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Saturday, March 01, 2003


ANTI-CLOTURE, PRO-CONFIRMATION. Two posts below, Juan gets things off to a good start by defending one of the two positions Howard Bashman describes as "absurd." Defending the absurd is an irresistible challenge, so now I'll go to bat for the other seemingly indefensible proposition -- sort of: on Miguel Estrada's case I'm anti-cloture but pro-confirmation. In its strong form that's an impossible combination of views (without cloture he won't be confirmed); what I mean to defend, however, is a milder interpretation of the claim: I would be inclined to vote for Estrada myself but have no trouble with the filibuster and rather appreciate what it represents.

     Indeed, I don't really understand the oft-heard complaint that it is improper to filibuster a judicial nominee. Without the filibuster we would be left with a situation where George Bush is entitled to put just about anyone he wants on the federal bench because his party holds a slim majority in the Senate. Well, why should that be so? I don't think the Republican party currently has a mandate nearly so strong as such a position would suggest. I realize majority rule is the norm in the Senate as well as elsewhere in a democracy, but I think it's healthy for the party in the majority (and the party of the President) to be required to take into account the views of substantial minorities. The filibuster is forcing the Republicans to do precisely that. Think of it as a substitute for some of the checks provided by divided government, which I also like but which we don't have at the moment.

     I understand the fear that this will lead to escalation, tit-for-tat, and a final position where both sides filibuster or otherwise refuse to confirm each others' nominees. But I would be (will be) more worried about that if the Democrats made it a general practice to filibuster Bush's nominees. I don't see that happening (they already let Michael McConnell through) -- and for this reason I also am skeptical of claims that Democrats are establishing a "new supermajoritarian standard" for judicial confirmations. That isn't particularly true if they limit this tactic to the cases they regard as exceptional, and I think they are singling out Estrada for just that reason: they don't like his combination of youth and conservatism, both of which they believe are extreme. Maybe they are wrong about the extent of Estrada's conservatism, and in that case I'll feel bad for him; but that's what they think and they haven't seen enough to convince them otherwise. I expect the eventual result of all this combat over confirmations to be a fair amount of continued carnage but also a trend toward the selection of nominees perceived as politically moderate. That's not necessarily a bad thing (though I confess that I'm very fond of a number of judges who probably don't fit that description).

     The never-filibuster position becomes more understandable if one thinks that appellate judges hold jobs to which their politics are irrelevant, almost or entirely. I don't hold that view. But if one does take that position, it follows that one also should have no regrets about being the President forced to appoint moderates, and indeed might as well suggest that Republican presidents should freely appoint judges normally considered Democrats (and vice versa). If their politics don't matter, why worry about it one way or the other?


THE BUSH STRATEGY ON IRAQ: Here is Thomas Friedman's take, much worth reading.


PRO-CLOTURE, ANTI-CONFIRMATION: Howard Bashman, with whom I usually agree (insofar as he lets us know what he thinks about things), wrote yesterday that to be opposed to the Miguel Estrada nomination yet also opposed to a filibuster is an "absurd" position. I disagree -- as, apparently, do many members of the United States Senate. In fact, it is quite common for Senators to support a cloture motion to end debate on a nominee and then to turn around and vote against the nomination in question. It may well be the case that this practice is far more common in one party than the other (it is), but it is a common practice nonetheless -- and one that I believe is justified. The filibuster is a rather extreme means of frustrating the will of the majority. As such, it should only be used in the most extreme circumstances (a rule I would apply to all issues, not simply judicial nominations). The alternative is for Senate rules to turn the Constitutional requirement of a majority vote into a de facto supermajority requirement. Such a move would, in my view, be unwise and contrary to the sprit of the Constitution.


