pageok
pageok
pageok
Discretion, the Rule of Law, and Political Ideology:
Last week, I posted the facts of the Third Circuit's en banc decision in Pierre v. Attorney General and asked readers to chime in with what they would do if they were judges. Recall that this was the case with the inmate who was to be deported to Haiti where he would likely starve to death for lack of medical attention. The legal question was whether this amounted to "torture" given the requirement that torture must be an intentional act.

  The results were quite interesting in light of the political breakdown of the respondents. Among readers who self-identify as politically right of center, 73% would vote that Pierre must go. Among readers who self-identified as neither conservative nor liberal, 68% would vote that Pierre must go. On the other hand, there was a very different trend among readers who identified as politically left of center: Among those readers, only 35% would vote that Pierre must go. (There were 1,563 votes altogether, with 738 from right-of-center readers, 429 from left-of-center readers, and 396 from "other".)

  Why these differences? Surely one reason was that both the facts and the legal questions had a certain political valence. Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide. On the other hand, political liberals would be more likely to think of John Yoo's memos and debates on the meaning of torture, if not capital punishment more broadly (which liberals oppose twice as frequently as conservatives). So there was clearly some political valence in the case that could explain the differences.

  At the same time, I think there is a second reason: There are recognizable differences between how liberals and conservatives today tend to talk about and think about the role of the judges. Of course, I'm painting with a super broad brush here, and the broad brush can't capture a lot of nuance. But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law. In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.

  To some extent, this isn't news. Recall the Rasmussen poll last fall that asked voters "Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?" The differences between Obama voters and McCain voters were stark: 82% of McCain voters thought the Supreme Court should follow the written Constitution and legal precedents, while only 29% of Obama voters thought so. In contrast, 11% of McCain voters thought the Supreme Court should follow the Justices' sense of fairnesss, while 49% of Obama voters thought they should.

  I suspect we're seeing some of that dynamic in the reader poll in the Pierre case. In the case of Pierre, I think the mindset of following the law tends to lead to a pretty clear result that courts should not interfere with his deportation. The regulation required intent, and Pierre didn't claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death. Rather, he made a claim as to the likelihood of an event, arguing that what he subjectively would likely experience would be pain equivalent to what a person would experience if intentionally tortured. It seems to me that this just isn't enough under the law; indeed, the en banc Third Circuit voted unanimously not to intervene.

Kazinski:
In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.

I think Liberals also tend to see the law as unclear when they would like to see a different outcome. In this situation "The regulation required intent", I think a lot of liberals would argue "obviously Congress didn't foresee these facts, so the law is unclear".
4.13.2009 8:42pm
A.:
An interesting variable the survey didn't include was the legal background (or lack thereof) of the voters.
4.13.2009 8:48pm
RPT (mail):
It also appears as the difference between Old Testament and New Testament theology which may influence the reported opinions.
4.13.2009 8:51pm
Lior:
A: Is legal background significant? President Obama (qualified to be a professor of law) is looking for
“... somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.”
4.13.2009 8:56pm
Lior:
Prof. Kerr: at your level of genearlity, conservatives believe that things should be they way the were, while progressives would like them to change. Perhaps this is why conservatives prefer courts to adhere to the law-as-written while progressives prefer the law-as-it-could-be?
4.13.2009 8:59pm
einhverfr (mail) (www):
OrinKerr wrote:

The alternative mindset is that if a court observes enough ambiguity to say the issue is unclear, the judge can then fashion a result that appears the most just.


Well, that is a fair characterization of how the Supreme Court settled Grokster, isn't it? The Betamax precedent would have been unjust as mindlessly applied to that case but rather than abandon it, they simply drew a line between the Grokster case and the Betamax case (well, three different lines but that is another story). "That was just. If we apply the same test this will be unjust, so let's try to differentiate between them." That is an established and positive part of judicial methodology. So both precedence and fairness need to be looked at carefully, IMO.

However, I think the big issue is this: I think that folks on the left see less value to precedence than folks on the right do (but this gets VERY selective as one moves very far right of center). The issue IMO is that people just right of center (or maybe even just left of center too) may be in positions where predictability of the law really matters. Businesspeople typically fall in this category. If stability of the law isn't so important, you aren't going to worry about perverse incentives, etc. because you can always just change things later if there is a problem.....
4.13.2009 9:11pm
runape (mail):

But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law. In contrast, liberals today are more likely than conservatives to see a judge's job as doing justice where the law is unclear.


