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Saturday, July 23, 2005
Is there a vacancy on the Court until Justice O'Connor's resignation is effective?--
At Bench Memos, there is an interesting discussion of whether the Senate can confirm Justice O'Connor's replacement until her resignation is effective. Matthew Franck writes:
Ed Whelan speculates about the effects of a delay in Judge Roberts's confirmation, and along the way he notes that Justice O'Connor's "resignation is effective only upon her successor's confirmation." I'm not sure that is altogether true. It may be what O'Connor said, but that doesn't make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here's what I conclude from it.
O'Connor's July 1 letter to President Bush declared that it was "to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor." If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts' confirmation were delayed or defeated —- or even if Bush gave Roberts a recess appointment, since that would lack "confirmation" —- then O'Connor has created a classic Catch-22.
Here's why. Title 28 of the United States Code, section 1, reads: "The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." Article II, section 2 of the Constitution tells us that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O'Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush's nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O'Connor has been pulling our legs and isn't leaving the Court after all. What a fun three weeks we've all had for nothing!
But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O'Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O'Connor's words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she's off the bench, and has been since July 1. I never thought Justice O'Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.
Ed Whelan thinks there is no problem, so long as there is a vacancy when Bush makes the appointment, which there would be since O'Connor's resignation is effective at confirmation.
There is another argument to be made: precedent. Chief Justice Earl Warren announced his resignation in 1968 (with the hope that LBJ would be able to replace him), to be effective when his replacement was confirmed, which didn't happen until June 23, 1969. So Warren officially resigned the same day that CJ Warren Burger was sworn in.
Franck argues that O'Connor has been off the bench since July 1. With Warren having served for essentially a full term after having tendered his resignation, I think that O'Connor would be allowed to serve until her replacement is confirmed, whatever one thinks of the merits of Franck's statutory analysis.
UPDATE: Among the bloggers who have linked to this are Tom Smith at the Right Coast and Armen at DeNovo. So far I'm sticking with my original position — that the Earl Warren precedent would govern, that a justice may resign contingent on his or her replacement's confirmation.
Yet I would expect that this problem must occur with other presidential appointments, so there should be a substantial number of non-judicial precedents that might push the answer strongly one way or the other.
Friday, July 22, 2005
Frye rule in New York:
New York courts continue to be leaders in applying the Frye general acceptance test broadly to all sorts of expert testimony. While the Court of Appeals has not yet spoken, New York may be the strictest Frye jurisdiction in the country, applying Frye about as strictly as federal court apply Daubert.
"I'll Bet You Thought This Post Was About You":
Althouse has this cryptic post, which prompted a Commenter on her blog to utter the phrase in the subject line.
Which reminds me of a joke I heard a comedian (do we still use the term "comedienne"?) tell once. She was observing that with the song "You're So Vain" Carly Simon was really putting Warren Beatty in a bit of pickle. Once the song comes out, he has two choices--either he can admit that he is, in fact, so vain that he probably "thought the song was about him." And if he doesn't admit it, then Carly is going to write a follow-up song for the next album, "You're so stupid, you didn't even realize the last song was about you." Either way, he's stuck.
Update:
I had always understood that this song was about Beatty, but as noted in the Comments, apparently Carly Simon has never actually verified this. According to this, she has officially denied that it was James Taylor.
Criminal Mischief:
Not your typical, everyday charge of "criminal mischief":
PITTSBURGH -- Police have flagged a man for an illegal quarterback sneak.
Authorities said Brian Jackson, 31, dated two women by pretending to be Pittsburgh Steelers quarterbacks Ben Roethlisberger and Brian St. Pierre.
Jackson, arrested Friday, was charged with harassment for allegedly continuing to contact both women after they learned of the ruses. He was also charged with criminal mischief for allegedly ruining a Steelers jersey owned by one of the women's neighbors when he signed his worthless rendition of Roethlisberger's autograph on it. The jersey was worth $75 before it was signed, police said.
Here's the interesting legal theory in the case--by signing the jersey with his worthless "autograph" he ruined a $75 jersey, thereby giving rise to a criminal mischief charge.
The Pittsburgh Post-Gazette adds:
He's not 6-foot-5. He's not 23. He doesn't wear No. 7. And he doesn't have a goatee. In fact, Brian Jackson doesn't resemble Steelers quarterback Ben Roethlisberger in any way.
What I want to know is who is this supposed Stiller fan who owns a Roethlisberger jersey--but doesn't even know what Roethlisberger looks like?
New NBA Minimum Draft Age:
Mike McCann at Sports Law Blog has an interesting chart and some reflections on the new NBA minimum draft age, looking specifically at patterns of NBA players getting in trouble with the law (a proxy for personal maturity). Mike has been critical of the NBA's decision to raise the draft age with the intent of excluding kids from going straight to the NBA out of high school and his evidence presented here makes a pretty strong case.
His conclusions:
First, college education does not appear to diminish the probability of a player getting in trouble with the law.
***
Second, players appear more likely to get in trouble with the law towards the middle and end of their careers than at the start.
***
No matter the interpretation, it doesn’t appear that the recent decision by the NBA and NBPA to raise the age of NBA draft eligibility from 18 to 19 (or one year out of high school) will improve the overall law-abidingness of NBA players. If anything, actually, this data suggests that it might have the opposite effect.
My view is that raising the draft age by one year will likely just increase the corruption in high school and college basketball. If I had to predict, I suspect that the response will be to just increase the bidding among the Oak Hill Academy-type programs for players to do one year of prep school or for lower-ranked schools to try to grab guys for one year. Either way, I suspect that the corruption in the system is likely to increase.
Overall, I think that raising the draft age by one year will likely have some serious unintended consequences. They may have either been better off keeping it the same and allowing high schoolers to go straight to the pros or moving to an NFL-type system where kids actually have to commit to college for a few years. The current compromise seems like the worst of all worlds.
"Estradification":
In the spirit of confirmation battles spawning a new lexicon (e.g., "Borking") the Washington Times reports today on what some Republicans are calling "Estradification"--requiring the Justice Department to turn over internal legal memoranda written by Roberts while he worked in the SG's office. The refusal by the White House to surrender these sorts of documents was the basis for the Estrada filibuster (hence the name) as well as the current Bolton stalemate.
Regardless of the merits of the request, it seems highly unlikely that the White House will surrender these documents. The tone of the article suggests that even though the request held up a vote on Estrada (which was much lower profile), few seem to believe that the refusal to turn over these documents would support a filibuster on a Supreme Court nominee. I haven't followed the exact nature of the Bolton request closely enough to say whether what is being requested there is similar to what may be requested here and in the Estrada situation. So far, it looks like this has not come to a head, so it could turn out to be a non-battle.
