American sports is its comparative lack of statistics. Free-flowing games are inherently more difficult to measure and quantify. The joy, such as it is, of baseball, football, and (increasingly) basketball games being divided into individual plays of just a few seconds in length is that statisticians and advertisers can deploy their full talents. Soccer simply doesn’t lend itself to the kind of dissection that would allow observers to measure the full effects of any experiment with the rules. Perhaps with the technological increases that some teams are beginning to use to track the specific movements of the ball and their players, the sport will develop a large statistical library in the future.
Comparisons between sports and other subjects can go only so far, of course, but it is interesting to consider how creeping centralization (antifederalism?) in corporate law is viewed in many quarters as an impoverishing, not an improving, development. With each passing corporate infelicity (Enron, et al., mutual funds, option backdating, &c.), new laws and rules regularly come down from our federal legislators and regulators. And one effect -- at least with respect to mutual funds -- is that the players (mutual fund advisers) appear to be playing more and more to the referee (the SEC) than to the audience (retail investors) by churning out ever more complex and lengthy prospectuses that no individual investor could reasonably read and comprehend.
Now, to conclude with today’s visual entertainment, I include below a friendly rebuttal to Professor Madison on the quality of the NASL via one of the best goals scored anywhere (and I’m not just saying that because George Best is an Irishman):
A realtor has a few lines to "sell" a house in North Arlington, listed for $759,000, and chooses to include the following information: "New, new, new! Enjoy exposed brick in the stairwell, and recessed lighting, 5"- 8" wide hw floors, and crown and chair molding on the main floor. Relax in the 12x25 family room/home theatre [sic] w/a 42" panasonic plasma, sony receiver, and in-ceiling speakers that all convey. Custom paint is everywhere in this three-level home. All four baths have new american standard toilets. More!"
Really? Even more than four new toilets!!?? And yet only $759,000!!?? I'll call my realtor right away to ask for a showing.
Love and Affection Shared Between DOJ and the White House, Spring 2004 Edition:The Comey testimony from yesterday has so many juicy little tidbits that it's a little hard to chose among them. But here are just two more little details I missed the first time that speak volumes about the level of trust between DOJ and the White House in the Spring of 2004.
First, there's the part about FBI Director Bob Mueller ordering the security detail at the hospital not to allow Comey to be removed from the hospital room. From Comey's testimony:
I went out in the hallway, [and] spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room
Can you imagine that? The Director of the FBI ordered FBI agents to make sure that the President's Counsel and Chief of Staff didn't kick out the Acting Attorney General in an effort to isolate Ashcroft and get his approval. (Thanks to Glenn Greenwald for spotting this.)
Another show of trust and love between DOJ and the White House comes two pages later in the transcript, when White House Chief of Staff Andrew Card demands that Comey come to the White House. Comey explains:
And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.
Think about that — the Acting AG was so suspicious of the WH Chief of Staff that he wouldn't come to the White House to talk to him without a witness present. Wow.
What Led DOJ to Oppose the NSA Surveillance Program?:
So what were the events that led the top officials at DOJ and the FBI to threaten to resign in 2004 over the NSA surveillance program? Like Marty Lederman, I imagine the key difference was the shift from the legal theories that the John Yoo/Jay Bybee OLC embraced as compared to what Jack Goldmsith's OLC adopted.
Specifically, I imagine it went something like this. (Warning: Lots and lots of speculation ahead.) As Marty notes, it seems likely that John Yoo had written the initial 2001 memo under OLC head Jay Bybee approving the NSA surveillance program entirely on Article II grounds. Presumably it said that the President as Commander-in-Chief can authorize whatever monitoring the President wants to authorize to protect the county. When Goldsmith took over at OLC, however, he probably repudiated Yoo's Article II theory and instead tried to justify the program under the post 9/11 Authorization to Use Military Force (AUMF). That introduced a tailoring requirement -- specifically, a need for the monitoring to be directed "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of 9/11. (There might be a similar tailoring requirement under the Fourth Amendment depending on how you read the cases and how the technology works.)
What difference would that make? Well, we're guessing, of course, but it may be that the restrictions on the program that the Bush Administration has emphasized -- monitoring only with cause, when one person is believed to be outside the U.S., etc. -- were the requirements that Comey and Goldsmith were insisting on at the hospital that night when Gonzales and Card came by. Remember the "important safeguards" that Gonzales emphasized in his February 2006 Senate testimony:
While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans.
