PrawfsBlawg

Judge Alito, Catholics, Sovereign Immunity, and the Court

Over at my blogging home-base, "Mirror of Justice," we are having a lively conversation about Catholics on the Court, sovereign immunity and Catholic Social Teaching, structural federalism, and Reformation Day.  Check it out.  In particular, my new blogging colleague Eduardo Penalver and I are discussing whether there is a tension between the substantive policies often associated with the Catholic Social Thought tradition and the judicial enforcement of the Constitution's "structural" features.

A Short, Sad Social Commentary on Halloween

O.K., so we decided to buy candy and offer it up to the kiddies this Halloween.

It is just past 7 p.m. in Los Angeles. It is dark, time for the kids to come out and trick-or-treat.

So far, I have had to desperately cajole one group of kids and their doubting parents to my (too dark) doorstep to offer my candies. I am awaiting a second group. Since that first coup, I have turned on all the house lights in an attempt to make our abode seem safe and welcoming.

Last year it was the same story. We live five minutes east of Beverly Hills in an exclusive area of L.A. If trick-or-treaters come out tonight, it will be here. In fact, kids from the East Side of L.A. are known to come here for the prime (and safe) goodies. But tonight they are sadly missing.

I grew up in the 70’s and 80’s in Tennessee, and I do not remember my parents escorting us on Halloween – ever. Yes, that was Tennessee and this is L.A., but I’d bet the house and the car that this new phenomenon – very few groups of kids (trick-or-treaters) accompanied by paranoid parents – holds true today even in Tennessee.

So as I work on my latest Article, I await a few trick-or-treaters – ears perched toward the porch. I have a feeling that I will be waiting for some time.

Wait – I hear a family and kids. Gotta run!

Mr. Justice Pareto

Say what you will about Judge Alito, but I think this is a moment to praise President Bush for being a uniter, not a divider.  The 2006 elections are coming up, and in any event politics and fundraising are in a stage of permanent activity, in or out of election season.  The Miers nomination didn't allow Democrats to fundraise and stir up voters, because they were waiting for the GOP to self-immolate; and it was difficult for stalwart GOP-side interest groups to fundraise or get out front on political consciousness-raising, because support for her was lukewarm and actively fundraising against her would have brought repercussions from the White House and the GOP down the line.

Happily, the nomination of Judge Alito is a cure for all ills.  Conservatives can actively fundraise and engage in political activity, using Judge Alito and generally, the coming apocalypse as a hook.  And so can liberal groups!  So, assuming that "follow the money" and "whose ox is gored" are still the operative instructions when seeking to understand developments in Washington -- even in the case of judicial nominations -- then it seems to me everyone's better off with an Alito nomination.

Note that none of this is a comment on Judge Alito's qualities.  (I may have more to say as I learn more about him -- although I can preliminarily say I hope this is not the occasion for a return to the "unclear option" debate.)  My views on Judge Alito's merits as a nominee are largely beside the point in this post -- as, I would say, they are largely (but not entirely) beside the point for the political parties and the interest groups, who care about the substantive issues but care as much or more about maintaining strong loyal core membership, raising money, perpetuating their own existence, and conducting the permanent campaign.      

Following Up: Miers, Alito, and the Democrats

Several commenters seemed skeptical last week when I asserted that Miers' withdrawal was not a loss for the Democrats.  And now that Samuel Alito, Jr., aka "Scalito," has been nominated, those commenters may feel vindicated.  "Ah ha!" they might be remarking, "Bush didn't turn on his base.  He gave them/us exactly what they/we wanted!  There go the Democrats' chances of getting a moderate on the court."  Even with the Alito nomination, however, I still think the whole Miers' debacle ends up helping the Democrats.  Here's why.

1. Miers was too much of an ideological wild card to be trusted as a moderate choice.

Sure, a lot of conservatives hated her.  And yes, there were inklings in her speeches and her experience that indicated she might be more moderate on issues like abortion and affirmative action.  But there were also clear signs that she had undergone a conversion experience that radically changed her positions on these issues.  James Dobson endorsed her and said that the "blood of those babies who die" would be on his hands if he was wrong.  So I don't think either side could safely say what her ideology was.  Given the uncertainty, it was impossible for Democrats to support her prior to the hearings.  Yes, they said nice things, but they were waiting for the hearings to see what she was all about.  If she had tacked to the right in the hearings, Democrats would not have supported her.  If she tacked to the left, Republicans would have voted her down.  And frankly, if she had stayed mysterious, I don't think either side would have felt comfortable supporting her.  Neither side wanted to look like idiots after she voted on the first abortion case.

2. After the Miers debacle, Bush was "forced" to nominate a strongly conservative judge.

Now, this is a victory for conservatives, at least in the short term.  But is it a victory for Bush?  With Roberts and then Miers, he seemed to prefer the stealth candidate approach.  Maybe he was worried that a very conservative nominee couldn't win and/or would support Democrats' efforts to paint Republicans as extremists.  But apparently he felt that he had to respond to his base with this pick.  If you believe that American politics is all about reaching out to the middle, this is a bad thing.  Think about it: what if Clinton had nominated a conservative, crony pick, and then had been forced to nominate Mario Cuomo or Lawrence Tribe to appease the base?  Could you say for sure that the nomination in and of itself was a long-term victory for liberals?  Even before the hearings?

3. After the whole Miers debacle, Democrats are much better positioned to challenge this nominee on ideological grounds.

Counterintuitive, you say?  After all, Miers was brought down by her qualifications.  Well, that's true, but there's a myth out there that it was all based on her ideology.  Now that conservatives are happy with Judge Alito, he's solidly established as more conservative than Miers -- perhaps extremely conservative.  If Bush had nominated Judge Alito in the first place, Democrats would have had to establish that he was an extreme conservative.  (And this might have been hard to do.)  But thanks to the Miers scenario, the theme had been established: Bush tacks to the (far) right to please his base, and Democrats (justifiably) hop up to challenge the nomination.  You'll hear a lot today about how "The fight is on!"  Well, that wouldn't have happened without Miers.  Democrats (and the MSM) can paint this as a "right vs. left" battle (or "conservative base vs. the rest of America" battle, natch) without having to establish that Alito is very conservative.  Democrats are expected to challenge Alito -- the media is primed for a fight.  This is a very different situation than the Roberts confirmation process.  I think that's a big difference, especially when most of America isn't interested in parsing Third Circuit opinions too closely.

We'll see what goes down in the upcoming weeks.  But even if Judge Alito becomes Justice Alito, the Harriet Miers nomination and then withdrawal have changed the landscape in ways that, long term, help the Democrats.

Zissou, where are you?

The other day I watched the DVD of the Life Aquatic with Steve Zissou.  I had been meaning to watch this Wes Anderson movie for a while, though for a strange reason.  While I was in private practice, I represented a pro bono client in the 9^th Circuit who was, to my mind, wrongfully convicted for a bank fraud for which his brother was the main culprit.  (Happily, my client has just been released from prison, in part due to Booker.)  Unfortunately, the client had to face a related prosecution in New York, where he was being represented by none other than the real life Steve Zissou, a criminal defense lawyer in EDNY.  According to this article, Zissou had spoken to the film’s producers in advance to give permission for the use of his name in the movie.  I figured there might be some connection – alas, there was none.

Anyway, the movie, for which I held high expectations, disappointed, especially through the first hour, which could barely hold my attention due to its meandering pacing.  The second half was a bit better, and Willem Dafoe has some scene-stealing moments, but unless you’re an addict of all things Bill Murray and Wes Anderson, I’d advise that you just watch the Royal Tenenbaums again.  Or perhaps try L’Auberge Espagnole, which is a delightfully funny movie about a French student and his flatmates in Barcelona, with the bewitching Audrey Tatou in a small role as the protagonist’s girlfriend, who is left behind in Paris. 

Migrating to the Co-Op.

Starting today, I'll be posting on my new blog-home, Concurring Opinions, a blog started by Prawfs alums.  At Dan and Ethan's kind invitation, I'll still be posting around here occasionally over the next month as well. 

One of the many unique and great things about Prawfs that I will miss is its active network of commentators.   I hope that at least a few of you make a bit more time in your daily internet surfing to follow the goings on at the new digs, where Kaimi, Dan and Nate have already attracted a fair bit of attention (some of which has nothing to do with toys).

Regulating Search

Yale's Information Society Project is set to host a fascinating conference on the law of internet searching.  Learn more about the conference, set for December 3, 2005, here.  As with so much else at the ISP, it promises to be cutting edge.  As with so much else at PrawfsBlawg, we're breaking the news; the conference organizers will go public tomorrow or Tuesday.

One of the central issues to be explored is the legal status of Google Print.  When Doug Lichtman visited with us, he provoked a good discussion on the subject here.

Bernstein on Nullification and the Rule of Law

Over at the VC, David Bernstein put up a post in which he savages a NY jury which found the New York Port Authority 68% responsible for the 1993 WTC truck bombing.  Bernstein claims that in "too many civil cases, juries serve as a completely lawless element that wreaks havoc with the rule of law." 

