Saturday, July 12, 2008McCain and Obama vs. Peaceful Protesters:
That's the topic of my column in today's Rocky Mountain News, starting with an incident Monday in Denver. As the article makes clear, both campaigns appear to be clearly within their legal rights, because they had protesters expelled from places which are not, under current First Amendment doctrine, traditional public fora. But that doesn't mean that either campaign made the right decision. Law Profs for the Bench:
Rick Hills is proposing a professorial non-aggression pact for judicial nominations of law professors. Law profs agree to support any academic appointment to the federal district or appellate bench, full stop. Left law profs will endorse, say, Professor Doug Kmiec for the Ninth Circuit when a Republican occupies the White House [but Kmiec endorseed Obama -- JHA]; Right law profs will endorse, for instance, Dean Elena Kagan for the D.C. Circuit when a Democrat occupies the White House.I'm ready to sign on (even though -- or perhaps because -- I'm quite sure I'd never be a direct beneficiary. But I'd also go Rick one better, and suggest that law professors begin urging an overall de-escalation of judicial nomination fights. In particular, it would be nice if law professors stopped providing intellectual ammunition to Senators and activist groups who wish to dress up their ideological attacks on qualified judicial nominees. In my opinion, the purpose of Senate confirmation for judges (as for ambassadors and many other positions) is to prevent against cronyism, not second-guess the President's ideological preferences. So, I will support Prof. Hill's non-aggression pact, but I will also support well qualified nominees of either party to the federal bench, irrespective of their ideology. While I suspect I'd prefer McCain's nominees to Obama's, I think the senate should act promptly whomever sits in the White House, and should confirm those who have the objective qualifications to be federal judges or justices. Chicago Profs Oppose Milton Friedman Institute:
A proposal to create a Milton Friedman Institute at the University of Chicago appears to have created some controversy, as reported here and here. 101 professors at the University signed a letter raising concerns about the new center. In particular, they raised concerns that it would be a "right-wing think tank" and would reinforce popular perceptions that the University of Chicago lacks ideological diversity. Daniel Drezner has looked into the complaints about the proposed Center, and suggests an alternative explanation for the opposition: "The Milton Friedman Institute will distribute the bulk of its benefits to the department of economics, the law school, and the business school." I suspect Friedman would appreciate Drezner's take, particularly insofar as it applies a Friedman-esque analysis to the Friedman Institute's opposition. Related Posts (on one page): Strange Op-Ed By Chris Hedges:
The new FISA amendments compare to last year's Protect America Act by expanding judicial review dramatically, clarifying that the law cannot be used to monitor individuals inside the United States without a warrant, and imposing, for the first time, a warrant requirement on the surveillance of Americans overseas (in addition to the preexisting warrant requirement on the surveillance of Americans inside the United States). It is a major improvement over last year's law from a civil libertarian perspective. So how does former New York Times reporter Chris Hedges describe the new law? Let's take a look:
If the sweeping surveillance law signed by President Bush on Thursday — giving the U.S. government nearly unchecked authority to eavesdrop on the phone calls and e-mails of innocent Americans — is allowed to stand, we will have eroded one of the most important bulwarks to a free press and an open society.I don't know Chris Hedges, but I'm genuinely curious about whether he has actually read the law. I tend to doubt he has. Related Posts (on one page):
Anti-Drilling Group Supports Drilling:
The 1969 oil spill off the coast of Santa Barbara was a major catalyst for environmental reforms, and spurred the creation of GOO! (Get the Oil Out), an environmental group dedicated to opposing offshore oil drilling. But something has changed in the intervening decades. Thirty-nine years later, GOO! is still around. But this April the group did something astonishing. It publicly supported an oil company's proposal to drill off the coast of Santa Barbara.Environmentally sensitive oil exploration and extraction has been possible for quite some time. The National Audubon Society and a state affiliate first allowed oil and gas development in their preserves decades ago, on the condition that oil companies agreed to various measures to lessen the impact of such development. In one case, Audubon allowed drilling and extraction in a nature preserve too sensitive for tourism or birdwatching. In another, ten years after drilling ended it was impossible to identify where it had taken place. I first wrote about this in 1991 after interviewing some of the preserve managers. (I can't find the op-eds online, but I found this letter.) As one described it, when Audubon was approached by an oil company, their response was essentially "you can drill if you pay us royalties and can prevent the following impacts." This prompted the oil companies to devote their energies to meeting Audubon's demands, leading to significant innovation. Government agencies often impose requirements on oil and gas development on federal lands or offshore, but they are rarely so tailored to the specific ecological conditions of a given site. Government agencies are also less adept than private owners at negotiating these sorts of deals, particularly when constrained by broad regulatory requirements. Nonetheless, when oil companies have an incentive to reduce the environmental impacts of oil development, they are often able to do quite a bit. Related Posts (on one page):