Personally, the request for internal Executive Branch documents for judicial confirmations always seemed like a bit of stretch to me. It also seems like it would be a stretch to me to request draft opinions and other non-public deliberation papers from Roberts's time as a Circuit Judge, as opposed to published opinions. The major problem in both situations, of course, is the institutional harm that such requests would have on the internal deliberations of the Executive or the Judiciary if people knew they could come out later.
I looked around a little bit, but I haven't found any legal commentators who think that requesting these sorts of documents is appropriate. During the Estrada filibuster seven former SG's of both parties spoke out against these requests and the use of the filibuster in relation to it. If someone has identified a persuasive argument as to the propriety of requesting these internal memoranda, please note it in the Comments. Overall, my impression is that this is one of those places where there is fairly uniform agreement that it seems like a bad idea to go there. But it may be that someone out there is making the argument and I just haven't come across it.
So my sense is that this issue likely won't reach escape velocity in terms of leading to a filibuster, but it may be one stealth technique that is on the table to try to combat what so far seems to be pretty successful stealth nominee, especially because it did seem to work on Estrada and so far seems to be successful on Bolton. If the request is not made, however, then that seems to create problems of its own, as then it seems to raise the question of why the failure to turn over those documents was definitive in the Estrada (and perhaps Bolton) situation, but is not requred for Roberts. So the question is whether the refusal to surrender the documents in this case would be prejudicial to the Democrat's request to surrender those documents in the other cases and their willingness to filibuster nominations where the documents are not produced. But perhaps there's a difference between what is being requested in the various cases that supports a filibuster in one instance but not the other.
Update:
Several people in the Comments have clarified that the Bolton situation (which, as I noted, I haven't followed the details that closely, but was mentioned in the Washington Times article) can be distinguished from Estrada (and presumably Roberts). So I have stricken the Bolton references in the post.
Roberts on the NewsHour:
On July 3, 1997, John Roberts participated in a panel discussion of the recently completed Supreme Court term on the PBS NewsHour with Jim Lehrer. The transcript is here, courtesy of Jack Lewis. When asked whether the Supreme Court was conservative, he offered the following response: Well, I think it’s a moderate court but one that is very serious about the limits it sees in the Constitution, whether it’s the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it’s a court that doesn’t seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that’s a serious flaw.
"Public" Arbitrator:
A good friend of mine, a plaintiff's lawyer, tells me that he thinks one of the biggest problems with NASD arbitration is that the "public arbitrators" rarely represent the public, and, indded, they often have ties of various sorts to the securities industry. Putting intentional bias aside, such associations can certainly skew one's perspective. (E.g., I've met several individuals over time who are very liberal on just about every issue except employment law, because they represented defendants in employment law cases and gradually adopted their clients' perspectives on these cases. It's hard not to; I've seen respected attorneys sincerely spout absolute drivel, because they became mentally so attached to their clients' position.)
NASD panels are supposed to be composed of one "non-public" industry representative and two public arbitrators. The NASD has new rules trying to decrease the public arbitrators industry ties. The rules, among other things, "Exclude from the public arbitrator roster attorneys, accountants, and other professionals whose firms have derived 10 percent or more of their annual revenue in the previous two years from clients involved in the securities-related activities."
However, there is no requirement that the "public arbitrators" individually not receive all or most of their own business from such clients. Thus, the law firm bio for the ["public arbitrator"] chairperson of my arbitration panel states that his assignments "have included representation of a defendant in civil, criminal and administrative proceedings arising from The Wall Street Journal insider trading case, a major utility in securities class actions arising from the Three Mile Island incident, issuers and underwriters in securities class actions arising from public offering or trading of securities, banks in letter of credit litigation and other matters and insurance companies in construction of policies."
So, under NASD rules, a "public arbitrator" can, for example, spend his entire career representing defendant corporations in securities law cases, so long as his firm does a lot of other things. But a plaintiffs' employment attorney whose firm happens to do ten percent of its business in municipal bond underwriting could not be a public arbitrator. Bizarre, no?
In my father's case, he did not get any of the individuals he requested as arbitrators, so the arbitrators were chosen by NASD. A reform suggestion: the NASD should train individuals, some lawyers, some not, with no ties to plaintiff's or defendants, in securities law, and have these neutral individuals serve as arbitrators, picked randomly from a pool.
Roberts Files Dissent in United States v. Jackson:
Judge John Roberts filed a dissent in a Fourth Amendment case today that is pretty interesting as an example of his style as a jurist. The case, United States v. Jackson, is very fact-specific: the only issue is whether the facts of a particular traffic stop amounted to probable cause to search the trunk of a car. Judges Judith Rogers and Harry Edwards, two of the more liberal judges on the D.C. Circuit, said no. Judge Roberts said yes. On the merits of the probable cause determination, my own sense is that this was a pretty close call. Based on current law, I think Roberts was probably right. At the same time, the doctrine calls for a judgment of probabilities, and reasonable people with different experiences can disagree. In this case, the defendant was driving a car with stolen tags and the license plate light out. He didn't have a driver's license on him, and his license was suspended. The police tried to find a registration for the car, but found no evidence the car was validly registered. The police arrested the defendant, and then — and here's the tricky part — they searched the trunk of the car, and found a gun. The defendant was then charged with a gun possession crime. The legal question is, at the time that the officers searched the trunk, was there a fair probability that there would be additional evidence in the trunk? In the majority opinion, Judge Rogers says no — it's just pretty unlikely that there would be additional evidence of the crimes the police knew about at the time of the search. Judge Edwards concurs, offering his own sense of the low likelihood that there would be evidence in the trunk, and adding in some rather grand rhetoric about the importance of upholding the Fourth Amendment. In his dissent, Judge Roberts argues that the common sense of the facts created a fair probability that some kind of evidence would be in the trunk of the car. The situation at the traffic stop was pretty darn suspicious, he notes, suspicious enough that there was a pretty good chance evidence of crime would be in the trunk. The officers had pretty good reason to believe the car was stolen, for example — it was, as it turns out — and if it was, some kind of evidence of who owned the car and who had stolen it would probably be in the trunk. Given the facts of the situation, the officers were justified in looking there. What is particularly interesting about Roberts' dissent is its style. He uses a number of techniques to emphasize that this is a fact-bound common-sense inquiry, not a question of high theory. For example, at one point he uses humor to break through the formal reasoning and draw attention to the common sense of the situation: Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action. He makes much the same point through a citation to Holmes: The majority doubts the rationale for replacing a stolen vehicle’s real tags with stolen tags and therefore discounts the inference that the car might have been stolen. Op. at 10. But lawyers learn early on that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Officer Garboe’s history with stolen tags had confirmed that they, more often than not, led to real tags in the trunk. The reported cases confirm that criminals often use stolen tags on stolen cars. This history is enough to support the officers’ inferring from the stolen tags and the lack of any registration (current or expired) linking Jackson to the car that the car might well have been stolen. Finally, Roberts goes out of his way to express his view that the right answer in the case should derive from a straightforward lawyerly question of applying law to the facts, not of a general commitment to the Bill of Rights or of helping the police fight crime. Here is how he responds to the rhetorical passages in Judge Edwards' concurrence: I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. See Conc. Op. at 1, 5. But sentiments do not decide cases; facts and the law do. There is no dispute here on the law: if the officers had probable cause, they did not need a warrant; if they did not have probable cause, no warrant would issue in any event. As for the facts, the officers encountered at 1:00 a.m. an unlicensed driver operating an unregistered car with a broken tag light and stolen tags. The experienced district court judge concluded — and I agree — that "the circumstances were suspicious enough to amount to probable cause to search the trunk." Memorandum Order, at 5. Right or wrong, nothing about that determination reflected insensitivity to constitutional values, any more than a contrary determination would have reflected insensitivity to the needs of law enforcement.