First, only international communications are authorized for interception under this program. That is communications between a foreign country and this country.
Second, the program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're saying.
Third, to protect the privacy of Americans still further, the NSA employs safeguards to minimize the unnecessary collection and dissemination of information about U.S. persons.
Fourth, this program is administered by career professionals at NSA, expert intelligence analysts and their senior supervisors with access to the best available information. They make the decisions to initiate surveillance. The operation of the program is reviewed by NSA lawyers, and rigorous oversight is provided by the NSA inspector general.
It seems quite possible that it was exactly these protections that Gonzales was trying to avoid when he came to the hospital that night to try to get Ashcroft's signature. Perhaps Gonzales and Card wanted to keep the monitoring program "as is," in its broadest form as authorized by John Yoo. But Goldsmith persuaded Comey and Ashcroft and Mueller that it was lawful only if it the monitoring was more targeted along the lines that DOJ would later defend. If this theory is right, it may mean that Comey, Ashcroft, Goldsmith, and Mueller may have been ready to resign at least in part over the proper interpretation of Article II.
Anyway, I should emphasize that this is all just speculation. We only know a very small chunk of the facts, and it could be that the real elephant is very different from the small part we are feeling.
Another Clash Between Virtual And Physical Perspectives in Internet Law:
The Ninth Circuit handed down an interesting copyright case today, Perfect 10 v. Amazon.com. It's interesting case for a number of reasons, but I was particularly intrigued by the clash between virtual and physical descriptions of the Internet on the question of when a computer "displays" a copyrighted work (see analysis starting at 5770). The court adopted a physical/external perspective rather than a virtual/internal one, basing its rule on how computers actually work rather than the impressions held by casual users. For more on the clash between physical and virtual perspectives in Internet law, see here. (Hat tip: Howard)
A few weeks ago, I noticed that a first-year student of mine used the word "conclusory" instead of "conclusive." I corrected him -- I was polite (I think), but my job is to teach students and part of the job is to teach them how to use words properly. A "conclusory argument," I pointed out, is an argument that is long on conclusions and short on supporting evidence; "conclusive evidence," on the other hand, is evidence that points persuasively to a certain conclusion.
A few days ago, when Senator Arlen Specter was asked about Attorney General Alberto Gonzales' statement on the U.S. Attorney firings, he dismissed it as "conclusory". This usage puzzled me; it's missing from the standard (non-legal) dictionaries; and it was also news to Steve of the Language Hat blog, who must surely be in the top thousandth of a percentile or so in knowledge of English vocabulary.
Huh? What do you mean, missing from standard English dictionaries? Well, sure enough, here's the entry from the Oxford English Dictionary: "Relating or tending to a conclusion; conclusive." And from the Random House, by way of dictionary.com, "conclusive."
Shocking as it is to me -- and to several lawyers that I talked to -- but "conclusory," which I'd long assumed was a standard English term with the definition I just gave, is actually legalese. We lawyers are just so steeped in legalese that there's some legalese we no longer recognize as anything but normal.
In any event, my instructions to my class were correct: In legal discourse, "conclusory" indeed means something very different than "conclusive." But of course it makes sense that the student didn't grasp this; he hasn't yet become acculturated to legal lingo the way I have.
How Can State AG's Get Sex Offender Information from MySpace?:USA Today has an interesting story on efforts by several state Attorneys General to get MySpace to turn over the names and addresses of registered sex offenders who have profiles on the site. The state AGs wrote a letter asking MySpace to turn over the information. MySpace refused, citing the privacy protections of the Electronic Communications Privacy Act. The state AGs responded by "blasting" Myspace for its refusal to help:
Connecticut Attorney General Richard Blumenthal on Tuesday blasted MySpace for refusing to share the information and said no subpoena is needed for MySpace to tell the attorneys general how many registered sex offenders use the site "or other information relating to possible parole violations." "I am deeply disappointed and troubled by this unreasonable and unfounded rejection of our request for critical information about convicted sex offenders whose profiles are on MySpace," Blumenthal said. "By refusing this information, MySpace is precluding effective enforcement of parole and probation restrictions that safeguard society." North Carolina Attorney General Roy Cooper echoed the sentiment, saying "it's sad that MySpace is going to protect the privacy of sex offenders over the safety of children."