It seems to me that this isn't really a "contrast." Do conservatives think that judges should do something other than justice where the law is unclear? Similarly, I don't know any liberals who think that a judge's job is something other than "following the law."

Perhaps what you mean is that liberals are more likely to find ambiguity in the law than conservatives. But it's disingenuous to say that liberals think judges should do other than follow the law, and, while I can't speak for them, I should hardly think conservatives would like to think that judges should do injustice where the law is ambiguous.
4.13.2009 9:15pm
Anderson (mail):
The post seems fair enough, though I would caution that a single case is a bit narrow for drawing broad conclusions.

However, I think Prof. Kerr continues to assume a bit:

<i>The regulation required intent, and Pierre didn't claim that anyone would intentionally torture him; nor did he claim that anyone would know he was starving to death.</i>

Perhaps I'm just not sophisticated enough about how judging works, but there seems to be daylight between "did Pierre claim anyone would intentionally starve him to death/know he was starving to death" and "on the facts as presented, was it evident that Pierre faced" etc.

On the fact pattern presented in the post, it was given that Pierre would indeed starve to death in a Haitian prison, and it did not seem plausible that the Haitian authorities would be unaware this was happening. Possibly that makes no difference legally, in which case I was mistaken to argue otherwise.

So I'm not sure where the conservative/liberal split occurs here -- on the law, or on the interpretation of the facts? The conservative p.o.v. seems to depend quite a bit on "Pierre didn't EXPRESSLY CLAIM x, y, and z," which to the liberal p.o.v. seems a bit like deliberately wearing blinders.

Anyway &regardless, a good couple of posts from Prof. Kerr, who I hope will regale us with another such test when he finds another suitable fact pattern.
4.13.2009 9:17pm
runape (mail):
For what it's worth, the recent literature on judicial decisionmaking suggests that both Democratic and Republican appointees are likely to find ambiguity in the law where so doing allows them to impose their policy preferences (although Democratic appointees to a greater degree, if I recall correctly).
4.13.2009 9:17pm
runape (mail):
Orin - I should have said "misleading" rather than "disingenuous" in my first post - should not have implied bad faith. Apologies.
4.13.2009 9:22pm
David Welker (www):
Fascinating analysis.

I am not sure if you are entirely right though.

What do conservatives do when they view the law as ambiguous? Do they choose a random result among all possible interpretations? Or, in that case, do they try to do something that is sensible?

I think they try to do something that they view as sensible. For example, in Kyllo v. United States, it seems pretty clear to me that both text and precedent had simply run out. So, in that case, Justice Scalia adopted a policy that he thought was sensible. This is supposedly justified on the grounds that "[t]his assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." But, there is nothing in the Constitution that says that the Fourth Amendment, which originally applied only against the Federal government and not the states, was intended to preserve the same degree of privacy. In fact, Scalia acknowledges this: "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." Huh?? Technology apparently changes "the degree of privacy that existed when the Fourth Amendment was adopted." Except when it doesn't! It is quite clear now.

So, what is Scalia doing here? It surely is something more than merely "saying what the law is" right?

I think perhaps a major difference between liberals and conservatives is not that liberals do something they view as sensible when law and precedent runs out while conservatives do something else (like choose a random result). The main difference is that liberals are more likely to correctly identify ambiguity when it exists. Conservatives, in contrast, will pretend that ambiguity does not exist, and the result that "just happens" to tend to advance their policy preferences is entirely straightforward. Alternatively, conservatives will sincerely fail to identify ambiguity, as Orin has sincerely (and wrongly) failed to detect ambiguity in the Pierre case.

Overall, the view advanced by liberals advances the rule of law in a superior manner, because liberals correctly and honestly identify ambiguity. At least it is quite clear what is going on. This gives the political branches more room to respond. In contrast, conservatives tend to fail to acknowledge ambiguity but, low and behold, somehow nonetheless manage to push their policy preferences in an intentionally or unintentionally stealthy manner with their acts of "objective interpretation."