As I've argued before, these types of claims about jury lawlessness are structurally flawed, in part because they don't compare the jury to other fact decision makers.  And, even if Bernstein had cited empirical evidence of jury incompetence, which he doesn't in his original post, criticizing the jury for doing its job is particularly inapt here.  After all, if the law permits plaintiffs to sue a landlord for negligent maintenance when a mugger breaks in, and permits plaintiffs to sue for failing to read internal reports of terror risk, how can you possibly blame the jury for allocating responsibility?  Bernstein argues in the comments that:

Perhaps the PA should, in an ideal legal system, be held partially responsible (though I'm dubious that there should be a legal duty to prevent terrorist attacks—that's the government's job!). However, New York is not one of the rare "pure" comparative negligence states, so holding the PA, say, 5% (or anything under 50%) responsible, wouldn't result in liability, so the jury simply decided to ensure that the PA would pay, regardless of the law.

There is lots to say here in response, but much of it has already been covered by VC's excellent commentators (e.g., the PA is a government entity; back-seat, uninformed, liability determinations are hard to swallow; claims of nullification shouldn't be thrown around so lightly).

So, rather than reading me tilting once more at this windmill, you should go and read the comment thread and make your own mind up.

Pensions and Moral Hazard

In this Sunday's New York Times Magazine, Roger Lowenstein talks in grim terms about the end of pensions.  But the issue's rhetorical complexity is demonstrated by the difference between the magazine's cover and the article itself.  The cover shows an elderly man sitting dejectedly with the headline, "We Regret To Inform You That You No Longer Have a Pension."  And the article itself begins with a story about Delphi Corp., its efforts to avoid bankruptcy, and its massive pension obligations.  But instead of pitching the theme that "workers are losing their pensions!", Lowenstein takes a very different tact.  He talks about the impossibility of cutting pension obligations.  He implies that these benefits are overly generous, citing to the UAW's "30 and Out" rallying cry.  And he then notes that a federal agency -- the Pension Benefit Guaranty Corporation -- insures pensions against loss.  Ultimately, the story Lowenstein paints is not one where workers are stripped of retirement protections; it is instead one where workers and employers (private and public) colluded to give workers inflated pension benefits, knowing that down the road the public (either through the PBGC or state government) would be forced to pick up the tab.  The term Lowenstein uses throughout the article is "moral hazard."

In my view, Lowenstein paints a distorted picture.  He claims that unions and employers happily raised pension benefits higher and higher, knowing that they would not have to bear the brunt down the road.  But this view is far too simplistic.  The pensions that Lowenstein discusses are not exhorbitant -- $18,000 a year at GM, $21,000 for California state employees.  While the PBGC guarantees pensions, they are capped at $45,600 a year -- significant, but not luxurious.  (And that number is for folks 65 years and older; if you retire at 50, you get at most $16,000 a year, no matter what your pension.)  Plus, who's to say that Congress won't change PBGC rules?  If I were a union negotiating for my employees' retirement, I wouldn't feel too comfortable about that.  And Lowenstein glides over the requirements that ERISA imposes on companies with defined benefit plans.  PBGC is supposed to be self-funded; ERISA is supposed to insure proper plan funding; and companies are only supposed to get PBGC protection when they're at the end of the economic road.  Some of these protections may have been too loose and should be tightened.  But the turn-of-the-century boom and bust messed with everyone's economic predictions.  Is it any surprise that some companies ended up on the wrong end of the bust?

And so 401(k)s aren't a simple answer.  Because instead of big companies ending up on the wrong side of the bust, 401(k)s would place large groups of individuals on the wrong side of the bust.  And presumably there's no PBGC for them.  Lowenstein should have focused more on this question: if large corporations and state governments can't manage the complexities of long-term planning, how can we expect most individuals to do it?  Lowenstein's answer is for everyone to buy annuities.  But why aren't companies and state governments buying annuity equivalents, then, or hiring annuity specialists to run their plans?  Certainly GM would have more market power in negotiating favorable terms for annuity-type protection than an individual auto worker.  But 401(k)s let employees choose to self-annuitize or pay higher prices for actual annuity protection.

The issue of pension funding ties up a lot of different financial questions and value judgments.  How long should people be expected to work?  How much risk should they bear in planning for their retirement?  Should smarter investors get the freedom to do better than their less skilled counterparts?  Should we rely on Social Security to provide a safety net, or should individual accounts be offered there as well?  And how much should one generation have to pay for another generation's retirement?  Lowenstein hardly touches on this last question, but that's the real inequity in his tale.  This generation's workers will be forced (through higher taxes) to pay for the retirement that the previous generation failed to save for.

Ultimately, Lowenstein's doomsday scenario isn't that frightening for me.  Let's say some big companies can't meet their pension obligations, and some state governments are hit with large pension payments for teachers, fire fighters, and cops.  Federal taxpayers will end up paying more to fund the PBGC, and state taxpayers will pay more to make sure cops get their pensions.  If such taxes are progressively funded, is a little income redistribution really such a bad thing?

Further re Blogging Ethics

If it is true, as our PrawfsBlawg bloggers noted earlier this month, that female law professors are less likely to blog -- then I come down on the side of Ethan Lieb.   Here’s why: let’s assume for the sake of argument that the reason women law professors are less represented among bloggers has something to do with either reticence (because of R/P/T concerns) or perhaps lack of time (due to childrearing or other family obligations).

If this is true, woman might be more likely to blog (and blog more frequently, openly, and quickly ) if they knew that a mistake or blunder could be corrected by deletion. I tend to spell-check, re-think, and re-edit almost every blog I post. This is because I assume it will be online for all-time. (Full disclosure: this blog is an exception because I have an article deadline coming up but wanted to put in my quick two cents.)

If deletion is considered ethical in the blogging community, professors in general (and woman in particular) might be more likely to show up and express their opinions.

P.S. Can I delete this later if it is too controversial?

More blogging ethics questions

Ethan's post below stirred the following reactions and question: I think if you take down a post entirely, that's fine--the only issue is if people have linked to it, in which case they might be viewed as nutty for linking to a dead post.  Perhaps the best thing to do is to leave the link alive and alter it or indicate that you've thought better of it, and now, you want to retract and remove what you said earlier.  I think if you leave the post and alter it substantively (by taking a position 180 degrees to the opposite) then you should include an update that this post has been altered upon better judgment; I don't think it's necessary to leave the previous material available for all to see.  I don't think updates are warranted for changing spelling, grammar, etc.

I think another interesting blogging question is what can/ought we blog about that happens in our off-line lives?  For example, the other day Kaimi blogged on Co-Op about Orly Lobel's presentation at TJSL.  It was all good publicity so no harm, perhaps no foul?  I have so far refrained from blogging about papers in progress or presentations, though they are out there in the public.  Should we refrain? People do often live-blog public presentations--are faculty presentations different?  I assume most people prefer the default rule that if you're going to blog about something that happened in real life, then you should either secure the person's permission or at least remove any identifying characteristics.  The latter might be hard to do of course, especially if you want to respect the academic norm of attributing credit/responsibility for ideas.  Thoughts? 

Blogging Ethics

Last week, I posted something rather small-minded about someone's failure to cite me.  I took it down and explained why here, upon questioning by a commenter in another post.  Sometime soon thereafter I came across this "confession" by another blogger:

A confession

I edit. Even after I post.

I started thinking: "Is there some ethical barrier that should prevent me from editing my posts or taking them down at my pleasure?"  It is certainly true that one finds many bloggers who "update" their posts, informing readers of changes made to the original posts.  But I suppose my view is that I am entitled to do whatever I want with my posts.  One could argue, I guess, that I have duties to the blogosphere--whatever ethical community that is.  Still, my tentative view is that if I want to edit or delete my posts with or without disclosure, that is my prerogative.

That said, you may as well know that I only very infrequently remove my posts (though I frequently edit for spelling and grammar).  I can think of only two other times: all three times were lapses of judgment on my part that I had the power to correct.

Can McConnell "Hate" Bush v. Gore?

A while back I asked, "Can Roberts Hate Roe?"  That is, should then-nominee Roberts be obliged publicly to state his fealty to the decision in Roe v. Wade, or effectively disqualified if he openly admitted what pretty well every legal academic, at least, acknowledges -- that Roe is a poor piece of legal work?  Should pro-choice Democrats demand not only that he would preserve the conclusion that there is a constitutional right to abortion, but that he praise, or at least not criticize, an opinion that any candid person would admit is more than open to criticism?

As we think anew about potential replacement nominees for Justice O'Connor's seat, we might ask the same question -- this time, of the right.  So, the question for today is, "Can McConnell 'hate' -- or at least criticize -- Bush v. Gore?"  Again, here's an opinion widely derided as unprincipled and incoherent.  Even discounting some of the fervor of the criticism, and allowing for the hasty and pressured circumstances in which it was decided, as I think we must, it is widely viewed as poor judicial work.  Even most of its defenders are tepid, at best, in its defense.  And Michael McConnell openly criticized the opinion at the time. 

I think the answer is yes -- but I note that at least one conservative writer says otherwise, writing of McConnell that his criticism of that case shows that "he’s a solid conservative scholar, but he isn’t partisan enough. He’s argued that Bush v. Gore was a bad decision. That alone should disqualify him; the next time a case like that comes up, we need to be sure of a 5-4 majority."  I admit I don't know if this is a parody or not.  If so, good one.  (The same writer argues that Maureen Mahoney likewise should be disqualifed because she argued the University of Michigan cases.) 