I respectfully dissent. A nice touch, I think. Thanks to Howard for the link. (Oh, and it may be worth pointing out that the case was argued in April, and Roberts has been sort of busy recently, so the chances are very high that he wrote this dissent long before he was nominated.) UPDATE: One more notable aspect of the opinion is the paragraph criticizing Judge Rogers for discussing what the police should have done to get probable cause. It's a very Harlan-Bickel-Legal Process point about not wanting judges to go beyond the facts and law of the case. He writes: Finally, my colleagues’ insistence that police should have further questioned Jackson amounts to prescribing preferred investigative procedures for law enforcement. We have neither the authority nor the expertise for such an enterprise. See United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) ("creative judges engaged in post hoc evaluations of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished" (internal quotation marks omitted)). In the end, I would leave the judgment as to what lines of inquiry ought to be pursued to the officer himself, and judge probable cause on the facts as they are, rather than on what they might have been had the officer pursued a different course.
Three Countries in a Row:
The Final Jeopardy! clue a few weeks ago was the following:
On the Globe
Moving west from Canada, the next 3 countries through which the Arctic Circle passes
For the answer, click below:
USA (Alaska), Russia, Finland
My challenge for you is this: There is a place in the United States where, if you travel in a straight line in one of the four cardinal directions, the first three foreign countries you hit will all start with the same letter of the alphabet. Where is that place, what direction must you travel, and what are the three foreign countries?
FIFA World Soccer Rankings:
I'm excited, but skeptical, of the latest FIFA World Soccer Rankings, which has the U.S. ranked 6th (up 4 spots) ahead of France, England, Germany, Portugal, and Spain, among others.
Professor Roberts?
Law.com recalls John Roberts law school days at Harvard. One of his classmates recalls:
Barrack, Rodos & Bacine partner Mark Rosen remembered that John G. Roberts had two goals when the two young men were classmates in their first year at Harvard Law School -- becoming a professor at the law school or serving on the U.S. Supreme Court.
"It's up to him to say whether he got the consolation prize," Rosen said, just a day after Roberts was nominated by President George W. Bush to replace Sandra Day O'Connor on the Supreme Court.
His undergraduate History thesis advisor adds:
"He did not have that sort of showy type of intelligence," Strasbaugh said. "It was more of a controlled, thoughtful, not-aggressive type of intelligence."
I have wondered whether legal academia today (perhaps even more than other academic fields) tends to place an undue premium on a "showy type of intelligence" as opposed to "controlled ... not-agressive type of intelligence." I don't know, of course, whether this has always been the case. But it is my impression that this is the case today (there's no empirical test for this assertion, of course, so I could be completely wrong).
But compare, for instance, former appellate attorney Roberts to former Professor Scalia--who, I think we can all agree, has somewhat more of a "showy type of intelligence." From how he is described, one can guess that if Roberts were a professor today, he would likely be a doctrinally-oriented scholar and probably hornbook writer. In fact, Roberts does teach as an adjunct professor. These folks seem to be less-highly valued in the market today than interdisciplinary thinkers and theorists. If I am correct that law schools today tend to value "showy" intelligence as opposed to quiet intelligence, it seems to follow that we are inadvertently turning away some extremely able people from the academy.
On the other hand, given the institutional arrangement of modern law schools, it may be that this bias in inevitable. In particular, for whatever reason, law reviews today seem to overvalue novel, glib, and clever articles in the market, thus it may be that to the extent that the law school hiring process selects for "showy" intelligence, it may be an efficient response to peculiar market in which we sell our services, i.e., law reviews.
So, while at first glance the relative absence of people like "Professor Roberts" seems like a market failure in the professorial hiring market, it may be perfectly rational in light of the peculiar market for which future scholars are being selected. Today, it seems we find people like John Roberts teaching as adjuct professors (and I might add, these adjuncts are usually very popular with students who appreciate their attention to craft as opposed to bombastics) and passing along lawyering skills, whereas the profile of tenure-track professors looks completely different and selects for "showy intelligence."
Sunstein on Hayek:
Cass Sunstein, guest-blogging for Lessig this week, has had a number of posts on Hayek (here and here). Most of the posts have actually been on why certain institutions, such as blogs, open-source software, Wikipedia, etc., are not actually Hayekian information-processing mechanisms. That is correct. There is a fundamental difference between a Hayekian information-processing mechanism, such as the price system, and the type of information-processing mechanism that Sunstein is exploring.
Oversimplified, the distinction is between those systems where the purpose is simply to centralize dispersed knowledge in one place versus systems that centralize knowledge for the purpose of decentralizing it again.
[Continue reading "Sunstein on Hayek" under hidden text]
Sunstein is interested in the way in which information stored in many different places can be aggregated and centralized in one place to improve the quality of the information collected there (i.e., Wikipedia), thereby making it more likely to get the "correct" answer. Everyone participating in the project shares the same express purpose--to improve the quality of the software or the Wikipedia. The improvement in quality is an intended purpose.