Friday, July 11, 2008Federal Regulators Take Over IndyMac:
Back in August 2005, at the tail end of the housing bubble (but when many VC readers were still berating me for saying [or, more precisely, siding with the many "doomsayers" who were saying] there was a housing bubble), I pointed out one future source of trouble for the housing and mortgage markets:
A Conspiracy reader who was an executive at Indymac emailed me that the banks were aware of this possible dynamic, but were confident that home buyers would protect their credit rating at all costs, and wouldn't default on their mortgage unless they really couldn't pay their mortgage, regardless of how far "underwater" they were. This is when I first concluded that the banking industry was out of its collective mind. (And of course, as it turns out, even in "recourse" states, "jingle mail" is an ever-growing problem, and banks rarely try to go after any assets that the borrowers may have). UPDATE: Part of the problem, from what I can tell, is that the mortgage industry was relying on worst-case scenarios based on default rates from past housing busts, such the early 90s in California, and the 80s in Texas. Yet those were totally different circumstances, not least that those default rates were based on borrowers who generally put 20% down, and thus would think really hard before defaulting, credit rating aside. Congratulations to Orin,
who not only has two of his articles cited in the Sixth Circuit e-mail privacy en banc, but who has the special privilege of having the dissent deride one of the citations:
Just goes to show how important that single professor's law review article must be. Unintentional Self-Parody:
The Dallas Morning News reports:
More from Dallas Morning News columnist Steve Blow: Though Commissioner Price says that it wasn't supposed to be a big deal, and that "it’s unfortunate that Judge Thomas escalated things by asking for an apology,"
Mr. Blow rightly condemns Commissioner Price's position ("this kind of hypersensitivity to language really has become counterproductive to racial progress"), but goes on to say: "As a white person, I probably can’t fathom what it’s like for the color of your own skin to be synonymous with -— to quote from the The Synonym Finder -- evil, dirty, criminal, satanic, corrupt, sinister, disgraceful, foul, ghastly." But that's not what "black" in "black hole" represents; rather, it's "black" in the sense of, well, not yielding any light. And as to Commissioner Price's riposte, quoted by Mr. Blow -- "There are always other terms to use, Mr. Price said, even for black hole. 'He could have just said "a file 13."'" -- well, yes, he could have, if he didn't want to be understood (at least by civilians). I should note that it's possible that, in some situations, someone may use "black hole" to deliberately insult blacks, just as in some contexts you can use any innocent term with a facial expression, intonation, or contextual cue that makes the term into an insult. But nothing in the explanation from Commissioner Price suggests that this was happening here. For something in a similar vein, see the master/slave saga, discussed here, here, and here, plus the slavishly microbrouhaha. And, of course, who could forget the objection to "big bang" being "offputting to young women" in astronomy (see CNN, June 14, 1993, also quoted online here)? [Reuters Reports] Federal Discount Window Open to Fannie and Freddie [and then backs off the story].
[According to a Reuters story, reported on CNBC about 2:45pm ET:]The Federal Reserve discount window is now open to Fannie Mae and Freddie Mac. Both stocks, which were down by huge percentages, began climbing. And the Dow has moved from down 250 points earlier today to down 100 points at 2:50ET. UPDATE: Now Reuters is backing off the story and the DOW, which went positive at about 3:05pm ET, is off 140 points at 3:40pm ET. This week, rumors are flying on Wall Street (there was a phony one about Lehman earlier this week). "Chipmaker Sues To Silence Security Researchers,"
in the Netherlands. For my thoughts on the First Amendment and speech that reveals security breaches, see my Crime-Facilitating Speech (Stanford Law Review, 2005), though of course the legal analysis would apply only to U.S. lawsuits. Related Posts (on one page):
Sixth Circuit Hands Down En Banc Decision in Warshak v. United States:
The en banc Sixth Circuit has handed down its decision in Warshak v. United States, the e-mail privacy case I have blogged about. In a majority opinion by Judge Sutton, the court held that the case is not ripe for adjudication; the court therefore vacated the injunction and remanded. Warshak has already been indicted and convicted, the court reasoned, so his e-mail presumably won't be searched again. And even if a search occurs, it's impossible to know what the facts will be when a future search occurs in order to apply the Fourth Amendment to those facts. The case is therefore not ripe for adjudication. Also, there is no hardship to Warshak in not adjudicating the issue now, as he is not currently subject to regulation by the statute and he still has the alternative remedies of a motion to supress and a Bivens action. I think Judge Sutton's analysis is correct, and I'm glad to see the case resolved properly.