Are they bullshit or just lies?

Matt's post correctly punctures two popular stories out there being spun about Miers.  Here are two more memes, which are both false.  The hard part is figuring out whether, to use Harry Frankfurt's distinction, they are lies or bullshit.

1) Yesterday, the Democrat from Nevada, Senator Harry Reid said: "The radical right wing of the Republican Party killed the Harriet Miers' nomination."  Reid also said:  "In choosing a replacement for Ms. Miers, President Bush should not reward the bad behavior of his right-wing base." 

As to cause, Reid is clearly mistaken.  The nomination was vigorously opposed by an overlapping cluster (not quite a consensus) of principled (and perhaps pointy-headed) conservatives and liberals who wanted to see someone sufficiently competent in the seat, and preferably not a crony.  Miers may also have been opposed by the radical right wing of the Republican Party but she was also supported by groups who fit that label.  So, lies or bullshit?

2) After Miers' withdrawal yesterday, John Cornyn, the Republican Senator from Texas, said that the withdrawal of the nomination only proves this "was was a fundamentally unfair process."  Not true. There was little to nothing unfair about this process.  Some Senators were Miers' champions right away, and some opposed her on grounds of cronyism and qualifications.  The vast majority waited to see information about her trickle in.  It wasn't impressive.  The answers to her question sheets submitted were "inadequate," "insufficient" and "insulting."  Senators weren't impressed upon meeting her in terms of her ability to do a good job.  Indeed, after meeting her, the Republican Senator Arlen Specter suggested she needed a crash course in constitutional law.  Moreover, the alleged unfairness of the process, which Cornyn also called "poisonous" should be studied in juxtaposition with how "unfair" the process was just this August and September, when Roberts was being screened.  Most reasonable Democratic Senators recognized that Roberts was an outstanding nominee (for a Republican) and many confirmed him.  The atmosphere about Roberts, in the mainstream, was not "poisonous."  While good Senators may have reasonably wanted more information about Roberts' views, and viewed that as a sufficient reason to oppose Roberts, the process towards Roberts was not unfair.  In short, while Miers may not have had the chance to speak to the Senators in an open hearing, it cannot be said -- with fidelity to the truth -- that the process was unfair in her case.  Nobody from the White House forced her to withdraw; it was her choice, influenced no doubt because of an emerging and overlapping opposition to her based on a variety of factors.  The process, far from being unfair or poisonous as Cornyn called it, worked well.  So, lies or bullshit?

Miers' Myths

With the withdrawal of Harriet Miers, theories and aphorisms about the "meaning" of the whole sad affair are beginning to spread mushrooms after a rainstorm.  Many of these theories, like the president's stated reason for accepting her withdrawal, are simply wrong.  Here are a couple that particularly exercise me:

1. The Miers debacle was all about ideology.

Over at Slate, Dahlia Lithwick argues that the Miers' nomination "went off the rails about seven seconds after it was announced" because of Miers' lack of a conservative record.  While it's true that Miers had real ideological opposition from folks who wanted a more established conservative, her resume is what really did her in.  For folks like George Will, it was always about her lack of qualifications and the whiff of cronyism.  If a respected, experienced centrist is nominated, some conservatives might cry foul, but they would not be able to bring down the nomination simply based on ideology.  (There's a similar myth that Bork was brought down solely because of his ideology.  But Bork orchestrated the Saturday Night Massacre.  If Bork hadn't fired Cox, he'd be on the Supreme Court.)

2. Miers' withdrawal is a loss for the Democrats.

I heard Laura Ingraham trying to make this case on the radio.  All I can say is: are you Effingham kidding me?  Bush comes off very poorly in this: he nominated someone that almost everyone thought was a poor choice.  A group of intelligent conservatives turned against Bush; they said they don't trust Bush anymore while slipping in complaints about Iraq and the deficit.  Now, Bush will only placate them by nominating a very conservative justice.  But what if he does?  He'd look like he was caving in to these folks.  If he had nominated a Luttig or Jones initially, Democrats would have been in a tough spot, having to convince the country that the person was extreme.  Now, if faced with Luttig or Brown, Dems can say, "Bush is toadying to the far right because they brought down that decent woman, Harriet Miers.  You know, the nice Christian lady?"  And compared to Miers, a strong conservative will look like an extremist.  I still think an extreme nominee might be just what congressional Dems are hoping for.  Regardless, however, Dems now have more ammunition to fight the next nominee than they would have had without Miers.  And that counts as a gain, not a loss.

Right now

. . . a million Typepad accounts are busy.

And like that: she was gone

Here's the story.  People who are purporting to be stunned should check their wallets.  This writing was on the wall as soon as the Bushies figured there'd be a procedural exit strategy on the basis of her papers in the office. 

Ok, who's next? 

You know how I figured out it was a joke?

This can't be a real contract.  There's no Definitions section.

Crying for the Astros

This has nothing to do with the law or academia, but I have to express my dismay that the White Sox just won the World Series (4-0). The Houston Astros were the true underdogs here, and I wanted -- needed -- them to win at least one game. I guess it’s the liberal in me. 

Democrats and the Miers Endgame

Lots of folks have noted the relative complacency of Democrats when it comes to the Miers' nomination.  Some Democrats have questioned whether Miers has the votes to win, but no one has come out swinging against her.  Given Miers' manifold qualification problems, it does seem that Democrats are open to the criticism, as Paul pointed out last week, that they are being hypocritical.  Indeed, such hypocrisy might also be short-sighted, as Miers could be far more conservative than Democrats are hoping and perhaps presuming she'll be.

I think there may be a different dynamic.  Some Democrats may very well not want Miers, but they don't want to do the dirty work.  Given the almost instantaneous negative reactions from conservatives, Democrats didn't need to raise the objections one would expect about her qualifications, her views on Roe, or her ties to the President.  Knowing that they have no power to choose the nominee, and perhaps ultimately limited ability to bring a nominee down, Democrats are probably hoping that (a) the Republican right brings down Miers, and (b) Bush is so angry at the disloyalty that he chooses an even less conservative replacement.  Although Stephen Bainbridge does bring up the possibility at the end of this post, anti-Miers conservatives seem not all that concerned about it.  But this is a president that often relies on his gut.  He can be vindictive, and, in fact, his supporters seem to be threatening such vengeance.  If I were a conservative, I'd be really worried that the next nominee will look less like Michael Luttig and more like the dreaded Alberto.  (Although, as Rick Hasen persuasively argues, it will probably not be Gonzales himself.)

Jack Balkin discusses all of these dynamics in a great post, in which he discusses three possible post-Miers scenarios: nomination of a more conservative nominee, nomination of a less conservative nominee, and no nomination until after the 2006 elections.  He says that the second two options are wins for Democrats, but the first is not.  But even the first could be a win for Democrats.  To begin with, it's hard to know actually how conservative Miers is, so it's hard to know if the new nominee would be more conservative.  If the nominee is really conservative (say, a Janice Rogers Brown), then Democrats can raise more money from their base, paint Bush as a captive of the right-wing blogosphere, and run on social issues more favorable to them in the 2006 elections.  An outspoken nominee in the Bork-Scalia-Thomas mold may not be all that bad for Democrats politically. 

The best move for Democratic senators might be to call the White House and say, "Let's talk in private."  They could help Bush plan for a smooth exit strategy and then make some recommendations for the next nominee.  Bush might be in the mood to horse-trade, particularly if he's not in the mood to deal with the right.  Perhaps one candidate they might be able to agree on is Michael Chertoff.  If you're Bush, you want Chertoff out of Homeland Security.  He is indelibly tied to the Katrina failures.  But moving up to the Supreme Court would be framed as a great personal move, rather than a firing or resignation in disgrace.  (Cf. Bolton.)  And his Homeland Security experience would be largely irrelevant to his qualifications for justice, and thus, no questions about FEMA during the confirmation hearings.  He has a great law and order background as a prosecutor, first working with Rudy Giuliani and then as the New Jersey U.S. attorney.  He's been in private practice (Latham & Watkins), and he's been a federal appeals judge on the Third Circuit.  Democrats like Bill Bradley like him, but conservatives can point to his role in Whitewater in helping to tar the Clintons.  And Bush presumably likes him, since he appointed him to his cabinet.

Of course, this is pure speculation.  But whatever happens, I think the Democrats' "popcorn strategy" will end up paying some dividends.

"The Best Possible Team That Supports the President"

Stuart Benjamin makes a rare and welcome appearance on CV to discuss discuss the Fitzgerald investigation.  He discusses James Comey's decision to appoint Fitzgerald, a fairly non-partisan career prosecutor, and the White House's reaction at the time, suggesting that Comey would not advance to John Ashcroft's position as AG because he had "erred too much on the side of neutrality and independence."  The money quote from Benjamin, one that he finds "disturbing in describing the leadership of the Department of Justice," is a White House official's quote that "[t]he objective in staffing is never to assemble the best possible team.  It is to assemble the best possible team that supports the president."