THE FORTAS FILIBUSTER: Is the Senate filibuster of Abe Fortas a precedent for the filibuster against against D.C. Circuit Court of Appeals nominee Miguel Estrada? In 1968, President Lyndon Johnson nominated then-Associate Justice Abe Fortas to replace Earl Warren as Chief Justice. The nomination was controversial, in no small part, due to concerns that Fortas might continue the "activist" practices of the Warren Court. This made Fortas a dicey choice with many Republicans and southern Democrats. But Fortas' fate was sealed by allegations of financial improprieties -- allegations that would eventually drive Fortas from the bench altogether.

In July 1968, Fortas became the first sitting justice to appear before the Senate Judiciary Committee to answer questions at a nomination hearing. It did not go well. The hearing confirmed that Fortas engaged in substantial political activity while sitting as a justice -- attending White House staff meetings and briefing President Johnson about court deliberations. The subsequent revelation that Fortas accepted $15,000 for a series of lectures funded by his former law partners and clients sealed the fate of his nomination. A cloture motion failed, and the nomination was withdrawn.

It seems to me there are important differences between the Fortas nomination fight and that of Estrada. First, the stakes were higher as Fortas was nominated to the Supreme Court. Second, there were specific and credible allegations of impropriety against Fortas. On the other hand, the explicit basis for the Estrada filibuster -- the need for more information about his views -- is disingenuous on its face, as this letter by White House counsel Al Gonzales makes clear. If Senate Democrats wanted more information, they would have posed more questions to Estrada and those that have seen the disputed memoranda from the Solicitor General's office.

Although the Fortas filibuster is, in my view, clearly distinguishable, that doesn't mean Fortas' opponents were right. For myself, I am uncomfortable with the use of a filibuster against any judicial nominee of either party. Fortas may have merited a filibuster, insofar as the alleged ethical improprieties made him unfit for the bench, but this would only make it the exception that proves the rule. Senators of both parties have unduly obstructed the judicial nominations -- and it's only getting worse.


CHRIS MOONEY COMES CLEAN: Many of those who eagerly cited Michael Bellesiles' Second Amendment "scholarship" have been eerily quiet since his career and credibility imploded in scandal. Not so Chris Mooney, who forthrightly confesses to uncritically citing Bellesiles work: "I now don my dunce cap and join the club of those who were made to look stupid by Bellesiles." Mooney should be commended for honorably admitting his mistake. It is a shame so few others in his position have done the same.

Friday, February 28, 2003


KASHRUT, LAW, AND THE FREE MARKET: Jacob Sullum has a good piece on kosher enforcement laws in Reason. Thanks to reader James Foster for the pointer.


ABOUT SASHA: His classmate Nate Oman reports on a few of Sasha's hobbies. My brother is a remarkable fellow.


WE'RE #37! Yet another blog ranking, by links.


2000-WORD PIECE BASED ON MY SLIPPERY SLOPES ARTICLE: Legal Affairs just published a 2000-word piece that one of their editors and I cowrote based on my Slippery Slopes article (March/April 2003, pp. 21-23). A nearly final version (the chief change is in the subtitle, which is now "Despite the metaphor's poor reputation, a good decision now can lead to a bad one later") is now up here. As before, here's the full version, and the the medium-length version.


FOR SOME REASON, LOTS OF TREASON TALK TODAY: Reader and old UCLA undergrad classmate Bob English suggests:
I think a better line could be drawn if the speech itself is ignored. The point, after all, is not what Axis Sally says, it's that she is acting in concert with an enemy against the US government. Does it really matter whether she does so by undermining the morale of US troops or by taking tours of enemy troop locations boosting their morale by singing love songs?
This is an interesting theory, and might work well as to treason, for the reasons I mentioned in my post earlier today. But I want to caution people against applying this approach more broadly, because sometimes the First Amendment protects speech even when it violates a generally applicable law, owing to its communicative content.