Furthermore, it seems quite clear to me that conservatives are inventing major doctrines out of thin air. Why this is acceptable to any principled person who simultaneously (and even self-righteously) insists on objective interpretation is beyond me. First, originalism was about original intent. Now, some assert it is about "original public meaning." Yeah, whatever. All I know for sure is that whatever "originalism" is about seems to be changing based on factors that have nothing whatsoever to do with the Constitution as originally written. And we are supposed to believe that conservatives are being more "objective" in their acts of interpretation? It seems to me that what conservatives are being is not more objective, but instead more deceptive, both to themselves and to others.

What does this all boil down to? In the end, as Scalia concedes in his book "A Matter of Interpretation" the best argument there is for the conservative approach to interpretation is that it is the "lesser evil."

That sounds fine to me. I am all for the "lesser evil." I think in general, choosing the lesser evil is a perfectly fine general approach. It sure beats choosing the "greater evil." But, what people like Scalia must acknowledge is that what is or is not "lesser evil" is something that is quite debatable. It is a matter of opinion. There is no objective measure here, after all. Liberals think their approach is the "lesser evil" too. So, drop the self-righteous BS already.

Overall, I think conservatives are the victims of a great amount of self-deception.
4.13.2009 9:34pm
OrinKerr:
Runape,

Here's an experiment. Go to a Federalist Society event and yell out, "We need judges that simply follow the law!" The crowd will cheer. Then go to an American Constitution Society and yell out, "We need judged that boldly pursue justice!" The crowd will cheer.

Then flip it. Go to a Federalist Society event and say, "we need judges that boldly pursue justice!" And go to the ACS and say, "we need judges that simply follow the law!" In both cases, the crowd will look at you silently and assume you are a heckler.

In more practical terms, I think there is a somewhat different approach to dealing with ambiguity. My sense is that conservatives are more apt to think that if there is uncertainty, a court should weigh the two sides and pick the side with the slightly more legal authority on its side. In other words, ambiguity triggers a need to weigh the psources: If a case is 65/35, the 65 side wins. In contrast, liberals are more apt to see ambiguity as liberating: With the correct answer not obvious, judges can then pick the result they prefer.
4.13.2009 9:47pm
bearing (mail) (www):
David Welker:

The main difference is that liberals are more likely to correctly identify ambiguity when it exists. Conservatives, in contrast, will pretend that ambiguity does not exist...Alternatively, conservatives will sincerely fail to identify ambiguity, as Orin has sincerely (and wrongly) failed to detect ambiguity in the Pierre case.

Overall, the view advanced by liberals advances the rule of law in a superior manner, because liberals correctly and honestly identify ambiguity....In contrast, conservatives tend to fail to acknowledge ambiguity


Don't you think you might have made a little room for the alternative where liberals incorrectly and/or dishonestly identify an ambiguity that is not really there? It seems a little precious to pretend that liberals never make mistakes and conservatives always do.
4.13.2009 9:47pm
OrinKerr:
Oh, and I should add that of course, if you're following the liberal side of these debates, one of your common arguments is likely to be that conservatives can't see ambiguity; they have delusions of certainty, the argument should run, and they don't have the sophisticated understanding of ambiguity that liberals have. It's the natural flip side to the conservative view that liberals are ignoring the law.

(As for ambiguity in the Pierre case, query why all of the liberals on the Third Circuit en banc panel voted to deny relief -- what did Internet commenters see that the judges didn't?)
4.13.2009 9:54pm
David Welker (www):

In other words, ambiguity triggers a need to weigh the psources: If a case is 65/35, the 65 side wins. In contrast, liberals are more apt to see ambiguity as liberating: With the correct answer not obvious, judges can then pick the result they prefer.


This is meaningless. How much do three sentences in Federalist 25 get versus three sentences in the Federalist 12? What if the three sentences in the Federalist 25 are more "central" how much weight? Should the sentences in Federalist 25 get 35 units of weight and the sentences in the Federalist 10 get 14 units? Or maybe the Federalist 25 should get only 26 unit of weight and the Federalist 18 units of weight, which entirely flips the decision? Should Federalist papers by Madison count more than Federal papers by Hamilton? Why or why not?