I think it's necessary to say that both quotes are not constitutionally disturbing.  One need not be a fierce advocate of the unitary executive school of thinking about the Presidency to agree that a President is generally entitled to seek subordinates who support him and his policies.  Would President Clinton have been obliged to select Orrin Hatch as AG if he thought Hatch was the single most qualified person for the job -- even if Hatch could not effectively carry out the President's will, or maintain his trust, because of their many differences?  Of course not.  Moreover, if the President is to take care that the laws be faithfully executed, according to his understanding of the Constitution and of his constitutional obligations, then he ought to be able to select and substantially control his subordinates accordingly -- with the equally central constitutional consequence that the President should be politically accountable for the actions or inaction of any and all of his subordinates.  If a lowly executive agency official -- or the President's chief of staff, or his VP's chief of staff -- screws up, it ought to be and is the President who bears the responsibility for the error.

The Benjamin post quotes a friend of his in the White House Counsel's office as saying that the best thing about having a Republican majority in both houses of Congress as well as the White House was that "[t]hat means no investigations."  And therein lies the rub.  A President is entitled to select "the best possible team that supports the president" rather than simply "the best possible team."  But to the extent the President chooses a supportive team that is far from "the best possible team," he is responsible both for that choice and for any errors or overreaching engaged in by that subpar team.  So the White House official's quote is not constitutionally disturbing -- it is only disturbing in the far more mundane, but in many ways far more important, realm of ordinary politics and governance. 

Indeed, I can't help but wonder whether Benjamin's friend wasn't unduly unconscious of the risks that attend a friendly political atmosphere in an environment of single-party control of the political branches.  True, there may be no investigations.  But that sense of freedom and relative lack of hostile scrutiny may liberate a President, particularly one who is a weak manager, to staff an executive branch so poorly, and manage it so carelessly, that a few partisan investigations might come to seem like a welcome tradeoff.     

Megan's Law v. Halloween

According to this article from today's Philadelphia Inquirer,

The state parole board is forbidding sex offenders under its supervision to answer the door for Halloween trick-or-treaters.

Any offender spotted handing out candy or in the presence of children could be bounced back to prison for as long as a year and a half, parole board spokesman Edward Bray said.

Last week, the board sent a letter to the 2,200 sex offenders under its supervision. The letter orders them to observe a 7 p.m. curfew; bans them from Halloween parties where children might be present; forbids them to go trick-or-treating with any child, including their own; and orders them not to answer the door for any trick-or-treater.

It is an interesting preventative strategy.   I wonder if the state had empirical evidence of a higher-than-average rate of illegal behavior on halloween?  In any event, don't forget that there are costs (perhaps ones we can justify) to rules like this:

Steven Elwell, 35, a former Cape May high school teacher and coach, pleaded guilty in 2001 to having sexual contact with a 16-year-old student and served one year in prison. Classified as a low-risk offender, he is now married with two young children and is an outspoken opponent of the growing number of local laws restricting where sex offenders can live.

"We were going to take our kids out trick-or-treating. It was going to be my son's first time, but now I'm not allowed to go, so I'm a little upset about it," Elwell said. "The way I look at it, I'm being punished again for the same crime."

Elwell said he had not received the letter. He said none of the other Megan's Law registrants at a court-ordered therapy class he just attended had received the letter, either.

Bray said 60 officers assigned to the parole board's Sex Offender Management Unit will perform spot checks on sex offenders' homes Monday night.

. . .

That came as a surprise to some police departments.

Screw the NYT and Slate; we made SSRN!

Congrats are in order to Hillel Levin and Bernie Meyler, whose ruminations about french fries and justice have warranted citation in Howard Wasserman's new article on SSRN entitled Fast Food Justice.  Wasserman was a former VAP at FSU and now teaches at FIU.  Here's the link to his piece and the abstract:

This light essay introduces the new interdisciplinary field of Law and Fast Food. It examines several well-known legal disputes involving fast food and fast food establishments. The inspiration and starting point for the essay is the recent decision in Hedgepeth v. WMATA (D.C. Cir. 2004), in which Supreme Court nominee John Roberts wrote the opinion rejecting a constitutional challenge by a 12-year-old girl who was arrested for eating a french fry in a train station. I suggest that this case captures the essence of Law and Fast Food: serious legal and social issues lost in the cultural and media parody that is fast food. Other cases that are part of the canon include the McDonald's obesity litigation, the McDonald's coffee case, and the McLibel lawsuit in England.

No doubt, Wasserman himself will prove to be the Prosser of this burgeringoning field.

2,000 and counting

The AP reports that "[t]he American military death toll in the Iraq war reached 2,000" today.

This day is a sad milestone.

Yes on Prop 77

In California's upcoming election on November 8, voters will be considering an initiative (Prop 77) that seeks to establish a relatively non-partisan commission of three retired judges to perform redistricting functions that have usually been performed by politicians.

Direct democracy scholars often tell us that voters can effectively use heuristics and signals from the major political parties, major candidates, and major interest groups to give them a clue as to how to vote.  In the case of Prop 77, voters know that Governor Schwarzenegger supports the initiative--and that most Democrats (and Daniel Hays Lowenstein of UCLA) oppose it.

I'm not an especially big fan of the Governor; yet I find that I want to vote for any reform of redistricting practices that takes it out of the hands of politicians and tries to put the very important political function in the hands of non-partisan commissions.  The system Prop 77 would put in place is far from perfect (indeed, I'm not really even sure I could design a perfect system on a blank slate)--and there may yet be many legal challenges brought delaying or ultimately preventing its enforceability. 

Still, I think I'm voting for Prop 77 (you have 2 weeks to convince me otherwise): I just don't believe Democrats when they explain their reasons for not supporting the initiative.  Sure, it would be nice to start this new system in 2010, after a census.  Sure, it would be nice to expand the commission beyond three retired judges, each of whom has been vetted by the major parties.  Sure, it would be nice to find a mechanism of accountability before the redistricting plans go into effect (because under 77 a vote on the ratification of redistricting plans seems to happen only after the plan is used for an election).  But I see almost no movement among Democrats and Prop 77's opponents to draft a real alternative.  I like "democratic experimentalism" and I think it is useful to see how different sorts of commissions work so we can continue the project of reforming redistricting practices nationwide.  I'm happy California is often at the vanguard of such reforms.  So I'm willing to take a gamble . . . even if it means supporting something the Governor does.

To The Person Who Got To Our Site By Searching Google For The Phrase "Self Cannibalizing"

You might want to try this search first.

Aren't We All Hipsters Now?

So we're being told by the New York Times that we're all preppies now.  This is a completely untenable claim.  The argument seems to be that because we all have something in our closets from J. Crew/Banana Republic/The Gap/Ralph Lauren, we're all East Coast WASPs who sail off the Vineyard.  As if "preppitity " (in the graceful locution of Tom Smith, who is , by a wide margin, the funniest blawgger out there) was just a uniform!  The author of the article is certainly right that preppy became an aspiration (particularly for upwardly mobile ethnic and religious minority groups who coveted something about sending kids to private schools and having second homes near water--and boats) and that people started disguising themselves as preppies.  But one can't become preppy just by dressing the part.  You could always  spot the real preppies, (still can!) even if your mother tried to make you look like them.  The subculture survives in an authentic form--just because there are a lot of people dressed liked them doesn't mean you can't spot the real ones.

It would be as absurd to argue that we're all hipsters now just because "The Hipster Handbook" is available to disseminate and standardize the meme--and because a certain sub-class of people who can afford it and choose to tend to wear their clothes a bit tighter and their hair a bit messier these days.  Anyway you dress, you still have to do more to conform to hipsterdom.

This raises a final point.  Just because hipsters have adopted a truck driver chic trade dress doesn't mean authentic truck driver subculture is dead.  Should we mourn the loss of the true preppies as the NYT op-ed suggests?  I'd argue we don't need to ask ourselves that question because they are still out there.  To be sure, the hipsters in Williamsburg (or have they all moved to Philadelphia?) will wear the little alligators too because retro is cool and ironic dressing is cooler.  But preppy thrives, as ever, in Kennebunkport.

Google and the Unusual Name

One of the great things about blogging is that you can post little nuggets of wisdom that come to you while showering, sitting on an airplane, etc.  It's like Billy Blazejowski and his little tape recorder.  (By the way, in terms of fictional characters, wouldn't Billy have been a great blogger?  "Sometimes I get so many ideas that I can't even fight them off!")

Anyway, here's an idea I've been kicking around for a while.  I've noticed that celebrities and folks from my generation have a hankering for giving their children unusual names.  You know, Kal-el, Rumer & Tallulah Belle, etc.  I'm not sure whether this might be a latent cause, or just an unanticipated effect, but it's a lot easier to find someone on Google if they have a less common name.  If you are looking to give your child a better opportunity to establish a personal brand, a strange appellation is the way to go.  Of course, sometimes someone's last name is unusual enough that a common first name doesn't make a difference.  And the absolute worst thing you can do is give your kid the same name as an existing celebrity -- say, Michael Bolton.

As an example of the Google phenomenon, let's look at the two current guest bloggers over at the Conglomerate.  A Google search for "David Zaring" turns up pretty much just David Zaring.  Perhaps this might not be the right David Zaring, but he doesn't show up until the second page of the search.  On the other hand, a search for "Joe Miller" provides us with a plethora of Joe Millers, including the mysterious joemiller.com.  Joe does pretty well for himself on the list, showing up as the third site.  But he has a lot of competition.  (The Google search is quite different than the Yahoo search, which places Joe fourth and leapsfrogs photographer Joe Miller to the top of the list.)