     The classic example is antiwar speech during wartime. The World War I-era cases, which have now been generally rejected, involved prosecution for violating a generally applicable law -- the Espionage Act, which barred a wide range of conduct that obstructed the recruiting and enlistment service of the U.S. Today, it's clear that a speech against the war is constitutionally protected even when it has the effect of persuading people not to enlist. Nonspeech conduct that has the effect of obstructing recruiting (for instance, bombing a draft office) is punishable. Even speech that has this effect for reasons other than its message (for instance, people shouting outside the draft office using loudspeakers) is punishable. But the law may not be used to punish speech precisely because its message interferes with the government's aims.

     The same is true in other contexts. The generally applicable tort of intentional infliction of emotional distress may not be applied to speech (at least speech about a public figure, on matters of public concern) because of the message of the speech -- that's the Hustler v. Falwell case -- even though it may be applied to nonspeech conduct that has the same effect and intent. The generally applicable tort of interference with business relations may not be applied to speech that urges political boycotts (see NAACP v. Claiborne Hardware). The generally applicable ban on disorderly conduct may not apply to behavior that's "disorderly" solely because of its communicative conduct, such as wearing a jacket with the words "Fuck the Draft" (see Cohen v. California). Generally applicable antitrust law may not apply to attempts to create a monopoly by lobbying the legislature (see Noerr and Pennington). If we ignore the fact that these laws are being applied to speech, and focus just on the intentions and effects of the action, then we'd say that the behavior is punishable. But once we realize that the law applies to the speech precisely because of its communicative impact -- precisely because of what the speech says -- we see that the First Amendment prevents the law from being applied.

     Now my correspondent's suggestion may, as I mentioned, be correct for various reasons, as applied to the Axis Sally scenario. But I do want to stress that sometimes speech is constitutionally protected even though it's covered by a generally applicable law that nowhere mentions speech, and that would apply equally to other conduct that has the same effect and that is done with the same intent.


MORE ON HUMAN SHIELDS: Reader Bob Christensen writes:
The president of Fingerprint Imaging, Inc. was interviewed on Seattle radio station KVI during the Kirby Wilbur show this morning after offering to donate 100 of their OmniDNA kits to the first 100 human shield volunteers who requested the kits. The OmniDNA kits, which are described at, are generally used for high risk personnel who are concerned about potential difficulties identifying their remains after an extremely traumatic event, or for parents of very small children, as an alternative to foot- or fingerprinting.

The president of the company described her intent as a humanitarian gesture, while urging volunteers to think ahead to the potential consequences of their actions and, in the event that the worst occurs, to consider the practical difficulties identification and return of the remains might represent. As she described it, parents and other loved one will appreciate some certainty as to events. Those tasked with cleaning up afterwards will appreciate the thoughtfulness of those who made a distasteful job marginally easier.

Finally, she allowed how, as a mother of young adults and teenagers, she hoped her gesture would cause a certain sobriety on the part of those young people considering whether or not to volunteer to stand directly in harm’s way.

All in all, a winning proposition. The company got some good publicity and compassionate conservatism got a little exercise.


Do you know whether the filibuster process has ever been challenged on Constitutional grounds? In the Estrada filibuster, it seems like the advise and consent role is in danger of turning into a 60 vote supermajority.
I've heard this argument before, but the standard response is that under art. I, sec. 5, cl. 2 of the Constitution, "Each House may determine the Rules of its Proceedings," and this applies as much to its advise and consent process (both as to appointments and as to treaties) as it does to its normal lawmaking functions. I'm not an expert on the subject, though, so there might be more to it than this.

UPDATE: Kevin Drum (CalPundit) e-mails me to point out that he asked this question last Fall, and that lawprof Jeff Cooper (Cooped Up) responded in somewhat more detail than what I gave above.

FURTHER UPDATE: Lawprof Rick Hasen thinks there's no merit to the constitutional objections to the filibuster.


HUMAN SHIELDS AND TREASON: Philippe asks whether it's so clear that human shields would be committing treason, if they continue to voluntarily act this way after war breaks out. I'm not a specialist on the law of treason, but I'm pretty sure that they would be guilty.