MySpace is clearly right that federal privacy law prohibits them from complying with the AG's letter, at least in its entirety. MySpace provides both electronic communications services and remote computing services under the Stored Communications Act portion of ECPA, so they can't disclose basic subscriber information to the government without a subpoena or court order unless one of several exceptions in 18 U.S.C. 2702 applies (which none does).
It's a trickier question with meta-data like the total number of registered sex offenders. The statute prohibits the disclosure of "information pertaining to a subscriber or customer." 18 U.S.C. 2702(c)(1). Does the fact that X sex offenders are MySpace subscribers constitute information "pertaining" to its subscribers? I think it does — it does relate to them, even if it is not personally identifying. So although it's a closer case, I would think that MySpace probably can't turn over that information either.
Why did the state AG's even bother writing this letter, given that federal privacy law blocks the disclosure in these circumstances (clearly for some information, less clearly for other information)? I can think of a few possible explanations. One possibility is that this California's state privacy law may require a warrant for this information rather than a subpoena. See Cal. Penal Code 1524.2, 1524.3. In a federal investigation, the California law would be ignored under the Supremacy Clause, and the govermment would be able to obtain the information with a subpoena. In contrast, state investigations have to comply with California state law. If that law requires a warrant, obviously the AG's can't get one — they don't have any PC.
So perhaps the AG's knew that they couldn't compel the information from MySpace legally, and instead they wrote a letter hoping that MySpace might conclude that disclosure would fit in a voluntary disclsoure exception to 2702. (To be clear, I'm not at all sure about this theory, as California's statutory scheme is rather puzzling. But it seems like a possibility worth floating. Note that even barring state law regulation, out-of-state court orders are not binding on MySpace in California.) That's the less cynical explanation, anyway.
Yesterday the Senate considered an amendment to the water projects bill that would have required the U.S. Army Corps of Engineers to consider the impact of climate change on proposed water projects. The measure was largely symbolic, but it divided the Senate nonetheless, attracting a bare majority -- 51 votes -- but not enough Senators to pass under the rules for the bill. The AP story is here.
On Monday, our challenge was to figure out what soccer team the Guardian clip was skewering with its depiction of players being coached to dive, writhe, and plead for medical help. Of course, the exercise is something of a Rorschach test, since there are no identifying insignias anywhere and none of the players looks familiar. So, what are we to make of the prominence in the comments of confident nominations for Italy, Portugal, and Mediterranean nations generally?
Gross generalizations or hard-won reputations? Certainly, Northern European nations like to tell a story in which they alone uphold chivalric honor on the field against the encroachment of continental duplicity and sneakiness. This observation fits in nicely with broader cultural tales of Anglo-Saxon fair play, organizational abilities, and willingness to queue up versus Mediterranean penchants for eating dinner late, arguing about a 35-hour work week, and willingness to wear Speedos in public.
In practice (i.e., in pubs from Manchester to Munich), the argument is typically deployed with references to Mediterranean siestas, friends whose pockets were picked in [Rome, Marseille, the Algarve], and that time some guy cut the line at [the Coliseum, the Louvre, a Lisbon shrimp shack]. All of which results in this kind of behavior at the World Cup:
Of course, this isn’t the only version of the story. Italian, French, and Portuguese fans are quick to point out the boorish style of English soccer, which long consisted of mindless punts towards galoots up in the box, savage tackles, and nary a whit of style or skill. Roy Keane may not go down lightly in a challenge or be willing to roll around in front of his mates, the argument goes, but he’ll happily snap your shin in half.
There is a certain amount of truth to both sides of this debate, as footage of English and Italian league matches from twenty years ago will bear out. Yet there has also been a good deal of intermixture in the game since then. The English Premiership today includes many more foreign players than years past, as well as huge amounts of skill and, of course, a fresh surplus of diving. The Mediterranean leagues also include many more foreigners today, a more attacking game than the catenaccio affairs of decades ago, and some serious aggression of its own. For instance:
Only the Italian league seems unwilling to welcome as diverse an array of players and styles -- and so long as the Italians keep winning World Cup and Champions League trophies, they may be unlikely to feel any need to change.