So how does "Matt Bodie" fare?  Well, the name is unusual enough that I am at the top of the list.  However, if this Matt Bodie (scroll down) continues to hit .375, then I think my days are numbered.

Will Bringing Opinions Online Make Them Funnier?

This (boring) article in the NYT on Steven Colbert reminded me how difficult it is to explain why jokes are funny.   I shouldn't need much reminding: this week in Contracts, I teach Leonard v. Pepsico, in which Judge Kimba Wood evaluated plaintiff's claim to have relied on Pepsi's "offer" of a harrier jet in a promotional campaign.  As Judge Wood explained, it was a difficult opinion to write:

Plaintiff's insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, "Humor can be dissected, as a frog can, but the thing dies in the process. . . ." The commercial is the embodiment of what defendant appropriately characterizes as "zany humor."

You can watch the commercials for yourself at the bottom of this page. It strikes me that Judge Wood would have had a much easier task on her hands had she been able to issue her opinion (only) in electronic form, and embed a quicktime movie into the text instead of undertaking a lengthy play-by-play.  Such e-opinions - the wave of the future - will be more efficient for appellate courts to review, and more easily consumable by bloggers, law students and the public alike.

As I and a co-author will argue in an article in progress, the problem with such entertaining legal content is that it threatens to significantly undercut venerable characteristics of primary legal texts, and turn opinion writing into a spectator sport. Commodification is only one of the unintended consequences of electronomic distribution of law, and one which I'm still trying to get my head around.

For all that, it might be worth it, if only to avoid paragraphs like this stilted one from the opinion:

[T]he notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy. In this commercial, the fantasy is underscored by how the teenager's schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows off one teacher's clothes, literally defrocking an authority figure. As if to emphasize the fantastic quality of having a Harrier Jet arrive at school, the Jet lands next to a plebeian bike rack. This fantasy is, of course, extremely unrealistic. No school would provide landing space for a student's fighter jet, or condone the disruption the jet's use would cause.

What rational purpose, apart from inducing consumption, does Pepsi's ad have?  When Pepsi characterizes its ad as "zany humor" is that a fancy word for "puffery"?  If so, wouldn't the appropriate question have been not whether Judge Wood found the commercial funny, but rather whether controlled (laboratory) audience did?

Blogging Harriet to Death? Or, Why the President Should Be Nicer to His Aides.

Dan Solove at Concurring Opinions has a new post up on the effect of the blogosphere on Harriet Miers' nomination.  That post, along with many others, are collected by David Schraub in a must-read post.  Solove is particularly strong for the power of blawgs:

The fact that Bush still stands behind Miers is not an indication of the blogosphere's failure. The blogospheric reaction certainly has the Administration reeling. The blogosphere has registered the dislike for the nomination in a much more potent and articulate way than a mere poll.

I don't really believe this claim, although it sure is tempting to think that posts here at Prawfs and elsewhere are partly responsible for a really bad mood at the White House:

"He's like the lion in winter," observed a political friend of Bush. "He's frustrated. He remains quite confident in the decisions he has made. But this is a guy who wanted to do big things in a second term. Given his nature, there's no way he'd be happy about the way things have gone."

Bush usually reserves his celebrated temper for senior aides because he knows they can take it. Lately, however, some junior staffers have also faced the boss' wrath.

But really, I tend to think that Internet or no, Miers' nomination was fated for trouble.  All of the ingredients were present: (1) nominee close to a politically weak president; (2) with more-vulnerable-than-average paper credentials; (3) beset by possible ethical problems back home; (4) with no constitutional paper trail; and (5) no real base of support in D.C. or regionally.  The internet-effect goes to the timing of the trouble - now rather than at the hearings - and, perversely, this is probably good for the President. 

At least in today's world, there is a chance that Miers will withdraw prior to the hearings, preventing political pain before most Americans begin paying attention to the nomination.  And let's not forget: most Americans have learned very little about the nomination thus far, because most Americans have better things to do than read her judiciary questionnaire, read any of the ten thousand and one posts on that and other topics, or surf the electronic futures market predicting her chances.  For example, there are still hundreds of thousands of Americans displaced by hurricane katrina, some of whom recently faced the agonizing decision of whether and how to declare personal bankruptcy ahead of changes caused by the new legislation.

If none of this information had come out until the hearing, under the krieg lights and before the American people, then the President could be faced with problems similar to those his father was forced to confront during the Thomas nomination.  (Imagine, by the way, what that process would have looked like today.  Would Justice Thomas have withdrawn under blawgospheric fire?  Would there have been attacks like those directed at Miers?)  So, even though the President may be cranky, it could be (and could get) a whole lot worse.

Today's Miers News

A quick note on today's Miers news.  Many bloggers, true to exuberant form, have speculated about exit strategies for the Meirs nomination, often quickly descending into broad assumptions and quasi-conspiracy theories about the White House's quiet cooperation in killing the nomination.  I tend to assume that the President is loyal to his nominee and won't quietly tank her nomination.  But I will note that a bipartisan request for documents relating to Miers' work in the White House, followed by an adamant refusal to provide those documents, does provide the basis for a nice, procedurally rather than substantively based no vote or regretful withdrawal of the nomination.

Senator Hutchison and the No Big Deal Strategy

Today's fun story on the leak investigation in the Times is on whether the GOP is quietly circulating talking points and beginning to prep a message that any charges that might arise from the work of special counsel Fitzgerald.  Maybe so; I can't say.  But I did enjoy Senator Kay Bailey Hutchison's remarks on Meet the Press, where she compared the leak investigation to the Martha Stewart case, in which Stewart did not break the law in her underlying conduct but did so in lying to law enforcement officials about her conduct, and said she hoped "that if there is going to be an indictment that says something happened, that it is an indictment on a crime and not some perjury technicality where they couldn't indict on the crime and so they go to something just to show that their two years of investigation was not a waste of time and taxpayer dollars."

Alas, by the time I got around to blogging on this, some guys had already started a blog and posted on the issue.  But their speed came from the fact that they figured it was enough to note that Senator Hutchison voted to convict President Clinton for perjury in the impeachment proceedings; some argued, of course, that his lies were too trivial to sustain a charge of perjury or, if they did sustain the charge, too unrelated to his conduct in office, to sustain impeachment.  That alone, I think, doesn't really settle the issue.  But my extra hours of work on your behalf, dear readers, also yield this -- Senator Hutchison's statement in support of her impeachment votes.  Excerpts follow:

"Lying is a moral wrong. Perjury is a lie told under oath that is legally wrong. To be illegal, the lie must be willfully told, must be believed to be untrue, and must relate to a material matter....[If] President Washington, as an adult, had been warned not to cut down a cherry tree, but he cut it down anyway, with the tree falling on a man and severely injuring or killing him, with President Washington stating later under oath that it was not he who cut down the tree, that would be `perjury.' Because it was a material fact in determining the circumstances of the man's injury or death.  Some would argue that the President...should not be impeached because the whole thing is about a cherry tree, and lies about cherry trees, even under oath, though despicable, do not rise to the level of impeachable offenses under the Constitution. I disagree.  The perjury committed...was an attempt to impede, frustrate, and obstruct the judicial system in determining how the man was injured or killed, when, and by whose hand, in order to escape personal responsibility under the law, either civil or criminal. Such would be an impeachable offense. To say otherwise would be to severely lower the moral and legal standards of accountability that are imposed on ordinary citizens every day. The same standard should be imposed on our leaders...Willful, corrupt, and false sworn testimony before a Federal grand jury is a separate and distinct crime under applicable law and is material and perjurious if it is `capable' of influencing the grand jury in any matter before it, including any collateral matters that it may consider...The President's testimony before the Federal grand jury was fully capable of influencing the grand jury's investigation and was clearly perjurious."

With Senator Hutchison's statement in front of me, it is hard to reconcile her statement during the impeachment proceedings and her comment on Meet the Press.  If someone lied to the grand jury in a way that was capable of influencing the grand jury on any matter before it, including collateral matters, then I would have thought Senator Hutchison would not call this a "perjury technicality," but a "moral" and "legal[ ] wrong."  Period.   

Part VI

Not to indulge in phony, cyber-irenicism, but I think Hillel and I are (pretty much) in agreement (So, why the six-part exchange? ed.):  That is, I suspect that the various teases put out by the Administration and others about Ms. Miers's pro-life views and her evangelical faith (I was intrigued, by the way, by the recent revelation that she was not, as has been widely reported, brought up Catholic) are, as he says, aimed primarily at political conservatives for whom the main concern is "abortion is wrong" and not "Roe v. Wade was wrongly decided."  And, Hillel is probably right that -- when we are talking about most of our fellow citizens -- "it is plainly the case that many conservatives begin with the assumption that abortion is wrong, and then assume that the Constitution must be interpreted in that fashion."  (And it is also the case, as I'm sure Hillel agrees, that many liberals and progressives make the same kind of assumptions and moves).