Hayek is interested in coordination among many decentralized actors, not the centralization of information as an end in itself. He is interested in the way in which seemingly centralized systems, such as prices, emerge as an unintended consequence of decentralized individual decision-making. Nobody who is using the price cares if the price system produces the "correct" or "right" price (unlike the Wikipedia)--each individual just wants to know whether if they want to buy or sell something that they will be able to find someone to trade with. The price system helps them to identify one another and to conduct transactions. The marvel, Hayek notes, is that through individuals acting selfishly at all of these decentralized decision nodes, you get this spontaneous generation of a "price" that is a short-hand for all of their decentralized knowledge and decisions. The price, however, was nobody's intentional design--unlike the Wikipedia or open-source software. In fact, this squarely contradicts the central purpose of the Hayekian insight--Hayek's argument is that the value in prices is in the tacit knowledge that it conveys (i.e., the decisions and expectations of many decentralized actors), whereas Sunstein is interested in the explicit knowledge captured in these systems.
The value of prices, contra Sunstein's information-aggregation systems, is that prices permit the "centralization" of information in a short-hand form (market price) for the "purpose" of then decentralizing back to the individual market decision-makers for whom it provides incentives and information about the relative scarcity and preferences of many disaggregated market decision-makers. I put "purpose" in quotes, because of course, spontaneous orders have no purpose of their own, but in some sense market actors are responding to the information and incentives that prices provide in taking their own actions.
Thus, Hayekian information-aggregation mechanisms are not centralized information-collecting mechanisms of the type Sunstein discusses. Rather, they are short-hands for each dispersed individual being able to predict how other people are likely to act, which then allows each of us to plan our own actions and to coordinate better. Even better than the price system in illustrating Hayekian information aggregation may be language. Given terms within a language are wholly conventional--all that matters is that everyone else understands what you trying to communicate. So the correct word, like the correct price, is simply that word/price that enables people to interact with the maximum degree of coordination and minimal degree of friction. It is largely nonsensical to think about what would be the "correct" word for "car," "boat," or "train".
Similarly, customs and traditions, Hayek argues, are like this. They are created in a decentralized manner, and to the extent that people act in accordance with them (or more precisely, respond predictably to the incentive structures that they produce) the existence of these "rules" can help people to predict one anothers' behavior. You don't have to know why a given tradition was "created" in order to follow it (sometimes traditions such as dietary restrictions or other "taboos" may actually have a sound scientific basis, but that is largely beside the point). Here, however, Hayek does take the next step and argues that there is a metalevel competition among different sets of rules and traditions, cultural group selection, which does in fact select for the "best" rules, but again, in the empirical sense that groups that follow those rules will prosper relative to others. (I have written about this aspect of Hayek's thought here.)
Law too, is such a system. Hayek argues, in a forerunner to modern law & norms, that the "best" legal system is one like the traditional common law, which collected information from case-by-case adjudications of specific disputes that arise among people and infer more abstract principles from those, rather than law-making by centralized legislatures. Again, the point is not just that the decentralized information is being centralized; rather, the central point is that by collecting information from decentralized actors, and aggregating them into coherent rules, judges can then send the information back out to individual actors who can then make use of that knowledge to predict how others are likely to behave. The point of the information aggregation is simply that the rules produced are more likely to be "good" rules in that the reflect how individuals are actually acting already and so that rules grounded on that foundation are more likely to further coordination among decentralized actors, as opposed to rules that lack this foundation. Again, the point is that these rules will enable each individual to better predict each other's likely behavior, and to make his or her plans accordingly.
In other words, legal rules that build on spontaneous orders will, in general, promote coordination better than rules that run against the grain of spontaneous order. (Whether there is some normative reason to dislike the rule, or whether a given rule may be only a local rather than global optima and so should be altered, are different questions from the observation that rules that follow rather than contradict individuals' settled expectations will promote coordination better than those that run against them).
In an article I published several years ago, I argued that this is also the purpose of law, properly understood--to distribute information outward to individual decision makers on the periphery about incentives and expectations so as to allow individuals to better coordinate their affairs with one another and to allow the spontaneous order of the market to flourish. In turn, recognizing this tells us about what our legal rules should look like. Unfortunately the article is not available on-line, but the cite is Epstein & Polanyi on Simple Rules, Complex Systems, and Decentralization, 9 Const. Pol. Econ. 143 (1998). The rule of law, properly understood, also furthers this end of promoting coordination by dispersed individuals; it does not have an "end" of its own.
Conclusion: So Sunstein is absolutely correct to note that the information-processing mechanisms in which he is interested are not actually Hayekian systems. Hayek is not interested in the centralization of knowledge for knowledge's sake. Rather, he is interested in the way in which certain institutions (such as prices, language, and traditions) centralize huge amounts of information, boil it down into tacit knowledge, and then redistribute it to decentralized decision-makers in the form of prices, rules, traditions, etc. The "purpose" is not to collect the information at the center in order to make it more "accurate" or "better"; the purpose is to send it back out to decentralized decision-makers in order to allow them to better coordinate their affairs with one another.
If I have time later today, I will explain that I think the model of information-processing that Sunstein has in mind may actually be something more like the Condorcet Jury Theorem than Hayekian information aggregation.
MoveOn is collecting signatures on a petition against John Roberts.--
MoveOn is collecting signatures on a petition opposing the confirmation of John Roberts:
Oppose John Roberts' Supreme Court Nomination
In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion. That's why we believe:
"The Senate must not confirm right-wing corporate lawyer John Roberts to the Supreme Court."
MoveOn has a list of talking points against Roberts as well.
USA Today Poll finds initial support for Roberts.--
USA Today reports that 51% of Americans polled consider the nomination of John Roberts excellent or good (tip to RealClearPolitics):
An early sampling of public opinion found support for Roberts, but also a desire for more information about his views. A USA TODAY/CNN/Gallup Poll of 625 adults Wednesday found:
•51% called the choice excellent or good; 34% called it fair or poor; the rest had no opinion.
•76% said they needed more information before they could decide whether his views were “mainstream.”
•74% felt it would be appropriate to ask Roberts about abortion at the hearings. The poll has an error margin of +/— 4 percentage points.
If MoveOn, the Alliance for Justice, or the People For the American Way decide to run TV ads opposing Roberts, I would expect this to change. Progress for America already has a 30-second pro-Roberts commercial ready to run for a week.
My reading of the climate right now is that without a significant change, the Democratic senators believe that Roberts will be confirmed. While many do not want to confirm a nominee who is likely to be more conservative than Justice O'Connor, many of those most vocal in oppposing Circuit Court of Appeals nominees said that they would confirm judges if they were in the conservative mainstream. Because Roberts is in the conservative mainstream, Democratic senators would find it hard to vote against Roberts in good conscience, especially most of the members of the Gang of 14.