Judge Martin, the author of the original panel decision, dissented. His opinion accuses the majority of not caring enough about the Bill of Rights to reach a decision on the merits. The end of Martin's dissent really turns the rhetoric up "to eleven": While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.Judge Sutton's majority opinion offers just the right response: The dissent’s concern about the “ongoing degradation of civil rights” seems a bit overwrought. The whole point of not deciding the constitutionality of a law in an unripe setting is not to decide it—not to degrade, or for that matter uplift, any constitutional right until we are faced with a concrete, as-applied, challenge to the provision. And if it is true, as the dissent charges, that the majority has a “zeal to uphold the power of the government to intrude into the privacy of citizens”—needless to say, it is not—perhaps we should be commended for restraining ourselves by not making that view the law when we had the chance.Indeed. I would also add that the basic principle that the original Warshak panel was understood to have established — that users generally have a reasonable expectation of privacy in their e-mails — has now been established without apparent controversy by the Ninth Circuit in Quon v. Arch Wireless. Fred Phelps, 175 Years Ago:
OK, this wasn't funeral picketing as such, and it was a bit less outrageous than Phelps' picket signs. But only a bit. George Beals, age 19, died of a lingering and painful disease, possibly tuberculosis ("consumption"). His father arranged an obituary in a Universalist newspaper, which said,
Two weeks later, Origen Bacheler, the owner and editor of the Anti Universalist newspaper, decided to publish a rebuttal to an obituary (I italicize the allegedly libelous portion):
Lovely: A young man dies, and a stranger's religious fanaticism (apparently shared by the young man's younger brother, who was the source for the rebuttal) leads the stranger to try to publicly correct the young man's obituary by accusing him of sinful conduct. As the prosecutor in the criminal libel prosecution of Bacheler put it, in flowery but sound language, "It was rarest of all that the most vile, the most malignant, the most daring, would strip off those little flowers which the hand of affection had strewed over the grave of their loved one, and scatter in their stead the rank weeds of opprobrium and disgrace." The test for a criminal libel at the time was that a defamatory statement was libelous unless it was true, and was made with good motives and for justifiable ends. To my surprise, the jury rendered a not guilty verdict, though "requesting [the judge] to state to Mr. Bacheler that although they had brought him in not guilty, yet they did not approve the course which he had taken ..., but had acquitted him on the ground, that they did not think he had any particular malice against the deceased." Source: Trial of the Commonwealth, Versus Origen Bacheler, for a Libel on the Character of George B. Beals, Deceased, at the Municipal Court, Boston (Boston, John H. Belcher 1829). Hands Off Prediction Markets:
John McGinnis fears the federal government may squelch prediction markets.
Choosing Corn Over Conservation:
It looks like the USDA is going to allow farmers to plant crops on land that was set aside for conservation purposes.
Given the high price of corn and other crops, farmers are unlikely to re-enroll their lands into CRP or other conservation programs as their existing contracts expire. (Most conservation programs effectively "rent" the land for a term of years.) This is yet another negative environmental consequence of the nation's political romance with corn-based ethanol. Kicking the Climate Can:
It is now official. The Bush Administration will not take any action to regulate greenhouse gases before 2009. Instead it is punting the issue to the next Administration. The WaPo reports here. The New FISA Law -- and the Misleading Media Coverage Of It:
I've been studying the new FISA legislation, as well as the press coverage of it, and so far I've found a major disconnect between the two. The MSM is presenting the new legislation as a major expansion of government surveillance powers. Here is how the Eric Lichtblau of the New York Times introduced the Senate's passage of the bill:
The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.But is that true? The new law is very complicated, and I've only been studying it for a few hours. It's quite possible that I'm missing something important. But based on my first reading, the media coverage of the new law strikes me as quite inaccurate. As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007. So the question is, why is the press coverage painting such a different picture? I think there's a reason, but it doesn't have very much to do with the new surveillance rules. In this post, I want to summarize how the new surveillance rules compare to those under the Protect America Act of 2007, and then I want to consider why the press is reporting the new law as it is. First, a bit of background. The legal rules for monitoring individuals outside the United States has become an important issue under FISA because many foreign Internet and telephone communications are now routed through the United States in the course of delivery. For example, a person in Pakistan who calls another person in Pakistan might have the call routed through New York. This creates an opportunity for monitoring of that communication from inside the network of the provider located in New York. The legal question is, what kinds of rules should govern monitoring directed at targets overseas from inside the United States? The original FISA of 1978 wasn't supposed to regulate surveillance of individuals outside the United States, but then back in those days you didn't have foreign to foreign calls routed through the U.S. So what happens when technology changes? The Protect America Act of 2007 required the Executive to submit plans for monitoring individuals overseas to the Foreign Intelligence Surveillance Court (FISC). The FISC would then determine whether the monitoring plans were “directed at a person reasonably believed to be located outside of the United States.” So long as it was not “clearly erroneous” that the proposals were “reasonably” so directed, the FISC had to approve the monitoring. The monitoring could occur for one year. See 50 U.S.C. §§ 1805B (2007). But the Protect America Act sunset after six months, requiring new legislation to be passed if Congress wished to authorize such surveillance in the future. At the broadest level, the new Act continues the basic approach of the Protect America Act while adding more judicial review in significant ways. As in the Protect America Act, the government submits monitoring plan to the FISC as to whether the monitoring plans were "directed at a person reasonably believed to be located outside of the United States." The FISC then reviews the plan to see whether it does so or not. At the same time, it looks to me like the new law has considerably more judicial review than the Protect America Act. Related Posts (on one page):
Responding to Bogus on His Arming America Review.--
Carl Bogus responded to an earlier post of mine. I told this story of his behavior immediately before he published a review of Arming America in the Texas Law Review:
Bogus responded to this story, not by disagreeing with anything I said, but merely by quoting some noncommittal statements from his review.