Finally, Hillel is not letting me evade his earlier question:

[D]on't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  Please note that this question was prompted by your intial challenge to me.  You wrote that you believe that "abortion is wrong," but you've made no statements about the legal question.

I think it is likely that many citizens who oppose abortion do assume that abortion's immorality supplies the reason why it may, legally, be regulated (that is, why Roe -- which, of course, few citizens have ever read -- is wrong).  By the same token, the view that abortion is a morally permissible choice, or a crucial feature of autonomy, supplies for many citizens who support abortion rights all the reason they need to support Roe.  That said, my impression is that very few conservative scholars, advocates, informed commentators, etc., conflate abortion's immorality with Roe's legal wrongness.

As for my own views, I believe that abortion is wrong, and that it should prudently be discouraged and -- to a greater extent than is permissible today -- regulated.  I am also convinced, wholly apart from the moral question, that the Constitution, properly understood, permits governments to discourage and regulate abortion in clear, non-arbitrary ways.  (This is not to say that the Constitution places no constraints on governments' ability to regulate abortion).  I like to think -- but, I suppose, I cannot be sure -- that this would be my view about the Constitution even if I were not convinced that abortion is wrong.

Thanks again to Hillel for the conversation.

New Personal Milestones in Teaching

One of my proudest possessions is a personalized autograph from Andy Hallett, who played "The Host" on the beloved, now-departed television show Angel.  It was obtained for me by one of my students at the University of San Diego's law school, where I was a visitor, and is inscribed, "Loved your Temple Law Review article about free speech!"  Needless to say, the student who got this for me was a personal favorite.

Now I come to discover that one of my current students appeared in a brief but crucial role on an episode of Angel!  These are the moments that truly make me proud to be a teacher as well as a scholar.  I don't think it could get any better -- unless I one day find myself prepping Alyson Hannigan for the bar exam.   

What. . . . Part V (are we there already?)

Thanks to Rick for engaging in this interesting (to my mind, at least) conversation.  I don't say "debate," because I actually don't think there is that much disagreement between us on this (these?) issue(s?).

I hope that Rick and the rest of you will indulge me for one last(?) time, as I make some comments in response to Rick's latest post.

First, I think Rick and I disagree on just who the Miers abortion/Roe signals are intended for.  Rick thinks that these signals are for "pundits, commentators, and law-types."  I hardly think so.  Pundits, commentators, and law-types surely do care about Roe, but they just as surely do not put the anti-Roe credential at the top of their list for what they want in a Supreme Court Justice.  The signals about her stance on Roe are sent to the very same people as the signals about her religious ideology.  Indeed, I think this is one reason that so many conservative "pundits, commentators, and law-types" are so angry about this nomination.  To them (and rightly so), it isn't all about Roe and religion, and their doubts about Miers therefore aren't assuaged by "reassurances" regarding her anti-abortion bona fides.  Indeed, that's why they supported Roberts, even though they can't feel secure that he will vote to undo Roe.  Rather, these signals are precisely for what Rick calls "persons-on-the-street" and politicians who answer to a particularly constituency.  It was this crowd that my initial post was directed towards.  They don't care about jurisprudence; they care only that abortion be curtailed, and hopefully banned.  And in that sense, they are guilty of whatever sin they charge liberals of.  My critique is that they've adopted the rhetoric of the principled conservatives, but they haven't adopted the substance.

Second, on the question of Roe specifically, I think it is plainly the case that many conservatives begin with the assumption that abortion is wrong, and then assume that the Constitution must be interpreted in that fashion.  As Rick himself points out:

For non-law-types . . . one's "views" on abortion are entirely reducible to one's "views" about abortion. 

That's who I am talking about.  I would hope that a national conversation on constitutional questions could be directed towards the, um, Constitution.

Finally, Rick, on the question of whether something deemed immoral should be deemed illegal, I don't think you quite answered my question, at least not entirely.  Let me repeat it: don't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  Please note that this question was prompted by your intial challenge to me.  You wrote that you believe that "abortion is wrong," but you've made no statements about the legal question.  And my point was just to highlight that those are two entirely different questions (though clearly one might bear on the other).

And finally a question for readers (who should feel free to chime in on anything else we've said): Do you like ongoing debates among us prawfsblawgers in this format?  Should we do it more often?  Not at all?  Are there topics you'd like to see covered?

What does . . . , Part IV

Thanks to Hillel for answering my question about Miers, Roe, proxies, and results-oriented-ness.  Hillel asks if I mean to propose and endorse the following:

Although this correlation [i.e., between opposing abortion and believing that Roe was wrong] exists, we also ought to assume that one's position against Roe is purely jurisprudential and from a different source than her opposition to abortion generally.

I didn't intend to claim that we "ought to assume that one's position against Roe is purely jurisprudential[.]"  My claim was (intended to be) more limited (and less interesting):  "It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.   It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong." 

Like Hillel, I do not think I know enough about Ms. Miers to be confident that her opposition to Roe does not depend on her moral opposition to abortion.  But I do think that "conservatives" who are making the move from "Miers opposes abortion" to "Miers thinks Roe was wrong" are not (necessarily) guilty themselves of "confusing policy preferences with jurisprudence."

Hillel also observes: 

I don't for a moment believe that the majority of the people who are interpreting these signals ("she favored a constitutional amendment, so she must want to overturn Roe") have put much thought into these questions either.  Many of them oppose Roe simply because they believe that abortion is wrong.  And that's the very same thing they accuse liberals of, except in the reverse.

I'm not sure.  My own impression -- which could be wrong, of course -- is that the pundits, commentators, and law-types who are "interpreting these signals" actually do believe that Roe is wrong as a matter of constitutional law and not just because abortion is wrong.  (I'm not talking here about politicians or even persons-on-the-street.  For non-law-types, I imagine that -- on both sides -- one's "views" on abortion are entirely reducible to one's "views" about abortion).  What's more, my impression is that there is actually more "separation" between views on abortion and views on Roe among those who are anti-abortion than among those who support abortion rights.

Hillel asks, "Don't many [conservatives] start with the proposition that abortion is fundamentally and morally wrong, and therefore it can't possibly be protected by the Constitution?"  I don't think so, actually.  In my own experience (which certainly could be unrepresentative), anti-abortion critics of Roe concede that the Constitution, properly understood, insulates many "morally wrong" actions from government regulation. 

In any event, though, Hillel and I agree entirely that "conservatives should be careful to note that the question of whether [conduct] is immoral or bad is different from the question of whether it ought to be legal[.]"  I am cheating a bit, I know, and editing "abortion" out of Hillel's question.  This is because it could be that the reason why abortion is immoral (if it is) serves also as a stronger-than-usual reason why it should be (generally) illegal (cf., e.g., lying to a friend).  But, as a general rule, I am happy to agree -- indeed, I believe strongly -- that the law need not, and should not, prohibit every vice or require every virtue.  Thanks, Hillel!

What has one got to do with the other?, Part III

In response to my earlier post, Rick makes a provocative point.  He writes:

It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.  It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong.  I would hope that all those who believe -- as I do -- that abortion is wrong and that Roe was wrong would also want an anti-Roe Justice to have reasons for her position other than "abortion is wrong."  What do you think, Hillel?

If I understand correctly, Rick's response consists of two moves: 

1. There is obviously a correlation between one's position on Roe and one's position on abortion, at least (but probably not only) if one is against abortion.  That is, it is reasonable to assume that one who is against abortion is also against Roe.  Therefore, once we learn that Miers favored an amendment banning abortion, we can have some confidence that she would also vote to overturn Roe.
2. Although this correlation exists, we also ought to assume that one's position against Roe is purely jurisprudential and from a different source than her opposition to abortion generally.

Do I have that right, Rick?

I have no beef with the first point, since it seems plainly correct.  But the second point is more troublesome.  There's no reason to believe that Miers has any jurisprudential views on Roe apart from her political/religious instincts.  Would she overturn Roe based on a commitment to majoritarianism?  Federalism?  Original intent?  Original meaning?  Contextualism?  Or perhaps she believes that a fetus is a person, and that it is therefore entitled to equal protection and due process, which abortion denies it?  Does she have any Casey-like positions on the value of precedent?  Has she thought about the Equal Protection and Establishment Clause arguments in favor of abortion rights?  We have no clue what she thinks about these questions.  Worse, we don't have any evidence that she has even thought them.

Further, and more important in the context of my original post, I don't for a moment believe that the majority of the people who are interpreting these signals ("she favored a constitutional amendment, so she must want to overturn Roe") have put much thought into these questions either.  Many of them oppose Roe simply because they believe that abortion is wrong.  And that's the very same thing they accuse liberals of, except in the reverse.

Let me see if I can put it another way.  Many liberals argue that abortion rights must be in the Constitution, because it is simply fundamental that a woman has control over her body and her procreative rights.  That kind of reasoning is, of course, question-begging and basically backwards.  And many conservatives rightly (no pun intended, unless you think that's funny, in which case, pun intended) call these liberals on it.  But don't many conservatives make precisely the same mistake?  Don't many start with the proposition that abortion is fundamentally and morally wrong, and therefore it can't possibly be protected by the Constitution?  And isn't that the same mistake?