Nothing in particular renders one process of assigning weight to evidence more legitimate than another. There is no guidance whatsoever in the Constitution that tells one how much "weight" to assign to various pieces of evidence. There is no guidance in the Constitution about whether it is a "living document" or not. There is no guidance in the Constitution about whether we should use "original intent" originalism or "original public meaning" originalism. Nor is there any guidance about whether we should care about the intent of the Framers or the Ratifiers more. Nor is there any guidance about whether evidence in New York should count more or less (much less how much more or less) than evidence in Georgia.

Once again, I call BS. The process of assigning weight to evidence is anything BUT neutral.

And, it wasn't what was going on in Kyllo, for example. Justice Scalia came up with a result that he thought was sensible.

How about this. If conservatives really do assign "weights" to evidence in a quasi objective process, why don't they be explicit about it? Say that you are giving 8 units of weight to evidence X and 19 units of weight to evidence Y. At least it would be clear how much discretion is, in fact, being exercised.
4.13.2009 9:59pm
runape (mail):

Here's an experiment. Go to a Federalist Society event and yell out, "We need judges that simply follow the law!" The crowd will cheer. Then go to an American Constitution Society and yell out, "We need judged that boldly pursue justice!" The crowd will cheer.

Then flip it. Go to a Federalist Society event and say, "we need judges that boldly pursue justice!" And go to the ACS and say, "we need judges that simply follow the law!" In both cases, the crowd will look at you silently and assume you are a heckler.


I think this doesn't really get us anywhere - it seems to replicate the same problem. I know many ACS members who would not think you were a heckler. (They might think you were odd for shouting, though.)

More generally, most of the ACS types I know tend to think (following Posner, perhaps surprisingly) that the phrase "simply follow the law" obscures more than it reveals. How do you "follow the law" when the statute is ambiguous? Your post suggests that the right answer may be nose counting. That's one approach, to be sure, but one that has been criticized on this blog (and elsewhere) for reasons you're familiar with. As a descriptive matter, though, you may well be right that that's what conservatives think is the best approach.
4.13.2009 10:00pm
Sarcastro (www):
Hmmm. Liberal vs. Conservative, equality vs. freedom.

Yeah, that's a hard decision. Ima say it's all the same thing!

Wait, does that make me a cynic or a utopian?
4.13.2009 10:06pm
Perseus (mail):
An interesting variable the survey didn't include was the legal background (or lack thereof) of the voters.

I raised the same issue on the original post. The question is to what extent legal training, if any, would narrow the views on what the law required in what is a relatively unambiguous case (based on the unanimous court decision).

Overall, the view advanced by liberals advances the rule of law in a superior manner, because liberals correctly and honestly identify ambiguity. At least it is quite clear what is going on. This gives the political branches more room to respond.

How does seeing ambiguity give the political branches more room to respond if the ambiguity is used to entrench a policy preference at a constitutional level?
4.13.2009 10:06pm
David Welker (www):
First paragraph of previous comment edited and expanded:


This is meaningless. How much do three sentences in Federalist 25 get versus three sentences in the Federalist 12? What if the three sentences in the Federalist 25 are more "central" how much weight? Should the sentences in Federalist 25 get 35 units of weight and the sentences in the Federalist 12 get 14 units? Or maybe the Federalist 25 should get only 26 unit of weight and the Federalist 12 should get 18 units of weight, which entirely flips the decision? Should Federalist papers by Madison count more than Federal papers by Hamilton? Why or why not?


How much weight should we give our sense of "plain meaning" versus "precedent"? How much weight should we give precedent by judges who we think honestly but mistakenly used the same methodology that we use versus those who used a different methodology? How much weight should we give every year that a particular precedent has survived without being overturned? How much less weight should we give a precedent when a subsequent decision has weakened its rationale without overturning it? How much weight should we give to each lower court decision that followed a precedent?

The idea that the various "weights" that conservatives happen to arbitrarily assign to various pieces of evidence renders their decisions more objective is nothing more than another self-delusion.

When there is a genuine ambiguity (and there isn't always a genuine ambiguity) any algorithm to assign weights to the various evidence supporting different interpretations is arbitrary.

One can not take an arbitrary input in the form of a decision-making algorithm and produce a non-arbitrary output. Garbage In. Garbage Out.