If this is all that Bogus had said on the relevant matters covered directly and by implication in his review of Arming America, perhaps that might have been adequate. But it’s worth quoting at length from Bogus’s review in the Texas Law Review to get a feel for his opinion of the book, Arming America, and his spin on the dispute over its veracity. Bogus opened the review with this gushing praise:
Garry Wills later told me that the book is a “fraud,” and in a CSPAN2 interview, he said that "People get taken by very good con men." Edmund Morgan also wrote me a letter that was less blunt than Wills, but made clear that he no longer viewed the book as correct. (Morgan based his change of heart on the same draft article by Justin Heather and me that Carl Bogus had read.) Many of the claims that Bogus endorses in his review are false, including many of the ones quoted above. The sad fact is that, when Bogus published his review, many of these falsehoods had already been shown to be false by me, Clayton Cramer, Dave Kopel, Joyce Malcolm, and others. For example, I had already shown that the 14.7% claim that Bogus endorses was mathematically impossible. Bogus begins his last paragraph of his Texas review with this bold statement:
Yet perhaps most important for today’s dispute was Bogus’s suggestion in his review that Bellesiles is being attacked so vigorously because he was telling the truth:
So Bogus puts the truth of Bellesiles’s work directly at issue, but he was unwilling to go to his own library (after I confirmed with his librarian that they had the same records) to try to determine whether Bellesiles was, indeed, telling the truth. Then Bogus had the gall to slime Cramer, Kopel, and Malcolm (but not me) by suggesting that they were so worked up because Bellesiles was telling the truth about guns (if Bogus has ever publicly apologized to them, I’ve missed it). As I explained at the time to Bogus, the published Providence records that Bellesiles used in Arming America had good indices. One had only to spend an hour or so looking up estates with guns to see that he had systematically misrepresented:
If Bogus had actually cared enough to check, it would have been obvious to him that Bellesiles was claiming in Arming America to have read dozens of wills that never existed, because the wills were not included in the probate files and the decedents were explicitly identified as dying without making a will. One doesn’t have to have any specialized knowledge to see that in dozens of cases Bellesiles's analysis was based on non-existent documents. And the problems with the Providence Records went to issues central to the book and to Bogus's review: what condition guns were in, whether they were collectively owned, whether they were collectively stored, what sorts of individuals owned them, whether they were widely owned, whether they were too expensive to be widely owned, whether probate records were complete, and –- most importantly — whether Arming America was based on nonexistent or systematically misread sources. But I couldn’t get Bogus to take even a cursory look at the evidence in his own library. Ultimately, Bogus's refusal to check caused him to write one of the most embarrassingly mistaken book reviews ever published in an American law review. Bogus’s review not only raised the issue of the truthfulness of Bellesiles’s work, but quite irresponsibly suggested that particular pro-gun scholars were criticizing the book because it told the truth about guns, a grossly unfair position for a reviewer to adopt while he was refusing to take even minimal steps to inquire into the truthfulness of the work he was reviewing. As Clayton Cramer mentioned in comments to Bogus's response, Cramer had put scans of source documents up on his website, but law professors such as Bogus appear not to have been any more interested in them than he was in the Providence records. Now Bogus has the nerve to complain about my recounting my efforts to save him from his embarrassing mistake, a complaint that lacks a denial of any of the facts that I accurately recounted. Related Posts (on one page):
Thursday, July 10, 2008John McCain pisses on the third rail.--
John McCain recently called Social Security an "absolute disgrace." It is, of course, but politicians aren't supposed to say so. Josh Marshall is on the case (tip to Kaus):
Social Security is in some respects a disgrace (it should become more of a pension system and less of a welfare system), but whether it will go bankrupt in a few decades depends highly on the assumed growth rate of the US economy. With much of Asia, South America, and Eastern Europe on a long-term upward trend, I'm getting increasingly less pessimistic about the financial future of Social Security. Merits aside, I consider McCain's statement to be a political gaffe, because by pissing on the third rail of politics, McCain gives his opponents ammunition for future attacks. Barack Obama's Four Languages.--