     Philippe points out that the shields would work only because their presence might in some measure deter American attacks on certain sites, and he asks "whether serving as a psychological shield in this way amounts to aiding or comforting the enemy as a formal matter." I think the answer is yes -- they would be helping the enemy, and though they'd be doing this by their psychological effect on the U.S., that's what Axis Sally did, too, and she was convicted (as were various other citizens who participated in Axis propaganda broadcasts).

     Philippe asks: "Suppose the human shields simply move to Baghdad and hang out there, thus raising the possibility that a war will kill Americans (but without ostentatiously fastening themselves to any targets). Or suppose they stay in the United States and announce that they will kill themselves as soon as they hear of the first Iraqi casualty. Are these instances of treason? Why are they different from someone who goes and stands in front of a palace in Baghdad to raise the emotional cost to us of bombing it?"

     These are tough questions, and I don't know the answers to them. My casual research reveals no specific answers, but that might just be because there have been very few treason prosecutions. The statute, 18 U.S.C. sec. 2381, is written in the words of article III, sec. 3 of the Constitution, and says
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason . . .
These vague terms are generally clarified by caselaw, but here there hasn't been much caselaw. My tentative preference is to treat "adhere[]" as requiring some degree of working together with the enemy, so that, for instance, vandalizing a draft office -- with no coordination with Iraq -- would be criminally punishable vandalism, but not treason, even though it might intentionally help our enemies. But whatever the rule might be, I'm quite confident in saying that an American's using his body to shield an Iraqi installation, in Iraq, doubtless with the cooperation of Iraqi authorities, is and should be a crime.


SENATOR ESTRADA? The City Journal suggests:
If this talented Republican doesn’t win confirmation, let him run against his tormentor for the Senate.

If the Democratic effort to kill the appointment of Miguel Estrada to the U.S. Court of Appeals succeeds, Estrada should return the favor by moving back to New York State and challenging his chief tormentor, Senator Charles Schumer, in the 2004 elections. . . .

Schumer must run for reelection next year, when an Estrada candidacy in New York would be especially powerful. President Bush will be running for reelection, and the Republican national Convention will take place in Gotham. Having Bush, who speaks Spanish, campaigning with Estrada in the state’s Hispanic enclaves would be a Democrat’s nightmare, and not only because it would threaten Schumer. Bush has a chance of winning New York State in 2004 -- a victory that would assure his reelection -- and a Bush/Estrada ticket in New York would doubtless boost the President’s chances. . . .
I don't know Miguel that well, but he always struck me as much more a judge type than a politician; the legal system, I think, is where his heart is; and obviously the City Journal's suggestion is not completely serious, since they hope that he will indeed be confirmed. But if he isn't, and he runs for Senator, I'll back him.


WILL ARIZONA MOVE TO THE TENTH CIRCUIT?: According to this article, a bill to break up the Ninth Circuit also recommends moving Arizona from the Ninth Circuit to the Tenth Circuit. Circuits have split before: the Fifth Circuit split in to the Fifth and the new Eleventh Circuit in 1981. But I don't know of a state or region that has been moved from one existing circuit to another preexisting circuit. (If any reader knows of this happening before, please let me know.)

     I haven't thought much about it, but my initial reaction is that this could create enormous headaches. One day the state of Arizona would be governed by Ninth Circuit federal law, and the next day it would be governed by Tenth Circuit federal law. This would raise lots of interesting issues. For example, imagine the police execute a search warrant in Arizona a few days before the switch, and then arrest the defendant in Arizona after the switch. It's conceivable that the search violated the Fourth Amendment under Ninth Circuit law, but not under Tenth Circuit law. Which law applies? The law in effect at the time of the search (Ninth Circuit) or the law in effect at the time of the charge (Tenth Circuit)?

    I suppose there are ways of dealing with this problem through various retroactivity rules, but at first glance this seems pretty messy to me.

    UPDATE: The bill is H.R. 1033. Here's the Thomas page about the bill; unfortunately the text of the bill has not yet been posted. Oh, and thanks to How Appealing for the link to the article.