In the end, I think that the signal is probably a reasonable one--someone who wants to amend the Constitution to ban abortion is also likely to overturn Roe if given the chance--but I don't think most people are making the distinction that you are between the political question and the jurisprudential one.  Am I wrong?

Now to turn the tables a bit on you, Rick, with a question from left field:

I agree that many liberals who support abortion rights conflate the policy issue with the jurisprudential one.  But don't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  That is, just as liberals should be careful to note that whether abortion rights are good is different from whether Roe is good (or properly reasoned or properly decided), so too conservatives should be careful to note that the question of whether abortion is immoral or bad is different from the question of whether it ought to be legal?  And don't you think that these questions are often conflated on the right, Rick?  (Anyone else can please feel free to chime in, of course.)

Law School Reunions

Just back from another return to the kennel, where the osita and I spent a couple days seeing old classmates for my 5th year reunion from law school.  Of course, barely a few hours into our trip, which began with a tasting tour of the North End, we ran into our closest Florida friends--and that invariably led to Karaoke at the Kong downtown.  Pure kismet.  Anyway, a few observations.

Unsurprisingly, friends are already running for office; all I can say is that as a Canadian, I take great solace in being prevented from contributing to campaigns.  Not sure how long that excuse will last, but in the meantime, I'm enjoying it.  Speaking of fund-raising, I frankly wonder how difficult it will be for HLS to shake alumni for future pelf  in light of the stunning renovation of Hemenway gymnasium detailed in this article.  One student astutely realized, "We law students are now officially spoiled."  Granted, the facility beforehand was dumpy--but it did confer character (if not asbestos exposure) upon its prior denizens.  Now, of course, alums will have nothing but love for the place.  Still, no foe of paternalism, I'm earmarking my prospective donations to financial aid.

The weekend's highlight was the dinner and dance held Saturday night at the Hyatt Regency.  To the great surprise of our dj, most of the 75 attendees -- spurred on by the feisty international LLM's who came from Brazil, France, Venezuala, Argentina, etc. -- actually got up (down?) and boogied.  Upon seeing the spectacle, one wag noted that "watching Harvard law school classmates dance at a reunion is a lot like watching your parents make out -- you just prefer not to think that it even happens."  The foreign LLM's were, to my mind, the real inspiration.  They came to Harvard for only one year and appear to have the most loyalty of any group of alumni I've met so far. I wonder if there's some connection there: do shorter periods of law school attendance conduce to greater fondness for the institution? Maybe Dayton is on to something with its two year degree program. 

On Publishing and Perishing

The Times' Book Review has a funny account of publishing a book and watching it not sell.  There are obvious corollaries with academic book publishing.  Here's a taste:

For any writer, the publication of a book, labored over for years, is an exciting event. But excitement is a fleeting emotion, and the business of publicizing the book, so that it sells and the author can earn out his advance, quickly displaces any initial euphoria. The writer then embarks on a tortured journey toward acceptance of the fact, several months after publication, that his book isn't going to vault him into the empyrean of fame, or even improve his life. At the intersection of Elisabeth Kübler-Ross's stages of grief and Stendhal's stages of love, the contemporary author trudges along a predictable path that can only be described, in hindsight, as self-induced misery.

The only stage the author misses (though she captures "The Fog of Love," "The Big Suck-up," and "What About Oprah?" very nicely) is the "Start a Blog Thinking it Will Boost Your Sales" phase.

"What Has One Got to Do with the Other?", cont'd

Hillel notes his concern that Ms. Miers's opposition to abortion (that is, her past support for the Human Life Amendment) "is being used as a proxy for her likely vote on Roe v. Wade."  He asks:

Conservatives have always chided liberals for confusing policy preferences with jurisprudence; indeed, this is one of the biggest knocks on Roe.  But to the extent conservatives take the cue about a nominee's likely votes on jurisprudential questions from her policy views, aren't they doing the same thing?

I don't think they are (doing the same thing).  Or, at least, they might not be.  It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.  It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong.  I would hope that all those who believe -- as I do -- that abortion is wrong and that Roe was wrong would also want an anti-Roe Justice to have reasons for her position other than "abortion is wrong."  What do you think, Hillel?

On Why Not Predicting SOC's Retirement Made Me Look Like a Fool

I have just uploaded my "Ugly White Districts: What Should Sandy Do?" to SSRN here; it was a solicitied contribution to Volume of 7 of the Journal of Law & Social Challenges, which has just appeared.  When I was solicited, it seemed reasonable to try to offer a proposal for how Sandra Day O'Connor (a.k.a. "Sandy") should direct lower courts in analyzing ugly white districts, as she has directed courts in how to handle ugly black and minority ones. 

I feel sort of silly now, of course.  To be sure, courts continue to have to struggle with ugly white districts--and very few scholars or courts have devoted any attention to them even though they are all over the redistricting maps.  Still, targeting the article to Sandy's jurisprudence seems like a huge miscalculation.  Oh well, the publishing cycle is what it is.

Beware the Hair

Yikes.  Remind me not to trust the Donald when he says he's my "good friend".

Of course, Mr. Trump has had troubles beyond his ratings slide.  But you can get Mr. Trump's great real estate advice for the low low price of $179 -- or, $299 if you want the VIP weekend pass!  And you get to see George Foreman, too!

I Hope You're not Reading this in the Office

As a lawyer and information privacy specialist, I am well aware that I basically leave my privacy at the workplace door. But a recent article in the November issue of Mother Jones magazine confirmed my worst suspicions regarding the lack of workplace privacy. The magazine includes a revealing piece titled, “The Surveillance Society: Who's Zooming in on You?” It includes a number of jaw-dropping statistics regarding government and corporate surveillance (for example, did you know that there are 15,000 surveillance cameras in Manhattan?), including statistics on the extent of workplace surveillance. According to Mother Jones, the percentage of companies that monitor employees’ web site connections is 76%; e-mail -- 55%; activity via video camera -- 51%; time on the phone -- 51%; computer file content -- 50%; time on the keyboard -- 36%; phone calls -- 22%; and voicemail -- 15%. It has always been the case that employees face an uphill battle in any wrongful termination suit or employment discrimination suit against their employer. However, with the evolution of technology and the prevalence of workplace surveillance, the likelihood that an employer can turn up a piece of dirt on any and every employee if they so choose has increased exponentially. For many Americans, work is a fundamental part of our lives and we spend a great deal of time in the office. The idea of being monitored so completely for so many hours a day is disconcerting to say the least. Of course, I am not arguing that employers don't have the right to engage in some degree of employee monitoring, but perhaps we as a society need to rethink the notions that employees should give up virtually all privacy when they come to work and that they should expect that  every action, every motion, and every phone call is being monitored or recorded.

The Unbarking Dogs of the Legal Academy

Much has been written on the Democrats' strategy on the Miers nomination.  For the most part, the Democrats are remaining silent on the Miers nomination, figuring that Republican fratricide will do them more good than Democratic involvement.  Moreover, given her thin record, they are unsure whether Miers will prove to be a more moderate Justice than President Bush has hoped, and less effectively conservative than other conservative prospects for the Court with proven track records.

To my mind, this puts the Democrats on the wrong side of the questions of consistent principle that ought to govern a nomination to the Supreme Court.  I have written that senators are always free to vote against a nominee on the basis of their views on how the nominee would eventually vote -- although I don't think this vote should be prettied up by efforts to paint such nominees as "outside the mainstream" and so forth.  But the absolute quality of a nominee ought to be a factor in approving or disapproving a nominee, in my view, and if it is fair to suggest that Miers is not a strongly qualified nominee -- if, for instance, Bill Stuntz is right to say that Miers' writings suggest that she has "very few ideas and no particular skill at expressing them" -- then Democrats interested in a strong Court ought to oppose her nomination regardless of whether she might be ideologically preferable to other nominees.  Therein lies the Democrats' dilemma -- actually, a double dilemma.  1)  They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives.  2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.  My tentative view on the first horn of the dilemma, and my firm view on the second, is: too bad, so sad.  The Court is an important institution, it deserves to be staffed by the best people, and while a nominee's ideology is an important factor in a senator's vote, the nominee's quality ought not take a back seat.

What I find striking, though, about the public debate on the Miers nomination is the relative silence of so many folks who were out front in the Roberts nomination.  Specifically, where are the law professors?  A law professor, of course, puts fealty to principle above loyalty to party.  (Right?  Right?)  And if he or she thinks Miers is a mediocre pick, and otherwise is not shy about sharing his or views on other judicial nominees, then that professor certainly ought to be speaking loudly about Miers' comparative lack of merit as a nominee -- even if that dooms Democrats to the fate of a more qualified but more conservative Justice.  Yet it seems to me that many of the professors who were loudest in opposing Roberts have, like their confreres in the Democratic Party, been pretty quiet about Miers, and especially about her relative lack of qualifications for the Court. 

I think here especially of Erwin Chemerinsky, I must say.  Chemerinsky is, to be blunt, the bellwether for conventional liberal Democratic views of the Court and the Constitution.  His public views seem rarely to stray far from the party platform.  And he was quite vocal about the Roberts nomination.  Yet I find, in searching Nexis and Google, that he has been relatively quiescent as to the Miers nomination.  He has written just two op-eds on Miers, both of which focus on the importance of getting more information about her and neither of which take her on on the basis of qualifications; and he has offered some stray quotes to newspapers.  But he hasn't done much more than that, and it seems to me he was much more vocal about Roberts.  And where is the letter to the Senate on her lack of distinction as a nominee?