Via Instapundit and Kaus, I read that Barack Obama couldn’t speak Spanish. But in 1997, he claimed to a reporter that he could speak a barely passable Spanish, one of four languages that he claimed varying abilities to speak:
I know that Obama is more fluent in English than most of us. Does anyone know how fluent he is in his other three languages, especially Spanish? License and Exam Required to Speak for Money About History:
The Institute for Justice is challenging Philadelphia's new requirement that tour guides be licensed and take special history and geography exams. IJ seems to be exactly right on this: Such a requirement violates the First Amendment. The government surely couldn't require that authors of history books or travel books be licensed and take exams. Nor can it require the same as to producers of travel documentary DVDs, or actors in theaters that present history/geography-related informational entertainment. Such restrictions would be seen as unconstitutional content-based prior restraints, even if they don't purport to directly control (say, through loss of license) what is said: They bar speakers from speaking until a license is received, they are justified by the desire to prevent speech with a bad content, and they apply only to speakers who would convey a particular sort of content (history or geography in my hypotheticals). The answer isn't any different for tours, which are likewise a form of history-/geography-related infotainment. They are speech in the quite literal sense of the word, and they are no less constitutionally protected than are books, videos, or plays. None of this speaks to content-neutral requirements aimed at non-content-related harms, for instance requirements that theaters provide ample fire exits, or that tour operators use only licensed drivers and carry adequate liability insurance. But the Philadelphia requirements, as I mentioned, apply to speech of a particular content (tours that "provides information on the City’s geography, history, historic sites, historic structures, historic objects or other places of interest"), and they are aimed at preventing allegedly misleading content. To make things even clearer, an exemption for tour companies that educate their own guides is applicable only after a content-based judgment on the city's part -- "[i]f the Department determines that the educational program and method of evaluating tour guides is equivalent to or exceeds the written examination required by this Section" -- though even if this exemption was removed, the rest of the ordinance would still impose an unconstitutional content-based prior restraint. Just to anticipate some rebuttals: (1) Tour guide speech doesn't fit within the "commercial speech" zone of lowered protection, because that zone basically covers only commercial advertising, not speech sold for money (or else ordinary books, newspapers, movies, plays, and the like would generally be "commercial speech" so long as customers had to pay for them). (2) Nor can such licensing and testing systems be justified by general consumer protection rationales, or by a theory that sellers of speech are engaging in misleading advertising when they promote "historical tours" that teach bad history; again, consider the analogy of books, videos, and the like. (3) Licensing and testing is of course commonplace for professional-client business relationships, including ones that chiefly consist of speech, such as lawyer-client or psychotherapist-client relationships; but the premise there is that these involve personal advice aimed at a particular person's situation, and usually in high-stakes contexts -- they surely don't apply to tour guide / patron relationships any more than to author / reader relationships. (4) Naturally, the government as employer may impose various credentialing requirements on employees who talk on its behalf, but that's not what's going on here. If the government is really worried about tourists' being misled, and the problems not being resolved through market pressure (tours, after all, don't like online criticisms, or people telling their hotels' concierges what a bum recommendation the concierge had given), the government can easily set up an optional "Seal of Approval" system; and tours that get the Seal will surely promote it as a sign of superiority over others that don't have the Seal. But mandatory content-based licensing and examination requirements for speakers are unconstitutional, and a very bad precedent that could easily be extended to other classes of speakers as well. Trouble at the North Pole:
The WSJ reports on conflict among Santa impersonators.