JONATHAN RAUCH ARTICLE: The article that I highly recommended this morning -- and still do highly recommend -- is most easily accessible here; the earlier link was to a members-only page, though I don't understand why I could read it myself, since I'm not a member.


WAR: The American Prospect has an article about declarations of war. On the one hand, as someone who takes the Constitution seriously, I can't help but be dismayed that Congress no longer declares war but at best gives authorization for the President to use force, or not. This isn't uniquely a post-WWII phenomenon. The quasi-war with France took place under the second president, after all; and military actions against Indian nations were never accompanied by declarations of war. (Neither was the Civil War, because the Union was committed to denying that the Confederacy had international personality; the Union was suppressing a rebellion, in its official self-understanding, not prosecuting an interstate war.) But it's become pretty conspicuous since WWII, and became entrenched with the unconstitutional cession of power to the President in the War Powers Act.

And yet... as far as I know, the business of declaring wars has fallen off pretty sharply in general. And I wonder whether that's true for reasons that domestic constitutional orders can't quite affect. War, after all, is now illegal under international law. Self-defense and collective self-defense are legal; indeed, they're automatically authorized under the U.N. charter. And institutions of collective self-defense much stronger than old alliances-- the North Atlantic Treaty holds that an attack on one state will be considered an attack on all, as does the ANZUS pact-- seem to require that states be able to exercise collective self-defense more or less automatically-- presumably without being constrained by internal constitutional norms.

So military actions that aren't colorably acts of collective self-defense are illegal, and it seems odd to use the old-fashioned mechanism of declarations of war, given that they derived their meaning and legitimacy from customary international law that has now been superseded by positive international law in the Kellog-Briand agreement, the League charter, and the UN charter. And military actions that are colorably acts of collective self-defense, UN police actions, and so on (as, let's be honest, most are) are made to seem not optional, not political, not up for legitimate internal debate in the way that war once was.

Questions for the audience. How many declarations of war have there been, post-1948 at all? How many by states that were at the time signatories of the UN Charter? Is my intuition right here-- that declarations of war rested on customary international law that no longer applies, with unhappy consequences for the domestic separation of powers of constitutional states?

UPDATE: I've gotten a bunch of e-mails about justiceability and political questions. Just to be clear: I'm pretty sure that I think disputes about particular deployments are and ought to be non-justiceable-- pretty much the central case of the political questions doctrine. (I don't think the same is true for the adjudication of the War Powers Act itself, which seems to me closely analogous to the Gramm-Rudman and line-item veto cases.) So Doe v Bush, like all the similar suits that have been brought, was disposed of appropriately. But Congress ought to take its constitutional responsibilities seriously, even if (especially if?) it can't count on the courts to do so on its behalf.


NINTH CIRCUIT DENIES REHEARING EN BANC IN PLEDGE OF ALLEGIANCE CASE: Here's the order, with opinions attached. I predict that the Supreme Court will grant certiorari, and reverse.

UPDATE: Since I've erred a bit in my predictions in the past, I thought I'd mention that this time at least I got it right. And I do feel quite confident in my prediction that the Court will grant certiorari, and reverse.