So one question is whether Democratic senators will support Roberts in order to garner good will to fight a future nominee tooth and nail. My guess is that it depends on whether there is a big TV ad campaign against Roberts. If there is, then there may well be enough cover to make the campaign against Roberts a nasty one in the Judiciary Committee. If there is no big TV ad campaign, then I think it will go relatively smoothly for Roberts--a lot of grumping and showboating, but few real fireworks. But a major negative TV ad campaign is a real possibility, and it could change the dynamics considerably.
The New York Times Loves John Roberts:
Yes, seriously. If you haven't seen it yet, check out this detailed biography of John Roberts from the Thursday New York Times.
Thursday, July 21, 2005
Government's Brief in Solomon Amendment Case:
The Justice Department has filed its brief in the Solomon Amendment case (the one involving miliary recuiting at law schools). The brief is available here (.pdf -- via Marty Lederman). The government's case is the easier one to make, but still, it's a good brief.
John Roberts Does Not Belong To The Federalist Society:
The Washington Post reports: Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration.
And practically everyone — CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post — has reported Roberts's membership as a fact. One liberal group opposed to Roberts's nomination, the Alliance for Justice, has noted it on its Web site.
But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been. This part of the story is particularly funny: Upon reflection, some Federalist Society members conceded that they had never actually seen Roberts at meet-and-greets such as the society's annual black-tie dinner.
"That's a good question, let me think. Now that you mention it — no," was former Bush Justice Department official Viet Dinh's response when asked if he had ever spotted Roberts at any Federalist events. Hat tip: ACSBlog.
Higher Punishment, Lower Conviction Rate (Another Arbitration Post):
It's well-known that if punishments are too harsh, triers of fact will be less willing to convict, so long as they are aware of the punishment. [Almost] no one would want a burglar to face the death penalty.
An analogous problem can come up in NASD arbitration. If a brokerage employee is named in an arbitration, and the defendants lose on any count, this goes on the employee's public record. Apparently, this is a big deal, because folks go to a lot of trouble to get arbitration records expunged when they win on all counts.
At my arbitration, the defendants' attorney emphasized in her closing argument that the defendant broker had not previously been subject to an arbitration, and that unless the arbitrators ruled for her side on all counts, he would have a black mark on his record.
In my dad's case, this may or may not account for the arbitrators' failure to even rule on the very small claim that was obviously legitimate, and may also account for the funny ruling on the bond issue, each discussed in previous posts. My father, at least, got the distinct impression that this issue weighed heavily on the arbitrators' conscience. Certainly, defendants' in-house counsel, very experienced in these matters, thought this would influence the arbitrators.
Regardless of what effect it had on my father's claim, the system I've described puts a lot of pressure on arbitrators to rule against Claimants on small claims. Why harm someone's career, I'm sure they say to themselves, over a few hundred or a few thousand dollars (easy for them to say, it's not they that were harmed)? Of course, if brokerage houses know that this is arbitrators' attitudes, they have no less incentive [Update: well they do have the incentive to avoid the costs of arbitration, counterbalanced against the desire for a reputation for fighting each claim to the death] to settle small but legitimate claims.
I can think of a several ways around this problem, but none of them seem satisfactory. Related Posts (on one page): - "Public" Arbitrator:
- Higher Punishment, Lower Conviction Rate (Another Arbitration Post):
- Arbitration Arbitrariness:
- Arbitration Lost:
Behind on Correspondence:
For the past month, I have been deep into writing a new major work on the Ninth Amendment, entitled, "Five Originalist Models of the Ninth Amendment." (When it is ready in August, you will hear about it here first and I will make it available to everyone on SSRN.) So I have been blogging light of late, and am way behind in answering emails received over the past several weeks. While lecturing next week in Germany, I hope to be able to catch up, but I may overlook someone. My apologies to anyone whose thoughtful email goes unanswered.
I do have a tip for correspondents. Any email that requires any substantial effort to answer is likely to be read, appreciated, and saved for a later time, which may or may not come. The easier is the response required, the more likely it will receive an immediate response and won't end up getting lost in my overflowing inbox. I always regret when this happens, but it inevitably happens sometimes.
Roberts Won't Bork Himself:
After wading through Judge Roberts' judicial opinions, Larry Solum has reached the following conclusion: Judge Roberts won't Bork himself.
Congressional Bill on Sentencing Would be 2d Amendment Disaster:
And it would be pretty bad for lots of other civil liberties as well, including the principle of punishment proportionate to the crime. And for the principle that the government should not force family members into becoming informants against each other. The bill is H.R. 1528, which has already passed a subcommittee, and is ready for consideration by the House Judiciary Committee. Mike Krause and I dissect the bill is a new Issue Paper from the Independence Institute.
Sunstein on Roberts:
Over at the Los Angeles Times LiveCurrent blog, Cass Sunstein writes: Judge Roberts has a first-rate mind and by all accounts he’s a wonderful person. In addition, his opinions to date are excellent and they show a healthy respect for people who disagree with him. It’s far too soon to reach any final conclusions — the process has just started — but Judge Roberts combines quality with a fine character, and that’s certainly something to applaud.
Were the latest London bombs made incorrectly?--
An interesting account from Sky News about the bomb on the double-decker bus:
Security sources have told Sky News that a high explosive was found on the bus, similar to that used in the July 7 attacks.
They said the strong smell of acetone would have sparked fears of a chemical attack.
And the smell indicated that the explosives had been made up incorrectly, with too much acetone and not enough peroxide.
Witnesses to the explosion said there had been a bang followed by the smell of smoke.
By the way, acetone is the primary ingredient in nail polish remover (if you are wondering what acetone smells like).
Other accounts of the bombs on the trains also mentioned a chemical smell. And early reports suggested that perhaps only the detonators exploded. This Sky News story suggests that the reason for the smell and the small size of the explosions may have been faulty bomb-making.
Arbitration Arbitrariness:
As several VC readers have pointed out in the comments section in response to previous posts, NASD arbitration awards are notoriously arbitrary. How arbitrary? I've already mentioned that the arbitrators' ruling managed to completely ignore a small claim that the other side essentially conceded, with no explanation for this omission. Consider also the following: It was undisputed (indeed, admitted by the respondent broker), and backed by documentary evidence, that my father called his H&R Block Financial Advisors broker and requested that he purchase for him a 7.625% Household Finance Corporation bond at par that he saw on the internet. His broker, after checking with the bond people at Block, informed him that "no such bond existed", and instead sold him a bond from the same company at par for 7.5%. A letter from Block in our possession stated that my father was sold the highest-yielding bond "in inventory." The evidence was ambiguous at the hearing as to whether the higher-yielding bond was available that day when my father called, or only became available later that same day. But note that my father was not told that the bond "is not available right now" but that it "didn't exist" (and that my father must have confused the APR with the yield).