Laughter at the Supreme Court:
Funny article from the Weekly Standard. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:
Yesterday Eugene was kind enough both to post a link to an essay with Mitu Gulati that I just posted and to make thoughtful comments on it. I appreciate both the posting and the comments – a big part of the fun of being an academic (or blogger) is discussing the merits and demerits of one’s ideas. Eugene’s central point is his first one: the benefits to the candidate’s opponents of finding dirt on an announced choice are greater pre-election than post-election, because the opponents know that they might torpedo not merely the nominee but also the presidential candidate himself. I agree that the potential benefits to a candidate’s opponents of attacks on a candidate’s nominees are greater pre-election than post-election. But so are the potential costs. I will use McCain as my example, since he is behind in the current polls and thus has a greater incentive to try to shake up the race. If McCain’s opponents are perceived as unfairly attacking candidate McCain’s nominees, the public is likely to attribute the unfairness to Obama. Obama probably won’t persuade many people if he tries to say that the attacks were independent of him – people will likely believe that his people were involved in it, just as most voters believed that George H.W. Bush was involved in the Willie Horton ad. Indeed, if Obama tries to distance himself from attacks on McCain’s nominees, voters may see that as him trying to weasel out of responsibility. In other words, in the crucible of an election, when the battle between two opposing ideologies are personified in a race between two individuals, the benefits and costs of everything relating to the campaign are received/borne by those two individuals. Now, it still may be that campaigns decide that a particular attack will win over more persuadable voters than it will deter. That’s the only cost and benefit that matter to a campaign – increasing your vote count and/or decreasing your opponent’s – and we can all imagine attacks that we think will work. But those things are very tricky to figure out in advance, and sometimes they blow up in the face of those peddling the information. It wasn’t an accident that John Edwards pointedly noted that Dick Cheney’s daughter is a lesbian – I’m sure he thought it would undercut Cheney. But my sense is that it cost his ticket more votes than it gained them. Or think about rumors that have actually circulated about the two existing candidates. My sense is that “Obama is a secret Muslim” has cost McCain more votes than it has Obama (because those who believe were largely going to vote for McCain anyway, and many in the middle find it distasteful for Obama’s opponents to try to stir up passions in this way). Or think back to the whispering campaign in 2000 that McCain was brainwashed when he was a prisoner of war in Vietnam. Some people spread it around in an attempt to tank McCain, but I think it likely turned off more people than it attracted. Having said all that, I think that Eugene is correct to say that, pre-election, Presidential candidates are going to want to name people who are squeaky clean. The examples I gave in the previous paragraph are of attacks that many/most people would regard as unfair. But lots of aspects of one’s personal life (e.g., whether you have sex with prostitutes, or solicit sex in men’s bathrooms) are considered fair game, and presidential candidates are going to avoid people who seem to have any skeletons in their closet. This will lead to a preference for pre-election nominees who can credibly claim to be squeaky clean. One way to achieve this is for the potential nominee or the campaign to hire an independent investigative firm to check her background. Eugene suggests that a campaign won’t find everything, but I suspect that Kroll will. Indeed, I imagine that Kroll will do at least as good a job as the FBI. But if I’m wrong about that, then the FBI could perform the background checks. They do such checks routinely, and this would just be moving up the time for a few of those checks. Eugene mentions that candidates might be worried about a hostile Administration getting information from the FBI. First, the notion of a hostile Administration releasing information in advance of a nominee’s announcement is in tension with the suggestion that opponents would want to wait to release harmful information until the announcement. Second, if information about an FBI background check were released to the public in advance of an announcement, the presidential candidate would (fairly) express his outrage at the Administration’s violation of the FBI’s processes. And I suspect that the charge would be effective – people do not like the idea of the FBI playing politics. The hostile Administration could try to remove its fingerprints from the leak. But, as with the release of unfair attacks, people will attribute the attacks to the party that benefits, and will associate that party (naturally enough) with the party’s presidential candidate. Failing all of the above, a potential nominee could credibly claim to be squeaky clean based on a different sort of background check – the scrutiny that comes from running for office or holding other important political positions. Someone who has recently run for office can point out that her background was extensively researched by political opponents and the press, and that they found nothing. So, insofar as private or FBI vetting is unattractive, pre-election selection will tend to favor existing politicians for vetting reasons. As we note in the essay, we think that pre-election selection will favor existing politicians for another reason – presidential candidates will want to name people with a significant following (in the hope that are sufficiently popular to bring some persuadable voters to vote for the presidential candidate), and people with such a following will tend to be existing politicians who, not coincidentally, have already been subject to much scrutiny. The larger point is that a presidential candidate will engage in a benefit/cost analysis: if he decides that the benefits to announcing a popular nominee are greater than the costs of vetting (the monetary costs will be relatively low, so we are mainly talking about the likelihood of the vetters missing something), then he will do it. For a candidate who is behind in the polls and is going to lose unless he shakes up the race, the benefit of attracting even a small percentage of voters in swing states will loom very large. If it looks like you are going to lose anyway in a winner-take-all game, your incentive is to start taking some risks. The worst that will happen is that you’ll lose, and you’re already on track to do that. And don’t forget the benefit to the voters, which is our real motivation in our essay: we as voters will learn more about the presidential candidate and the policies that the candidate’s team will likely pursue. This post is already too long, so I'll make just one more point: it is true that the scrutiny of the future decisions made by those named as potential appointees will be very great. But right now we live in a world in which lots of decisionmakers – and most troublingly judges – may trim their sails (or, worse, change their decisions) in order to improve their chances for nomination. I would prefer a world in which I know the person whose work we need to scrutinize (the person whose is named for a position pre-election) to one in which a dozen or more politicians or judges are secretly auditioning for that same position. And if the nominee takes a leave of absence, that’s fine with me. Any way I slice it, I prefer that transparency to the opacity of a bunch of judges trying to outdo each other in currying favor with a new President. Related Posts (on one page):
Voter Fraud in Alabama?