PACIFIST CHICAGO: Well, Here's something interesting. Via Michael Green, I see that there's a new batch of commentaries on the possible war with Iraq from my University of Chicago colleagues, sponsored by a group called "No War in Iraq." (This is funded, I note without further comment, by the university chapel and by the Human Rights Program.) The editor of the collection, Maureen Tracey-Mooney, says
We wanted readers to get both sides, to see the complexity and come to an educated decision, as we had. When we started soliciting essays, we realized that this task would be more difficult than we had originally thought. While it was fairly easy to find faculty who opposed the war, finding faculty who supported it was a much more difficult task. We followed every lead we had and in most cases learned that the faculty we were told probably supported a war really were not sure where they stood (This is with the exception of Richard Posner of the Law School, whoes contribution and willingness to participate despite the lack of other pro-war essays we greatly appreciate). While we were trying to convey the honest disagreement within the academic community at the University, we found it difficult to find many professors who supported a war in Iraq. Our impression was that there may not be so much disagreement after all, and that there is general skepticism surrounding the Bush administration's policies on Iraq.
Michael observes that "most faculty who were inclined to support the war, or at least not oppose it, were reticent to contribute on the grounds that they did not think they knew enough. And who might that be? You got me." This suggests that he was asked to contribute, and declined. But Ms. Tracey-Mooney doesn't report that supporters of the war were reulctant to participate. She says that they couldn't be found t all. This seems just odd to me. Jean Bethke Elshtain has publicly defended the justice of war in Iraq. Based on his public views about other related topics, I'd be willing to gamble that my colleague Charles Lipson is a supporter, though I haven't asked him. My colleague Dan Drezner writes about his views on Iraq often; and his support is well-known to some of the participants in the forum. I talk about the war much less often than Dan does, because he's an international relations and foreign policy expert and I'm not, and so he more often has something new to say. But I'm certainly a supporter as well, and I've said so relatively often. (And, after all, Dan and I are the new Chicago School!) I could offhand name another dozen people who I'm pretty sure support the war. Most aren't experts in security policy or related fields, but then, neither are several of the anti-war contributors.

Now I have no idea whether any of these people were asked to contribute; I wasn't. I'd never heard of the thing until I saw Michael's link. I might well have said no if asked, since a) I tend to be suspicious of claimed intentions for balance from groups with names like "No War in Iraq" and b) my support isn't really related to my scholarly work. But I wouldn't have thought that it was hard to so much as find faculty who are in support of taking action.

UPDATE: Michael follows up. Some of his questions, and my answers:

What does it say about our teaching and curriculum that curious undergraduates who are concerned about politics are unaware of faculty members who have different political views than their own?
If that accurately describes the situation then it seems extremely unfortunate to me. If it's the case that undergrads are simply, in general, not aware of the political views of their professors, that seems to me basically to the good. (This is one of the things that worries me about blogging or otherwise writing about current politics; I don't want undergrads to think that they have to be concerned about fear or favor based on political disagreement or agreement with me.) But if they know their professors' politics, and only know professors who agree with their own political views, that's bad. Of the undergrads whose political views I have a general sense of based on papers they've written for me there's certainly a pretty wide range of opinions. But fairly few of them are activist-types. It's conceivable that activists select for professors who agree with them more than other students do.

Would the pro-war folk like to have their opininions published like this?
As I said, I probably would have declined such an invitation; the forum wouldn't appeal, I don't like to put my political views forth in such a directed-at-undergrads way, and my view about whether to go to war at all is an informed-citizen view, not a based-on-my-scholarly-knowledge view. By contrast, my argument about federalism and the Kurds in a postwar democratic Iraq-- not whether to go to war but what shape institutions should take afterward-- flows from conclusions I draw in my research; that, I would write or speak about even to an exclusively-undergrad audience.


HUMAN SHIELDS. Is it so clear that Americans who serve as human shields in Iraq are guilty of treason in other words, of providing aid and comfort to the enemy? It might appear so just from the words involved: a human shield must be shielding something; the something can only be the enemy; this is aid and/or comfort. But the usage seems figurative. I dont think anyone expects the human shields to do any literal shielding. They simply will be blown up along with whatever installations they occupy. The idea, rather, is that their presence in those installations is supposed to make us hesitate before destroying them by troubling our collective conscience. They are psychological shields.

     This leads to two questions. The first is whether serving as a psychological shield in this way amounts to aiding or comforting the enemy as a formal matter. Suppose the human shields simply move to Baghdad and hang out there, thus raising the possibility that a war will kill Americans (but without ostentatiously fastening themselves to any targets). Or suppose they stay in the United States and announce that they will kill themselves as soon as they hear of the first Iraqi casualty. Are these instances of treason? Why are they different from someone who goes and stands in front of a palace in Baghdad to raise the emotional cost to us of bombing it?