At the hearing, Block denied that the the bond was in fact in inventory, despite the prior admission to the contrary. It's possible, given the letter noted, that Block in fact dumped a bond in inventory. It's also possible that that Block sold my father a 7.5 percent bond at par that they purchased below par just to sell it to him, knowing (or maybe not knowing) that higher-yielding bond at par was about to hit the market. But even if there is a much more innocent explanation for the confusion, Block was certainly negligent, and at the very least Block engaged in an "innocent misprepresentation," which, as I noted in a brief (which the arbitrators, so far as I can tell, completely ignored, as they cited no precedents in their ruling), is a valid cause of action under governing Michigan law and under the investors' agreement my father had with Block.
All the arbitrators say in their ruling is that my father could not succeed in this claim because they determined that the 7.625% bond was "unavailable" when he called (I'm pretty sure this isn't correct, but, as I said, the evidence was ambiguous). Given that the actual claim was that he was told not that the bond was not available yet, but that the bond actually didn't exist, and given the fact that he certainly would have waited a few hours to purchase a bond from the same company, also at par, at a higher yield if he had not been told this, I don't at all see how this settles the issue. Again, consider the innocent misrepresentation issue. The elements of innocent misrepresentation are: a transaction between the parties (yes); representations that are false in fact and actually deceive the other (yes); detrimental reliance (yes); and benefit obtained by misrepresenter from the deception (yes, a significant commission and perhaps more). Pretty simple.
I'm sure jury verdicts are at least as arbitrary, perhaps often more so, than are are arbitration awards. Indeed, the arbitrariness of jury awards is the major reason why I'm not a big fan of civil juries, especially when it comes to damages. But the jury system is able to survive, in part, because the juries do not provide explanations for their rulings, giving them a lot of immunity from criticism. Now that NASD arbitrators are providing rationales for their awards, but (at least in my case) making up facts, relying on documents not admitted into evidence, not ruling on claims raised in the Statement of Claim and at the hearing, ignoring briefing, and relying on nonsequitors as discussed above, I wonder how long the system will last. VC reader comments suggest that defendants often find arbitrator awards equally arbitrary--it all depends on the panel you get (more on that, perhaps, later).
BTW, if you are now, or are considering becoming, an H&R Block Financial Advisors customer, consider whether you want to deal with a company that gives you misinformation about a bond, then stubbornly insists that it's your fault for relying on their information!
UPDATE: In case you were wondering, NASD proceedings are not confidential: "Absent an agreement or order to the contrary, parties are generally free to disclose details of their own proceeding as they see fit."
Further UPDATE: Just looking at an article I wrote a long time ago expressing some of my concerns with the jury system. Remarkable how many of them apply to NASD arbitration.
First, the use of juries to decide civil cases undermines one of the most important values of civil law, certainty. A jury trial, as any trial lawyer will tell you, is a crapshoot; one can never predict what combination of principle and prejudice will motivate the jury. [This is what I hear from attorneys about NASD arbitration panels.]
Juries, moreover, do not and cannot officially explain the reasons for their decisions, so their verdicts have no precedential value. Nor are juries bound by judicial opinions rejecting prior claims based on the same evidence. [same with arbitration panels]
Judges, however, face certain constraints that juries do not. First, as noted previously, judges, unlike juries, must justify their rulings in writing. A judge motivated by political or other illegitimate considerations will nonetheless need to issue an opinion justifying his result on legal and logical grounds. [NASD arbitrators now write brief opinions, but they don't seem to need to justify rulings on anything in particular.]
If the judge cannot do so, a higher court will overrule him. Juries, however, can base their rulings purely on whims, and their verdicts are upheld if the victor can point to any evidence supporting its position. [NASD arbitrators are not even subject to that constraint.]
Judges are also constrained by the fact that their written opinions are publicly available. Even the least-principled judges are usually constrained by concern about their professional reputations. Lawyers generally take a big salary cut when they become judges, but gain the nonpecuniary benefit of the respect and prestige that attends judicial office. It is therefore a rare judge indeed who desires to be the subject of negative commentary. [When is the last time you saw public criticism of an NASD arbitrator, who, in any event, have other careers?]
There is, of course, a big difference between juries and arbitration panels, which is that the parties to an arbitration contractually agreed to it. But I haven't argued that my father should not have been required to go to arbitration, and I don't see any inconsistency between thinking arbitration can be a good thing, thinking arbitration contracts should be enforced, and suggesting that the current system of arbitration could be vastly improved. Indeed, when even many defense attorneys state that they would rather litigate in federal court then go through arbitration, you know something is amiss.
If I were NASD, I would either make arbitration a wholly equitable forum, thus explicitly warning parties in advance that arbitrators are free to do whatever their gut tells them is right, or provide a forum that more closely follows the law.
Expectations Versus Realities of the Confirmation Picture:
On July 1, co-blogger Todd had a very good post offering a quite reasonable prediction: there was going to be a brutal confirmation battle regardless of who Bush nominated to replace O'Connor. Todd wrote: Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven--the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be "moderate" rather than "conservative".
The credentials or qualifications of the particular nominee under consideration will be largely beside the point. If my sense of things is right, though, Todd's quite reasonable prediction looks like it may turn out to be wrong. It looks like there probably won't be a brutal confirmation battle over John Roberts, even though Roberts is generally understood to be conservative, and Roberts' credentials and qualifications are a part of his appeal. Here's the Washington Post today on the reaction to Roberts's nomination: An array of interest groups on the left began mobilizing opposition to Roberts, but reticent Senate Democrats demonstrated little eagerness for an all-out war against him. Some Democratic senators laid the groundwork for a struggle focused on prying loose documents related to Roberts's career in government and using any resistance by the administration against him. Yet as the day progressed, Democrats seemed increasingly resigned to the notion that they cannot stop his appointment.
The key barometer came from members of the Gang of 14 senators who forged a bipartisan accord in May to avoid a showdown over lower-court appointments. Two Republican members of the group, John McCain (Ariz.) and John W. Warner (Va.), said the Roberts selection would not trigger the "extraordinary circumstances" clause of the agreement that would justify a Democratic filibuster.
;Under Senate rules, a filibuster would be the only procedural way the minority party could stop the nomination. By the end of the day, though, Democrats held out little prospect of a filibuster.