End of story. Anyone who says otherwise is just plain wrong.
4.13.2009 10:16pm
OrinKerr:
ruanpe,

To be clear, I am not making a normative argument here as to which approach is better: I am just suggesting that there tends to be difference in how different people view the role of a judge.

Of course, all of this presumes the usual politics aren't reversed. For example, with the NSA surveillance and torture issues in the Bush year, we had a reversal of the usual political polarity and therefore a reversal of the usual arguments.
4.13.2009 10:24pm
one of many:
Political conservatives would be more likely to see Pierre as unsympathetic and not deserving of mercy: After all, he had tried to kill his girlfriend, and he was only asking to be the permanement ward of the state because he had failed in his effort to commit suicide.


this sentence rather bothered me. I missed your earlier post and only read this one but the first paragraph description in this post had me agreeing with deportation, torture requires intent and incidental injury inflicted by circumstances instead active attempts to cause injury just aren't torture. If the only issue was would Pierre be tortured in Haiti by lack of medical facilities then he would have to go, although I (as a judge) would look for any other issue which I could hang a non-deportation decision on. It wasn't until this sentence that I was aware that Pierre was an unsympathetic person. I'm also puzzled by the allusion to mercy, he may be undeserving of mercy but that shouldn't weigh into the question of whether or not torture requires intent, it should only weigh in to the question of whether to make an exceptional case of him and not deport him if he not subject to torture. Perhaps the difference lies more in where "mercy" should apply, perhaps conservatives (I have no difficulty accepting that classification) feel that "mercy" should not define the law but instead modify how the law is applied. If mercy is the rule and not the exception then there is no virtue in following the rule of mercy; it is not true mercy to follow a merciful law, merely obedience.
4.13.2009 10:29pm
George Weiss (mail) (www):
i think conservatives are just as likely to see the law as unclear (even when clear) when they dont like what it says.

example:
the recent rule12b6 standard change in Twombley. There was clear caselaw saying that all you needed to have a complaint and get to discovery was a set of alligations that if supported by later discovery-could survive summ J. The justices didnt like that that meant a lot of crazy anti trust claims could proceed to discovery which was really expensive-so they saw the caselaw as unclear and rewrote it.
4.13.2009 11:00pm
ReaderY:
I want to make clear that while I've tried to vigorously pursue efforts to compare our law and attitudes towards abortion with those towards aliens (enemy combatants and otherwise), including the device of juxtaposing statements and arguments normally made in one context into the other, my purpose is in no way intended to make our law and attitudes towards aliens identical to what we now have on abortion. Rather, quite the opposite: it is to illustrate that we have always had grey-area cases standing between being regarded as equal to a citizen with full rights and being regarded as nothing more than a sack of meat, that these cases have always been fraught with difficulties, that it has been necessary to balance compassion with perceived necessities in ways that have never been entirely satisfactory, and that it is a very bad idea for courts to step in and say citizen here, sack of meat there, based on nothing more than their own personal views.

I think it would be very wise for Congress to add compassion exceptions to the immigration laws permitting judges to act with discretion in a limited number of cases. I think nothing should prevent a legislature from taking compassion into account even where there is no requirement to show compassion, and even where showing compassion goes against the raw interest of citizens. A fundamental difficulty I've had with Roe and its progeny has been to hear members of the court denigrate and mock compassion, treating it is if were something dirty and suspect and archaic as a motive for human endeavors, something a rational and self-respecting person ought to be free of. Such views have profoundly coarsened our society.

I honestly don't think there is a constitutional difference between a fetus and an extra-territorial foreigner. We can kill either if we want: after all, war is nothing more than organized killing, and war would be a logical contradiction if foreigners had citizen-like constitutional rights. Nonetheless, in my view, the fact that we can permit killing in no way means that we have to. And even when we kill, compassion is not wholly irrelevant. Various justices' repeated statements calling compassion an irrational sentiment in cases where we could, after all, kill anyway strike me as profoundly misguided.
4.13.2009 11:08pm
spudbeach (mail):
Quite an incisive series of posts. Historically, I think this split between "follow the law" and "do the just thing" has happened before, as witnessed by the historical split between "law" and "equity". I think there is a place for both approaches. Inflexible law is good in most cases, as the law is generally quite just. But where it isn't, perhaps equity may be necessary to avoid revolution / grumbling / diminution of respect for the law.
4.13.2009 11:20pm
Anderson (mail):
To be clear, I am not making a normative argument here as to which approach is better