     I have no doubt that there are possible answers to those questions, and I’ll look forward to hearing Eugene articulate them; he is good at this sort of thing. (Does everything really depend on "coordination" with the enemy? What if the enemy ignores them? What if the enemy just gives them free shuttle-bus rides to downtown Baghdad from the airport?) But then I have a second question. I think the best way to deal with human shields is to disregard them, making clear that we are utterly indifferent to their presence – that we steel ourselves and deny that they give rise to the emotional costs they are intended to create. I am not sure it is consistent with this attitude to then prosecute any who survive for aiding the enemy. For once you deny that they are creating emotional costs, they come to seem no different from a consequential standpoint from Americans who happen to be in Baghdad innocently. They did not, in fact, aid the enemy in any sense. (You might say they wanted to, but the act they attempted to commit is not, in fact, an act that we regard as aiding the enemy; it's not attempted treason any more than attempting to commit an "anti-war" suicide in this country would be.) On this view, shouldn’t the law as well as the military ignore them?

UPDATE. A reader pointed me to this link, which may suggest that I am laboring under some false premises in my arguments above: it quotes a statement from Richard Myers that “the U.S. military would take any possible civilian shields into account when making targeting decisions” (presumably he means we will try to avoid them -- but presumably he also is referring to non-volunteers); it further suggests that we have an obligation to avoid human targets under international law. I can’t comment on the international law implications because I am not an international lawyer, but I must say that I generally would regard it as a mistake to worry about human shields as a matter of law or policy. Doing so, like bargaining for hostages, encourages the use of them.


BISSEXTILE: By the way, as per my earlier post, now is a good time to remind readers that I'm bissextile.

UPDATE: Told my class this morning that I'm bissextile. They seemed quite amused (once I explained, though perhaps even before I did).


"DEMOCRATS FOR NATIONAL SECURITY": Jonathan Rauch, who's always worth reading, has an article on this group, and on why Democrats need to embrace its message -- both because it's right, and because it's politically necessary for them.


ROBERT H. JACKSON ON THE FEDERAL PROSECUTOR: I recently re-read then-Attorney General (later Justice) Robert H. Jackson's famous April 1, 1940 speech at a conference of United States Attorneys about the role of federal prosecutors in law enforcement. It's a classic statement of the need for prosecutors to exercise discretion wisely to avoid abuses of law enforcement powers. The whole thing is very much worth reading, but I can't find a copy on-line. Here are two choice excerpts:
   Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called "the shadow case by one's daily life." Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.
Here's the conclusion of the speech, my favorite part:
   The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with umility.
Jackson's language is a bit dated, but the basic point survives. The full cite for the article is Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3 (1940-1941).


SPEECH AND TREASON: As I've written before, I strongly believe that antiwar speech is generally constitutionally protected, even if it does indeed help the enemy (as antiwar speech often does). Nonetheless, I think it's worth keeping in mind that even this fundamental principle has some uncertainty around the edges.

     The best example is the Axis Sally scenario: An American citizen makes propaganda broadcasts for the enemy during time of war, aimed at demoralizing the troops. The very fact that the speaker is known to be an American citizen (and these things can sometimes be proven or disproven, so a fake may not be as good) could give the person extra credibility, especially if her pitch is that she's really looking out for the best interests of America and American soldiers, that the war isn't going well for them, and that it's in America's interest to withdraw.

     I think the speaker here really should be punishable for treason, and the First Amendment ought not be a defense. But why, exactly? My tentative thinking is that the active coordination with the enemy removes this from the zone of legitimate, constitutionally protected dissent. Mere intent to help the enemy shouldn't be enough; among other things, if it were enough, then lots of legitimate domestic dissenters who do not possess this intent could still be convicted -- and therefore would likely be deterred from dissenting -- by juries who infer the worst about their motivations. But active coordination should be sufficient. Going to a country with which we are at war to broadcast messages aimed at weakening American morale would be punishable. I suspect that doing the same inside the U.S., within an organization that one knows is working together with the enemy government, would be punishable as well (though I can certainly see the potential for abuse in such a doctrine).