Perhaps I am being unfair to Chemerinsky, and commenters are free to say so.  (Let me add that I value his treatises and other scholarly work, and that my students are especially grateful for his treatise.)  Perhaps he thinks ideology is the only touchstone for a Court nominee, and that quality isn't that important a qualification.  But I would have expected him -- and other usual-suspect liberal law professors who frequently appear in the op-ed pages -- to be more vocal about Miers, and specifically about whether her record strongly qualifies her for the Court.  Am I right in thinking that their relative silence suggests they are taking the same strategic (not principled) tack as the Senate Democrats and cognate interest groups, with or without coordination with those folks?         

Miers Again

I do not support the confirmation of Harriet Miers.  As I have said previously, it is possible that she will prove her doubters wrong at her confirmation hearings (if this nomination gets that far); but based on her credentials and everything we yet know about her, I don't see any reason to expect her to do so.

Nevertheless, I am fairly disgusted by the portrayals of her in the media and among the punditry.  It is true that by allowing herself to be nominated she set herself up for some of the mockery.  But the truth is that this nomination reflects more on Bush than it does on her.  The nastiness that has been unloaded on a woman who seems perfectly intelligent, accomplished, dignified, and pleasant, is just uncalled-for.

Mind you, there's nothing wrong with a few jokes here and there at the expense of a public figure like Miers; it is certainly fair game to deride Bush for this nomination; and it is reasonable to question her suitability for the job.  But do we really need to make a sport out of this?  Have we no shame, no civility?

Indeed, although I intended my earlier post about her hyperbolic thank-you cards to be in the spirit of a quick joke, I now regret posting it; I do not want to be associated with the cackling chorus that delights in taking down a woman who does not appear to deserve it.

Her credentials, abilities, and suitability for the position (or lack thereof, as the case may be) ought to speak for themselves.  There's no reason to debase ourselves and embarrass her.

Bush's Next Move

So -- it looks like Miers' nomination may be coming to an end.  Who's next?  Does the president tack to the right and choose a Michael Luttig or Edith Jones?  Or, as revenge, does he pick someone even more moderate than Miers?  Any guesses?

What has one got to do with the other? Unfortunately, possibly everything.

Harriet Miers opposes abortion so much that she supports (supported?) a constitutional amendment to ban it except in the most narrow circumstances imaginable.  The problem is that this position is being used as a proxy for her likely vote on Roe v. Wade.

In a principled sense, one has nothing to do with another.  One can oppose Roe and support protection of abortion rights; and one can believe that overturning Roe would be improper and still oppose abortion rights.

Conservatives have always chided liberals for confusing policy preferences with jurisprudence; indeed, this is one of the biggest knocks on Roe.  But to the extent conservatives take the cue about a nominee's likely votes on jurisprudential questions from her policy views, aren't they doing the same thing?

Slate Ignores Me Twice in One Day

This is irritating

First, Emily Bazelon, writing about Harriet Miers' answers to the judiciary committee, twits the nominee for her venue answer without citing my earlier post on the same topic.  Gosh, if it is good enough for Malkin . . .

Then, Julia  Turner, writing the Slate Culterebox column, replicates my thank you notes post of last week.  Again, no acknowledgment.   Sure, she does it well, while I did it glibly, but still!

Where's the love, Slate?

Harriet Miers and the "Good for Business" Question

Is Harriet Miers a pro-business candidate?  Is she a business law maven?  Corporate law bloggers such as Gordon Smith, Stephen Bainbridge, Joe Miller, and Larry Ribstein have weighed in on the issue. 

I think it's important to separate out expertise from ideology here.  A nominee may have experience with and interest in business law matters but still be unacceptable to the Chamber of Commerce.  To analogize to constitutional law, whether a nominee is knowledgeable and experienced in constitutional law matters is a different question from whether she would overturn Roe v. Wade. 

As to expertise, I think that "business law"  covers a much wide ranger of subjects than constitutional law, and thus it is hard to say that one is an expert in business law.  After all, business law easily encompasses corporate law, securities law, contracts, bankruptcy, insurance law, labor and employment law, pension & ERISA law, and commercial law.  Subjects like intellectual property, products liability, environmental law, real estate law, and health law are of critical importance to businesses.  Even areas like administrative law and international law involve questions with significant business impact.  (WTO, anyone?)

Moreover, beyond a few basics, it's hard to say what a "pro-business" legal ideology would be.  Sure, it might be easier to ascertain what a Chamber of Commerce nominee would support, but the Chamber of Commerce does not equal "business."  Of the seven cases that Harriet Miers argued on appeal, three involved a business against another business (e.g., Disney v. Esprit Finance).  In these cases, which outcome was "pro-business"?

To me, Harriet Miers doesn't look like a pro-business nominee; she looks like a big-law-firm nominee.  There's a difference.  Big law firms are likely to cater to big, institutional clients on a variety of matters.  To generalize a bit, they bill by the hour, spend a lot of time and attention on matters, and prize their client relationships.  They are influential in local and state bar associations.  They may like business, but they like the practice of law as well.  So in the areas that a wide range of businesses might most be looking for help -- tort reform, damage caps, harsher pleading requirements -- a big-firm nominee (with ABA leadership experience) might feel a twinge in restricting or limiting the role of lawyers in the process.

If you asked Harriet Miers whether she was more favorably inclined towards business or towards the practice of law, I think she'd favor the lawyers.  She was a state bar association president.  She's run a government agency.  She's never been a general counsel or run a business.  Her litigation experience is the type of experience that a big firm attorney would have. 

Harriet Miers may have more experience as a corporate litigator than her fellow justices, and thus would come to the job with that additional array of experiences.  It's too simple, though, to say that she is a pro-business nominee. Once she's recognized as a big-firm nominee, the plethora of other potential candidates becomes clear.

Learned Hand to Ronnie Dworkin: F*** you

In recent years, even after John Sexton stepped down (up?) from NYU's law school deanship to assume NYU's presidency,  NYU has endured repeated drubbings from Brian Leiter and others for its rampant Sextonism.  But Sextonism, which is the hyperbolic puffery about a school's place in the world, is distinct from law porn -- the phantasmagoria otherwise experienced as the onslaught of glossy brochures sent by various law schools to every faculty member in the country during what Paul Caron calls the US News Silly Season.  (Caron and Bernie Black believe it was Pam Karlan who coined the term law porn, and Leiter who spread the meme.) 

Various people oppose not only Sextonism, but also law porn, because it so often encompasses Sextonisms.  It's important to keep them distinct though.  Not all law porn is pernicious exaggeration;  as Vic Fleischer reminds us with his qualifed defense of law porn, some degree of law porn may be desirable because it facilitates law school branding, e.g., Yale is for squishy theory, and Chicago is for law and econ. 

Branding, shmanding.  Sometimes, I say, law porn should be embraced simply because it titillates the mind.  Unsophisticated as this defense might be, what prompted this post is that I have spent substantially more than an hour enjoying the very law porn produced by NYU.  As some of you have probably seen, Dean Revesz's minions recently sent out a substantial NYU Law magazine with a focus on its law and philosophy offerings.  The cover story is a lengthy profile of Ronald Dworkin by Adam Liptak, the NYT national legal correspondent.  Regardless of whether you like his work, there's no question that a profile of Dworkin promises to be interesting, even if a bit odd at times (e.g., the photo of Dworkin, the great egalitarian, sailing on the waters off of Martha's Vineyard, where he keeps his third home). 

Indeed, Liptak's profile, which, sadly, is not yet online as far as I can tell, contains the gem of a story recounted by Dworkin about his clerkship with Learned Hand, then 87 years old.   During the clerkship, Hand was busy crafting his Holmes Lectures to be delivered at Harvard.  Hand wanted to push his thesis of judicial restraint -- to the effect that "due process and similarly vague constitutional phrases were essentially unreviewable by the courts," in Gerald Gunther's words.   Dworkin kept saying to his boss that the implication of Hand's thesis would be that Brown v. Board was wrongly decided, a position Hand was loathe to assume in public.  They argued and argued about whether Hand was ducking the issue in the lectures' draft, until Hand said to Dworkin: "Fuck you."  Dworkin described Hand at that moment as having steam come "out of his eyebrows, and he grabbed his yellow pad, and he started to scribble, and he started throwing away and throwing away and throwing away."  Hand, according to Dworkin, "finally in a way ... adopted my view.  But it wasn't the outcome I wanted, because I wanted him to give up his theory."  Speaking of Hand, Dworkin said, "I disagreed with everything he said but he was a very good person to have to argue with."

Sure sounds like it.  In any event, the rest of the issue is actually worth reading in, if not reading through.  And for those who are interested in some of the lore of law and philosophy, the issue has some other treats, in addition to some of the usual pap one expects in law porn at its finest, including several pictures of New York's Most Beautiful Brainiac.   Upon finding out his newest title, Noah had a good quip: it's like being the "tallest mountain in Missouri."

Prawfsblawg: where we really read law porn for the articles, so you don't have to.