No, just a normative *assumption*. ;)

Then again, perhaps the lesson of Pierre (besides: [1] don't try to kill your girlfriend, &[2] if you do, then don't drink acid afterwards) is that I'm mistaken on the law &the facts, &the 3d Circuit did get it right.
4.13.2009 11:33pm
einhverfr (mail) (www):
RPT:

It also appears as the difference between Old Testament and New Testament theology which may influence the reported opinions.

In he original survey, I said my politics were "other." From your comments, I see I was more right than I thought. After all, I am a pagan.....
4.14.2009 12:12am
Dilan Esper (mail) (www):
I don't buy this at all. In the 11th amendment context, the liberals care about text and the conservatives want to enact personal preferences. Same with the war powers cases during the bush administration.

The reason the result here came out the way prof. Kerr wanted was because he picked a 'liberal' example. It is pure selection bias.
4.14.2009 12:18am
OrinKerr:
Dilan,

Your comment seems a bit aggressive: I lead with the political explanation, so obviously I am acknowledging the political effect. The question is whether there is more to it than that, which is of course hard to know; Based on my experience, I suspect there is, while you appear to have complete certainty that there is not.

How about this: I'll look for an equivalent case with the politics reversed, and we will do another poll and see how the numbers break down. Deal?
4.14.2009 12:26am
David M. Nieporent (www):
I don't buy this at all. In the 11th amendment context, the liberals care about text and the conservatives want to enact personal preferences.
If by "personal preferences" you mean "following a precedent that has stood for 120 years," then yes.
4.14.2009 12:48am
Dan Simon (mail) (www):
Your argument, Orin, would make perfect sense if it were clear that both liberals and conservatives, in the absence of clear guidance from the law, would conclude that justice is on Pierre's side. But if--as I think is the case--liberals are inclined to side with Pierre as a matter of justice, but conservatives are inclined to side against him, then both sides are in effect following their convictions, and neither is demonstrably giving more weight to the letter of the law than the other.

In fact, my sense is that liberals are generally quite happy to support strict adherence to the letter of the law when it suits them, and that most conservatives are not above placing their hearts above their heads when it's convenient to do so. As in constitutional law, where legal principle is mere rhetorical ammunition for ideological warfare, so, too, in individual judicial rulings.

And while I'm at it, I'll go even further, and assert that so-called ideology is usually nothing more than a cover for a loose, complex form of identity politics. For example, liberals these days look at a case like Pierre, which involves an immigrant threatened with deportation, think, "my sort of people", and vote accordingly, deftly blocking out the unpleasant aspects of that vote (Pierre's culpability). Likewise, conservatives looking at this case see a law-and-order judge sentencing a criminal, think, "my sort of people", and vote the other way, ignoring the ugly consequences of their vote (Pierre's certain death).

Suppose, for instance, that you'd changed the characters around a bit--say, made Pierre a heartland American with a religious Christian family fighting to keep him alive in prison. I'd bet that you'd have switched more than a few votes in the process, on both sides. Don't you?
4.14.2009 1:49am
David Welker (www):

To be clear, I am not making a normative argument here as to which approach is better: I am just suggesting that there tends to be difference in how different people view the role of a judge.

Of course, all of this presumes the usual politics aren't reversed. For example, with the NSA surveillance and torture issues in the Bush year, we had a reversal of the usual political polarity and therefore a reversal of the usual arguments.


I for one think you are on to something here. I am not claiming to be neutral, obviously.
4.14.2009 2:25am
trad and anon (mail):
The highest profile legal debates in the last 50 years focused on whether the Supreme Court should reject then-existing precedents and constitutionalize political developments popular on the left but generally unpopular on the right.
I think you mean the last 55 years.
4.14.2009 2:28am
Hervé (mail):
Professor Kerr, might I suggest starting another poll on a case in which strictly following the law would result in the more forgiving option?