"Everybody ought to cool their jets on this and let the process work," said Sen. Ben Nelson (Neb.), a Democratic member of the group. "Going in, it looks good" for Roberts, he said. The question is, what happened? I can think of a bunch of possible reasons why the early signs are pointing away from a brutal battle. Here are two. First, Roberts is not an unknown quantity in DC, and has not lived in a Republican cocoon. Many Democrats know him and like him, leading to lots of water cooler conversations that resemble this excellent post from Brad Joondeph at Supreme Court Extra. It's hard to man the battle stations in light of reactions like that. Second, I suspect that the Rehnquist retirement rumors are helping Roberts. Everyone is assuming that within the next year or so Chief Justice Rehqnuist will retire, meaning that the Roberts confirmation is just the first round in a two-round series. I'm not a political strategist, but my sense is that this makes things more complicated for Democrats who may want to oppose Roberts now. If Roberts is on the reasonable end of the likely nominees Bush may name, then it makes some sense to scrutinize Roberts but then let him through, saving energy for the real battle in the next round.
ThinkProgress has some great posts on Roberts.--
The blog ThinkProgress has some superb posts on John Roberts (and other Supreme Court issues). For a new blog, they have certainly hit their stride quickly.
Severus Snape and Harry Potter book 7:
That's the subject of my new essay analyzing the Harry Potter and the Half-blood Prince, the sixth book in the series. Don't read the essay unless you have finished the sixth book. If you have finished it, my essay will show that many of the mysteries left to be resolved in book 7 have actually been hidden in plain sight in book 6.
More Attacks in London:
Here is the important story via CNN. Four "explosions or attempts at explosions" have hit three London Underground stations and a bus two weeks after the July 7 terror attacks, the city's police chief has said.
Supreme Names:
What has been the most common first name among Supreme Court Justices? (Click below for the answer.)
John. There have been 12 Johns (Blair, Campbell, Catron, Clarke, two Harlans, Jay, Marshall, McKinley, McLean, Rutledge, and Stevens); that's more than 10% of the 109 Justices. Roberts would make 13.
From February 15, 1790 through May 12, 1790, there were only five Supreme Court Justices; three of them were named John, which must have caused an awful lot of confusion.
William comes in a close second with 11, but the numbers quickly jump down to five, for James.
There's a 46-way tie for last place, including a Lucius, a Melville, and a Ruth.
A Catholic Plurality on the Court:
Today's Washington Times has the most extensive write-up of Roberts's youth that I have seen (and it isn't very extensive):
Judge Roberts grew up in Long Beach, Ind., near Lake Michigan — a community where Bethlehem Steel managers lived. In high school, he was an excellent student and athlete, named as captain of the football team as well as editor of the school's newspaper. He graduated from Harvard summa cum laude in three years and received his law degree magna cum laude from Harvard Law School.
At 50, Judge Roberts — if confirmed — would be the youngest associate justice currently on the court. He also would be the 11th Catholic to serve on the high court and join with Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy in outnumbering Protestants on the court for the first time.
According to the Indianapolis Star, Judge Roberts attended a Catholic boarding school in Long Beach, Ind., then transferred to La Lumiere, at the time an all-boys Catholic boarding school near La Porte, Ind. He graduated from there in 1973.
But Judge Roberts considers his faith "a private matter," said Shannen Coffin, former deputy assistant attorney general during Mr. Bush's first term.
"He is not going to approach the law as a Roman Catholic, nor as a white male," Mr. Coffin said. "John is a practicing Catholic but like most Catholics, he doesn't wear his faith on his sleeve. He is a man of deep and personal faith, but he'd also say he'd like to leave it at that."
Judge Roberts' wife, Jane Sullivan Roberts, also is an attorney. From 1995 to 1999, she was an executive vice president for Feminists for Life, a 33-year-old pro-life group based in the District. She still serves as legal counsel for the FFL board.
"She's a brilliant attorney and we're very proud of her service to Feminists for Life," FFL President Serrin Foster said. "She's smart. There's a very Kennedyesque feeling when you look at them and their kids."
Update:
A couple other profiles here and here.
Wednesday, July 20, 2005
How Roberts Voted on the DC Circuit:
Over at The Supreme Court Nomination Blog, Kevin Russell, Anisha Dasgupta and Brian Fletcher have looked at John Roberts' complete voting record on the DC Circuit, and conclude that it didn't show any particular ideological patterns: While Judge Roberts agreed most often with some of the court's most conservative members (agreeing nearly 100% of the time with judges Ginsburg and Silberman), he agreed nearly as often with some of its most liberal members (agreeing 95% of the time with judges Rogers and Garland). The two judges with whom he disagreed the most were relatively liberal judge Edwards (disagreeing in whole or part 18% of the time) and quite conservative senior judge Williams (10%). Of course, as they note, it's hard to read too much into this: Roberts has been on the DC Circuit for only a brief time, and a very high percentage of DC Circuit opinions are unanimous.
Comments on Who is John Roberts?
I published the post below without activating comments, which I discover you cannot do after the fact. So I am doing so here for comments on that post.
Coulter on Roberts:
Ann Coulter has decided to try to help the confirmation of John Roberts by criticizing Bush's decision to nominate him: "[Bush] has given us a Supreme Court nomination that will placate no liberals and should please no conservatives." Thanks to a slew of VC readers for the tip.
Record from Roberts' DC Circuit Nomination:
If you're interested in finding out a lot of information about John Roberts, and you want to download the 1,236 page record from his DC Circuit nomination, you can get it right here (watch out -- it's a 40 MB .pdf file).
Apology for Deleted Post:
I deleted a post regarding the NASD arbitration in which I participated, because, though I did an initial check on the matter, I wanted to follow up with someone more knowledgeable than I on exactly what one is allowed to reveal about arbitration proceedings, whether reporting on such proceedings is treated the same way by the legal system as reporting on trials, etc.
Who is John Roberts? Who Knows?
Jonathan Adler says John Roberts is the "best available" nominee. John Podhoretz says he is a "boring choice." So which is it? . . . .
Sorry, I seemed to have fallen asleep. I guess that means Podhoretz is right. John Roberts is who you get when the President finally nominates the "best qualified" candidate. I mean truly best qualified as measured by college and law school degrees (both Harvard), grades (summa, Harvard; Magna, Harvard Law School), clerkships (Friendly, Rehquist), post law school job (Chief Deputy SG), big prestigious law firm job. He is widely reputed to be considered by the Justices themselves as among the very best Supreme Court oral advocates around today. And no one dislikes him.
But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know.
What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.
John Roberts appears to be the quintessential A+ student. That means being very smart, working very hard, and generally scoping out what the teacher wants to hear--which includes just the right amount of intellectual disagreement. Indeed, these would seem to be the qualities most desired in a judicial clerk who needs to anticipate and articulate the views if his judge, a Deputy SG who needs to voice the views of the administration, a Supreme Court advocate who needs to figure out what the justices want to hear while making his client's case, and an appellate judge who is trying faithfully to anticipate and follow Congress and the Supreme Court. Add to this what appears to be an admirable personal character and you have the "best qualified" person to sit on the highest court. But what may be missing is a judicial philosophy that will withstand the rigors of decades on the Court.