If it is true that some nations are more tolerant of diving, what accounts for that attitude? And is diving a less competitive retreat from a willingness to contend using athletic ability alone or is it, instead, a more competitive willingness to engage in total warfare where every possible advantage is used?
A variation of this discussion of social norms also extends to questions about which of these kinds of societies produce better kinds of players (defenders, goalkeepers, attackers) and officials. Here again, gross caricatures dominate pub and taverna chat about how good goalies can come only from nations with a strong ethic of defending the realm, or how only a laissez-faire society with flair can produce gifted strikers.
I suspect that these topics tie into much deeper cultural attitudes and norms that lie far beyond the scope of these few paragraphs. But, for what it’s worth, many observers have pointed out that diving and faking injuries are phenomena almost wholly absent from the women’s game.
While Monday’s comments connected with a well-established debate about cultural observations in European soccer, Tuesday’s collection revealed another, decidedly American cultural debate. That is, the effeteness of this whole game of soccer. This attitude belies a very interesting difference between America, where soccer is not a blue-collar sport, and most of the rest of the world, where it most certainly is.
In America, some commentators would have us believe that soccer is weak because players don’t use their hands and there’s no manly contact such as there is in football. In Europe, others would retort that American football is just rugby for people who need padding, and baseball is cricket for people who can’t catch a ball with their bare hands. Without delving into the merits of these positions, if there are any, what is interesting is the apparently universal need to establish the manliness of one’s native sport.
Perhaps this simply has to do with standard nativism and the common tendency to dismiss other stuff as effeminate, Communist, fascist, or whatever else happens to be the epithet du jour. But in England, the saying is that soccer is a game for gentlemen played by thugs, while rugby is a game for thugs played by gentlemen. So perhaps there’s room for “evolution” in American attitudes as well.
Vanity Fair has some interesting excerpts from Ronald Reagan's diary that he kept throughout his eight years as president. There is some fascinating material, such as Reagan's early (December 1981) recognition that the Solidarity uprising against communism was a crucial opportunity for the West: "We can't let this revolution against Communism fail without our offering a hand. We may never have an opportunity like this one in our lifetime." Even earlier, he noted that Solidarity was "the first break in the Red Dike." So it indeed proved to be.
But the funniest part is Reagan's 1984 description of liberal Republican Senator Lowell Weicker as "a pompous, no good, fathead."
A divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected a death-row inmate's appeal of the denial of his habeas petition in Henley v. Bell. Steve Henley was sentenced to death in Tennessee after his conviction on two counts of first-degree murder and aggravated arson. He filed a habeas petition alleging twenty-one errors in the state court proceedings. A federal district court denied all of Henley's claims, and Henley appealed on six issues.
In Henley v. Bell, Judge Cook wrote for herself and Judge Siler, rejecting all six of Henley's claims. Judge Cole dissented in part, as he would have granted Henley's ineffective assistance of counsel at sentencing claim and would have granted an evientiary hearing on Henley's due process challenge to "the systematic exclusion of women . . . from the position of grand-jury foreperson."
UPDATE: Habeas corpus petitions are not the only source of divided opinions on the Sixth. Doug Berman discusses an interesting sentencing case that divided the Sixth Circuit here. And for something completely different, check out the opinions in this case dividing over the proper remedy in an ERISA case (it's actually more interesting than it sounds).
Political ideology - at least in so far as it influences judicial decisions - is an extremely important attribute of a judicial nominee. The reason is clear: when judges make decisions in major cases, it is important that they get them right, not just that they do a good lawyerly job of justifying whatever conclusions they reach. As between a technically well-written opinion defending the wrong outcome in an important case and a mediocre opinion defending the right one, there is good reason to prefer the latter.
In cases where the relevant statute or constitutional provision is very clear, ideology may not influence the outcome much. But where there is vagueness and doubt (as there is with several important parts of the Constitution), both empirical research and common sense suggest that ideology may matter a lot. Moreover, the rise of nontextualist modes of interpretation has led to situations where ideology might influence the interpretation of even clear and unequivocal legal texts.