The NYT has an interesting story about a voter fraud investigation in Alabama. "No Beer, No Civilization":
George Will thinks some folks underestimate the importance of beer. UPDATE: Professor Bainbridge thinks it's really "No Wine, No Civilization." Redheadlaw7 likes that story better. The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes:
Another early post-Heller case, Chaleunsak v. United States, 2008 U.S. Dist. LEXIS 50852 (M.D. Tenn. July 1), quickly disposes of a challenge to 18 U.S.C. § 924(c)(1), which provides a multi-year enhancement when someone "during and in relation to any [federal] crime of violence or [federal] drug trafficking crime" "uses or carries a firearm":
Helton, though, is not binding precedent even within the Sixth Circuit (that's why it's in Fed. Appx. and not F.3d). It's also pre-Heller, though at least it doesn't rely on the states'-rights/militia-rights theory that Heller rejected; here's the relevant excerpt from Helton:
So it seems to me the district court should have done its own analysis, even a cursory one, rather than just relying on the nonprecedential and cursorily reasoned pre-Heller decision in Helton. As it happens, though, there is a good deal of caselaw on the subject of how an individual right to bear arms should affect sentence enhancements for using or carrying a firearm in connection with a crime: It's chiefly from the Washington Supreme Court, which for the last two decades has handed down a bunch of decisions under its state constitutional right to bear arms provision. I don't endorse them all, but at least they are a substantial body of law with a decent amount of analysis. Here's the most recent one on sentence enhancements, State v. Neff, 181 P.3d 819 (Wash. 2008):
It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement. But in any case, the deeper point is that some of these novel Second Amendment questions aren't novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense. The AMA, Licensing, and African-American Physicians:
The American Medical Association is reportedly going to apologize today for its history of discrimination against African American physicians. I doubt that this apology will include any reference to the fact that the AMA's control of the physician licensing process suppressed the supply of black doctors for decades. Here is a relevant excerpt from my book, Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (read reviews here):
Wednesday, July 9, 2008Thanks for the Concern, But:
My wife, children, and I travel to Israel once or twice a year to visit my wife's family. (We couldn't get a flight that suited our schedule this Summer--Israel is enjoying a record tourist season--but plan to go this Winter.) Perhaps not surprisingly, when I tell people where I'm going they often express concern for my safety. Fear not! In January 2002, in the middle of the Intifada, a writer pointed out that "the risk of road death in the United States is nearly eight times higher than the risk of death from terrorism in Israel." Multiple that figure by about ten to update things. Moreover, the death rate from road accidents is lower in Israel (I assume because the country is more compact and people walk a lot more--the roads are worse, and so are the drivers), and I'm far less likely to be a victim of violent crime in the Tel Aviv area where I spent most of my time in Israel than in the DC area where I live. So, if you find out that I'm going to Israel, don't worry about me. But are you sure you want to drive up to the Cape this weekend? I hear the roads are very dangerous! And don't pick up any hitchhikers! I hear the U.S. is crawling with serial killers. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:
Our own Stuart Benjamin, and my former colleague Mitu Gulati, have a new draft article urging the creation of such a norm:
I think this is an intriguing idea, and I agree that it would be valuable for voters to have more specific information about the candidate's plans, rather than vague generalities. Still, I doubt such a plan would work, for several related reasons that have to do with the realities of the campaign process, and the incentives that it creates. 1. To begin with, my sense is that there'll be much more incentive with the proposed system to find something damaging about a candidate's nominees. Right now, if some group torpedoes a judicial or Cabinet nominee, what do they accomplish? They blacken the Administration's eye, they might make it a little harder for the Administration to implement other parts of the agenda, and they may get a marginally better nominee from their perspective — but not much better, since the nominee will be selected by the same President. What's more, they know that to defeat the judicial nominee or especially a Cabinet nominee, they need something very damaging to get over the presumption that the President's selections should be approved. That's why some nominations don't even yield very serious battles. What would the Republicans have really gained from blocking Ginsburg or Breyer, especially since both were generally seen (correctly so) as moderate selections? But if future nominations are announced before the election, there's always a strong incentive to try to find problems with the prospective nominee, because it might help decide the election: It might make the candidate look like a poor judge of character, and at the very least it will distract from the candidate's affirmative message and put him on the defensive. Think the Rev. Wright fracas, only much more so, since the "he's just my minister, and there are many things on which I strongly disagree with him" defense won't really work with someone whom the candidate selects as a nominee for high office. So I'd imagine that for nearly every nominee, except perhaps those who are clearly peace offerings to the opposition (e.g., a moderate and well-liked Republican selected by a Democratic nominee), the other side's opposition research team — both the formal team on the other campaign and also the various uncontrollable outside advocacy groups — will go into overdrive. Anything the opposition finds might offer some chance of helping defeat the candidate, and even if it's a tiny chance, it might be politically worth airing. Plus, as the authors point out, in a close election the prospect of swinging even a few close states might be a strong incentive for the campaign to do something. Likewise, there'd be plenty of incentive to find some dirt on the candidate's announced nominees even if it only swings a few votes in West Virginia, Tennessee, and Florida. 