For instance, a Mexican illegal immigrant crosses the border and rapes a Texan girl. During the trial, however, a doubt appears as to whether they actually loved each others in secret, and the complaint might have been motivated by the father forcing his daughter to claim it was a rape.

Assuming more liberals will vote for acquittal, and more conservatives in favor of conviction, would we conclude, then, that the divide between "left of center" and "right of center" is not so much a matter of whether to stick to the law or not as it about being more or less forgiving?
4.14.2009 5:01am
Libertarian1L:
Yes, many liberals want exceptions for "fairness" — which raises countermajoritarian and other rule of law concerns — but the more fundamental (albeit implicit) disagreement, one that doesn't correlate well with our political spectrum, is between positivism and natural rights theory.

I happen to think the guy deserves a swift execution, but on the other hand I don't think the INS has the authority to execute him without a sentence. Delivering him to a Haitian prison is arguably *worse* than a death sentence, in his condition. A non-positivist theory would then urge that the law cannot be pressed to allow the INS to cause his death.

Now you might argue that failing to treat him effectively — or merely delivering him up to those who would further mistreat him (whether or not you call it torture — I'll stipulate that it's not torture), falls short of causing his death. I think that's right. But it's a close question; and, fundamentally, my gut rule of law instincts are repulsed by the notion that this man, despicable though he might be, can be dealt serious injury disproportionate to his conviction by an unaccountable agency.

Notice I've said nothing about "justice." I don't oppose the death penalty, and I don't particularly care that he'll suffer. On justice and dessert, he should probably die.
4.14.2009 5:10am
RPT (mail):
"Einhverfr:

RPT:


It also appears as the difference between Old Testament and New Testament theology which may influence the reported opinions.


In he original survey, I said my politics were "other." From your comments, I see I was more right than I thought. After all, I am a pagan....."

Here's my distinction:

Old Testament=law

New Testament=grace
4.14.2009 9:32am
Dilan Esper (mail) (www):
prof. kerr:

i am not 'certain' about anything, except that plenty of conservatives disregard text that they don't like the implications of. but who does it more, i don't claim to know. but i would like to see you do the experiment where the politics are reversed.
4.14.2009 10:12am
Philistine (mail):
Isn't a pretty good case where the political positions were reversed on strictly following the law the Ramos/Compean border patrol shooting case? There it seemed many conservatives argued against the strict application of the mandatory minimum to the border patrol agents in the case.
4.14.2009 11:34am
einhverfr (mail) (www):
RPT:

I was agreeing with you. However my theology makes neither law nor grace a component of it. Gifts and laws are however a normal part of civil society and should stay that way ;-)
4.14.2009 12:37pm
einhverfr (mail) (www):
Libertarian1L:

I think there are two (very different) judgements I would find acceptable. The first is that rendering someone to a foreign government where the policy of that government is to punish someone far in excess of what they would or had been be punished here is "torture" and causes excessive mental pain and anguish. Here we are talking about lifelong imprisonment for the crime of being deported due to being convicted of a crime (any crime, it doesn't matter). Along this line, we get a basic view that we can't deport Hatian nationals on conviction and time served until that policy changes.

On the other side is the idea that Pierre's request to be a ward of the Hatian state is unreasonable in this context.

It seems to me that you would be comfortable with both these sides? As long as Haiti has their policy in place, not only can Pierre stay but so can every other Hatian who would be deported to a life in prison?
4.14.2009 12:55pm
PeterWimsey (mail):
Suppose, for instance, that you'd changed the characters around a bit--say, made Pierre a heartland American with a religious Christian family fighting to keep him alive in prison. I'd bet that you'd have switched more than a few votes in the process, on both sides. Don't you?


Elian Gonzales?
4.14.2009 1:06pm
Dilan Esper (mail) (www):
Elian Gonzales?

Elian Gonzales is a GREAT example of my point. If Prof. Kerr had done the same test with his case, a majority of right-of-center folks would be saying "keep him here, damn the law" and a majority of left-of-center types would be saying "the law requires that his father's decision be permitted to stand".
4.14.2009 3:30pm
einhverfr (mail) (www):


Elian Gonzales is a GREAT example of my point. If Prof. Kerr had done the same test with his case, a majority of right-of-center folks would be saying "keep him here, damn the law" and a majority of left-of-center types would be saying "the law requires that his father's decision be permitted to stand".