Since the dawn of the Republic, presidents have taken ideology into account when deciding who to nominate. Senators have every right to take it into account in deciding who to confirm. That is not to say that other considerations - including qualifications - are unimportant. They are and they should be. Nor do I mean to suggest that either the president or senators should only approve those nominees who agree with them 100%. However, ideology is one of several considerations that both the president and the Senate can reasonably take into account.
Obviously, senators will sometimes oppose a nominee for ideological reasons that I think are unsound. But the same is true of presidents, who will sometimes use flawed ideological criteria in picking their nominees. On average, however, a nominee subject to scrutiny by both the president and the Senate is likely to be better than one whose ideology has been weighed by the president alone, and thus represents a possibly much narrower range of interests.
The nomination procedure established by the Constitution inevitably invites consideration of ideological and political factors. After all, judges are nominated by the nation's most prominent political leader (the President) and are subject to confirmation by another political body (the Senate). Unlike many European countries, we do not have a "professional" judiciary in which appointment and promotion is controlled by higher ranking judges, bureaucrats, or other "nonpolitical" officials. On balance, that is a good thing. Flawed, as they are, the ideological preferences of the president and the Senate are more likely to lead to good outcomes than those of a narrow clique of career government bureaucrats.
That said, those who oppose a nominee because of his or her ideology should do so explicitly, not behind dubious accusations of incompetence or ethical impropriety. For example, as co-blogger Jim Lindgren has shown, American Bar Association ratings of judicial nominees generally rank liberal nominees higher than conservative ones with similar credentials. The ABA has every right to take ideology into account in rating judicial nominees, but it should not pretend that its partially ideology-driven judgments reflect a purely nonpolitical evaluation of objective "qualifications." On this issue (if on little else), I agree with Democratic Senator Charles Schumer:
For one reason or another, examining the ideologies of judicial nominees has become something of a Senate taboo. In part out of a fear of being labeled partisan, senators have driven legitimate consideration and discussion of ideology underground. The not-so-dirty little secret of the Senate is that we do consider ideology, but privately. Unfortunately, the taboo has led senators who oppose a nominee for ideological reasons to justify their opposition by finding nonideological factors, like small financial improprieties from long ago. This "gotcha" politics has warped the confirmation process and harmed the Senate's reputation.
Shunning explicit ideological considerations has not always been the Senate's practice. From the beginning of our republic, the president's judicial nominees have been rejected based on their political ideologies, sometimes even for their views on a single political issue. In 1795, George Washington's nomination of John Rutledge to be chief justice was scuttled because Rutledge had criticized the Jay Treaty. In 1845, President Polk's nomination of George Woodward was defeated because of his positions on immigration. ...
It would be best for the Senate, the president's nominees and the country if we return to a more open and rational debate about ideology when we consider nominees.
The responses to my post on the Keisler nomination below raise many issues that I have addressed in prior posts on this blog (see here, here, here, and here). To recap my take on things: 1) I believe the Senate should be relatively deferential in confirming judicial nominees, focusing on qualifications rather than ideology; 2) the modern practice of opposition to appellate judicial nominations on ideological grounds began in the mid-to-late 1980s when Senate Democrats decided to try and blog some of President Reagan's nominees; 3) efforts to block Reagan and Bush I nominees intensified in the last two years of their presidential terms(1987-88 and 1991-92); 4) once Republicans took the Senate during the Clinton Administration, they retaliated and upped the level of obstruction, often engaging in greater obstruction than had Senate Democrats; 5) during this administration, Senate Democrats have upped the level of obstruction, in both the majority and the minority; 6) this "downward spiral" of retaliation and politicization (to use Larry Solum's phrase) is ultimately corrosive of the judiciary and prevents the nomination and confirmation of the most-qualified judicial nominees; 7) neither party should engage in the obstruction of qualified judicial nominees, and both parties deserve blame for engaging in obstruction and delay in the past.
Returning to the present, I believe there is (once again) a window of opportunity to escape from the "downward spiral of politicization." While there is a Republican President, the Democrats control the Senate and have a reasonable prospect of capturing the Presidency in 2008. Therefore, Democrats have the opportunity to re-establish a standard of good behavior toward judicial nominees — a standard neither party has met in quite some time — and therefore create Republicans to follow suit.
Another possibility would be for both parties to agre