2. Now of course all this is already done with regard to the candidate, the candidate's Vice-Presidential choice, and perhaps a few other top advisors. But here this would be done with regard to several other people, including people who the authors hope will not already be insiders. The campaign might thus not know all the dirt that might be learned about them. And while of course nominees already have to be vetted after the election, there will be two differences here. First, there might be more need to find every little speck of potential dirt, because there'll be a lot of incentive for the other side to find it. And, second, the vetting team will be much less effective: The candidate won't have the FBI to do the work for him. He'll have to use his own staff, who might be less effective. Telling lies to his staff won't be a crime, and my sense is that many people are more reluctant to say "no comment" to the FBI than they would be to campaign staffers (especially staffers from a campaign they dislike). Of course, the FBI could be told, as I understand the Secret Service is as to protective measures, that it must do the same vetting work for the campaigns as they do for the Administration; but then there will be obvious worries about a hostile Administration learning things about the campaign through its FBI agents. 3. Relatedly, say the campaign approaches someone who does know some dirt about a nominee, but who doesn't likely the campaign — say, for instance, the Obama campaign approaches a McCain partisan to ask what he knows about a former colleague whom the campaign is considering as a nominee. The partisan might have a strong incentive to sandbag the campaign — to be unreachable when they come to him, but once the announcement is made, to leak the dirt to the media in order to do the most possible damage to the candidate. (There's some incentive to do this even with the current post-election vetting system, but there'll be more incentive to do it under a pre-election announcement system, and it may be easier for the partisans to avoid talking to — or even lie to — the campaign vetters than to the FBI.) 4. And these problems will likely be further exacerbated by another phenomenon: People like talking about personalities (by which I mean especially scandalous or controversial actions by the people, as well as pure "personality" character traits) more than about policies. That's most obvious for the important but boringly technical and detailed policies, such as health care reform or social security reform. But I think that's even true more broadly — juicy gossip about people will draw more eyeballs than discussion even of sexy issues. Maybe that's because the sexy issue discussion is probably not new to most people; how much new is there to say about abortion or affirmative action or gun control? Or maybe it's for other psychological reasons. But my sense is that it's broadly believed that personality discussions are already a huge distraction from policy discussions, in lots of contexts, including elections. The proposal, it seems to me, will exacerbate this problem. Now the authors are right that the question is what the discussion of the nominees' personalities will displace. If serious issues related to the nominees' personalities will displace frivolous issues related to the candidates' personalities, or fluff pieces, or some horse-race issues, then that would be fine. But my sense is that on balance there's a serious risk that any new personality issues, especially about fresh-meat personalities and not the candidates and candidates' entourage (which will already have been talked to death during the primaries), will displace policy questions. 5. Finally, these reasons suggest that the intrusion on the nominees' lives and careers will be even more serious than the paper acknowledges it would be. First, the nominees would have to realize that they'll be becoming targets for some of the most expert opposition researchers (or, according to those researchers' enemies, character assassins) in the world — and more so than happens even now, for the reasons mentioned above. Second, they'll realize that anything they will do in the coming months will be especially flyspecked for errors and controversy. Even if a judge, for instance, recuses himself from "politically sensitive" cases, that might not be enough: Every line in every opinion will be looked at to see if it could be twisted to suggest some problem (e.g., the judge's being too pro-criminal-defendant or some such). Third, they'll realize that anything they will do in the coming months will also be scrutinized for possible political sail-trimming. Say a liberal judge writes a surprisingly pro-prosecution opinion; people will speculate that maybe he changed his vote (or at least his wording) to keep from jeopardizing the campaign that has pre-nominated him. Or imagine that your private-practice lawyer has been prenominated this way; would you trust that he's looking out for your best interest, or would you worry that he's adjusting his publicly available comments and filings to make sure that they don't create possible political problems? True, there's some risk already when a lawyer or a judge is known to be short-listed. But the pressure on a nominee to adjust his behavior (or the possibility that he will be seen as having adjusted his behavior) would surely be higher if he knows he has been preselected than if he just thinks he has a 10% chance of being selected. I suspect this is already a risk when people are nominated after the election, and are seeing their nomination languish for months. But it seems to me the risk would be even greater here. So concerns two and three suggest that any nominee would have to basically take a leave of absence from his job for the several months between nomination and |