Am I being too hard on Judge Roberts? Perhaps. But I do know this. Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted--taking a position, and defending it against all comers--is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.
This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.
In contrast, Judge Michael McConnell, to name another conservative, has been through this ordeal. As a law professor, he has had to make such a commitment about judicial philosophy and defend it. When it comes to originalism, he has practiced it himself, and the fruits of his analysis have been subjected to severe academic scrutiny. In doing so, he has earned the respect of his academic adversaries. But because he has a paper trail, McConnell would have had a much tougher confirmation fight, which I imagine entered into the decision to pick Judge Roberts instead.
So we are still ducking and hiding from a debate over how the Constitution should be interpreted, beyond "not legislate from the bench." Will these questions be asked by the Senators? Maybe, but not likely. Will they be answered by the nominee? Only if asked, and then I expect to get answers that the Senators want to hear, delivered in a calm, cool, articulate and thoughtful manner. In a word, "boring." I predict no gavel-to-gavel network coverage. Even CNN and Fox News will cut away. C*SPAN will end up having this one all to itself.
Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President's choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.
Update: This post mde the blog round up on MSNBC. You can see it on Political Teen. Thanks!
More on NASD Arbitration:
Temporarily deleted for reediting.
Reading One's Preferences into the Constitution:
There is a great debate on the Kelo case today on National Review Online between two friends of mine, Jonathan Adler and Scott Bullock. The debate concerns the original meaning and judicial effect the "public use" portion of the Takings Clause. The only sour note in the exchange is when Jonathan says:
I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text. When you stop think about it, this is really a pretty serious insult that goes to the intellectual integrity of those about whom it is said. In essence, it is asserting that, while I have the integrity to set my own preferences aside when reading the Constitution, my opponent does not. It attributes a form of intellectual corruption to one's opponent, in which he puts his interests above the truth, so much so that he is unable to tell the two apart. And it adds nothing substantive to any particular debate. Whether or not your opponent is guilty of this will depend entirely on the originalist evidence for his or her position, or the lack thereof.
Now when it comes to original meaning, I think that this form of corruption does exist. It exists especially when there is no good faith argument based on the original meaning of the text. But especially when we are discussing an ambiguity or vagueness in the text, we should generally refrain from casting this particular mud ball, and let our evidence and arguments speak for themselves.
I know that this accusation is so commonplace that Jonathan just slipped into it without thinking. But I think we all ought to realize the true implications of this particular form of (non)argument, and generally refrain from using it unless it is overwhelmingly justified.
My Sense of the Roberts Confirmation Picture:
It's less than a day since President Bush nominated John Roberts to be an Associate Justice of the Supreme Court, but I wanted to offer some thoughts on how the nomination is playing out so far based both on my reading of the press and blog reactions and my own discussions about these issues with folks in DC.
1) My sense is that most people expect Roberts to sail through. Roberts is widely liked and respected, and there are no obvious red flags. More importantly, from the perspective of many Democrats, Roberts was one of the two or three least objectionable names on the list of a dozen or so possible picks floated by the Bush Administration. The big question had been whether Bush would nominate someone with some Democratic support (which mostly meant McConnell, Roberts, or Gonzales), or someone Democrats saw as a lunatic or Republican hack (Janice Rogers Brown, etc.). Bush has answered that question by picking a safe nominee, someone with considerable Democratic support. And most expect Bush will be rewarded with a fairly straightforward nomination.
2) The interest groups have to make a lot of noise right now, but it's mostly because they see that as their job regardless of who is the candidate. Lots of groups have been given lots of money to fight or support whoever Bush nominates, and that money has to be spent somehow. The spring has been wound very tight, and now we have to let it unwind a bit. But most people I've talked to aren't taking it very seriously, or seeing it as very specific to Roberts.
Of course, all of this may change. These sorts of things are very fluid. But at least the initial sense seems to be that Roberts is in pretty good shape.
Intra-Court Clerkships:
John Roberts clerked for Justice Rehnquist in 1980-81. If he is confirmed, it appears the two men will serve on the Court together. Would this be the first time that two people, one of whom clerked for the other (on any court) served together on the Supreme Court?
[The Times ran an interesting article about the many other connections between the people involved in the nomination process.]
O'Connor On the Roberts Nomination:
A Spokane, Washington newspaper interviewed Justice Sandra Day O'Connor about the Roberts nomination, and her reaction was pretty enthusiastic: Her first words were unequivocal: "That's fabulous!" she said. She immediately described John G. Roberts as a "brilliant legal mind, a straight shooter, articulate, and he should not have trouble being confirmed by October. . . . " Hat tip: Howard.
A Response to Orin on Tradesports.--
1. Response to Orin's Response.
Orin wrote that about two hours before his 8:38pm post Roberts futures were trading at 1% and (at 8:38pm) were trading at 99.5%. He concluded: "Looks like Tradesports was right after all — at least after the announcement was made."
In response, I pointed out (1) that at 6:38pm (two hours before his post), Roberts futures were trading at 10%, not 1% (but I noted that they had been trading at 1% at 5:55pm); and (2) that "At 6:48pm (almost two hours before Orin's post and nearly an hour before the final press leak), Roberts became one of the top two favorites for the first time, trading at 30. At 7pm, for the first time, Roberts became the favorite at 41.9%. After remaining one of three favorites for the following 40 minutes, Roberts became the favorite for good at 7:40pm."
Now in response, Orin acknowledges only my first point:
But as best I can tell, the only apparent ground for his characterization is that I said Roberts was trading at 1% "about 2 hours" before my post, when the exact time Roberts was trading at 1% was 2 hours and 45 minutes before my post. But even assuming we construe "about" to exclude a 45-minute error window, what difference does that make?"
The main reason I wrote my update was to point out that Orin was "incorrect or misleading" in that the trading on Tradesports indicated that Roberts had a very substantial likelihood of being the nominee, not only after the press announced that Roberts would be nominated, but before the press announced it.
Orin points out that KJ Lopez had a post at the Corner at 5:24pm predicting Roberts as the nominee. But, of course, hers was one of many posts that predicted one or another nominee (indeed, Lopez herself was pushing Clement earlier in the day, as were traders on Tradesports). Her reasoning on NRO's The Corner and at NRO's Bench Memos was far from compelling. Here is Lopez's 5:24pm post that Orin notes:
Prediction: Bush will nominate a white male tonight. Just because they said he cou |