I would expect most of us in the "other" category who are serious about a rule of law to insist on the same rules applying to both ;-)
4.14.2009 4:31pm
Michael Drake (mail) (www):
"But generally speaking, conservatives today are more likely than liberals to envision a judge's job as following the law."

See, e.g., Bush v. Gore.

Liberals and conservatives have predictable preferences in this case, and I would agree that the most natural interpretation of the CAT would mandate deportation. But without comparing results in a case where the situation is reversed the most that can be said is that where people -- generally -- are more motivated to reach a certain result, they will.

I agree that conservatives and liberals view the role of judges differently, but I think the upshot of that is not that conservatives are more disposed than liberals to follow the law so much as it is that conservatives are more disposed to discover that the law just happens as a matter of formal application to command their preferred outcome to be the result.
4.14.2009 6:16pm
Silverman (mail):
Prof. Kerr,
Are you familiar with the stir happening right now over the deportation of alleged ex-Nazi Johan Demjanjuk? Apparently lawyers and family for the wheelchair-bound 88 year-old are arguing that deporting him to Germany to face charges would amount to torture due to his poor health. Are the lawyers making the same arguments in this case as in the Pierre case?

Form. Student,
ssilverman
4.14.2009 6:47pm
stombs (mail):
I'd like to think I would have voted the same way even with a very sympathetic defendant, but who knows what lurks in the hearts of men? The point, for me, is that the law is supposed to be a shield against the arbitrary exercise of power. If you allow a judge to bend the law for something with which you agree (and the whether you agree with it or not, the "torture" argument is clearly a stretch), how can you object the next time it happens? By saying "I'm bigger than you"?
4.14.2009 10:21pm
Libertarian1L:
einhverfr:

I think there are two (very different) judgements I would find acceptable. The first is that rendering someone to a foreign government where the policy of that government is to punish someone far in excess of what they would or had been be punished here is "torture" and causes excessive mental pain and anguish. Here we are talking about lifelong imprisonment for the crime of being deported due to being convicted of a crime (any crime, it doesn't matter). Along this line, we get a basic view that we can't deport Hatian nationals on conviction and time served until that policy changes


I think it depends on the level of process he's given prior and subsequent to deportation. The agency has to consider the consequences for his life (including political factors of the sort you mention), balanced against the legitimate interest justifying deportation (taking into account his previous convictions) -- and that decision should be reviewable. He might still be deported in that case, but process is key; and that process can't be limited narrowly by statute and then construed to allow an agency to participate in killing him (or someone similarly situated) extra-judicially.
4.15.2009 3:46am
einhverfr (mail) (www):
Libertarian1L:

Correct. I am assuming that due process in these cases is a given.
4.15.2009 11:50am
einhverfr (mail) (www):
BTW, it is interesting to compare and contrast this discussion with the one on hate crimes and sexual consent below......
4.15.2009 5:40pm
einhverfr (mail) (www):
In Prof. Kopel's discussion of hate crime proposals below, there is a mention of what sexual consent requires. I find it interesting that folks right-of-center here tend to try to find a restrained interpretation of the law in this case, but try to stretch sexual assault law to try to cover things they find personally distasteful.

So perhaps the pot is calling the kettle black?
4.15.2009 8:01pm
Notmyleg (mail):
Interesting post, I didn't see the original, but would have chimed in as a liberal in favor of not intervening for torture, on the grounds that intentionality was required and not present. I do not, however, doubt that there was some of the influence you pointed to at play. A more complete way to test this would be through an additional hypothetical where the political valence was reversed. Where strictly following the law would be likely to lead to an outcome favored by liberals, and disfavored by conservatives. This would test the premise that there really is a difference in how the two sides view the law.

Of course, even this would not resolve the question of whether these differences are related to political expediency, or fundamental differences in interpretation of law. It may be that liberals are not approaching the question as "what is more fair" but may actually be simply interpreting the law in different ways. This, unfortunately, would seem to be incredibly difficult to test. There is certainly a point at which an interpretation becomes so implausible that anyone holding it must be doing so for political reasons, but I suspect when you reach cases that are that easy, almost no one would take the contrary position.
4.16.2009 7:03pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.