     Now perhaps I'm mistaken, and even the speech in the Axis Sally scenario should be constitutionally protected, either for its own sake or for fear that allowing such speech to be punished would lead to the punishment of still more speech, including speech by legitimate domestic dissenters. But that would be quite a surprising result, and my tentative sense is that it cannot be correct.

     Incidentally, here's what a federal court of appeals said about the First Amendment question in Chandler v. United States (1949), an Axis-Sally-like case. I don't fully agree with this, and at least part of the discussion may no longer be accepted by courts today; Schenck v. United States, for instance, is generally thought to no longer be good law. Still, it's a pretty detailed and thoughtful analysis, and worth reading:
[Chandler argues that] mere words, the expression of opinions and ideas for the purpose of influencing people, cannot constitute an overt act of treason; that appellant had a right to broadcast, or otherwise disseminate to the American people, the ideas which coincided with the Nazi propaganda line; and that therefore his preliminary steps to that end -- his attendance at conferences of commentators, his preparation of commentaries, his speaking into a microphone to make recordings -- cannot be treasonable acts.
constitutional limitation upon treason prose utions for the making of critical speeches. 'We do not lose our right to condemn either measures or men because the country is at war.' Chandler owed allegiance to the political entity the United States, not to the person of the President nor to the party in power for the time being. The framers of the Constitution, in drafting the restrictive language of the treason clause, apparently had in mind to eliminate the historic misuse of treason prosecutions as an oppressive instrument of domestic political faction, as indicated in the study on 'Treason in the United States' by Willard Hurst . . . (1945):
'What is suggested is that the historic policy restrictive of the scope of 'treason' under the Constitution was most consciously based on the fear of extension of the offense to penalize types of conduct familiar in the normal processes of the struggle for domestic political or economic power. The sale of provisions to an enemy in wartime, or the conveying of intelligence to him, or the proffer of counsel and assistance to his agents, are types of conduct quite distinct from activities of a sort to which political opponents or economic groups would normally resort in their efforts to influence public policy. There is less danger that charges of this type could, in view of that sharply defined character of the conduct in question, be used to suppress free competition for the power to direct the policies of the republic.'
Thus, a citizen in the exercise of his ordinary political rights may -- intemperately as he pleases -- criticize the President for getting the country into war, hold up to ridicule the bungling and incompetence with which our civilian and military leaders are conducting the war, express the view that we cannot possibly win the war, and that the thing to do is to vote in a new administration which will negotiate a peace on the best terms obtainable and save the country from a greater disaster. The speech may tend to weaken our country in its war effort by inducing divided counse s and a spirit of defeatism, and in that sense may be of aid and comfort to the enemy. Such, indeed, might be the speaker's purpose. But if it be assumed that the utterance in the case supposed would not be treason, whatever the speaker's purpose, the immunity would be afforded, not to encourage treasonable efforts to aid in the enemy's triumph, but in order that, in the course of the normal activities of political opposition, the expression of honest criticism and sincere conviction as to what is best for the country may not be fettered by fear of a jury's finding of traitorous purpose in the passion and tumult of a subsequent prosecution for treason. Assuming that the utterances in the case supposed would not be treason, they might still be punished as sedition, subject to the requirement of the First Amendment that the utterances must be in such circumstances and of such a nature 'as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.' Schenck v. United States, 1919 . . . .

In the present case, however, it cannot be said that what Chandler did was merely exercising his right of free speech in the normal processes of domestic political opposition. He trafficked with the enemy and as their paid agent collaborated in the execution of a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully. We have found no indication of a reluctance on the part of the framers of the Constitution to punish as treason any breach of allegiance involving actual dealings with the enemy, provided the case is established by the required two-witnesses proof.

It is preposterous to talk about freedom of speech in this connection; the case cannot be blown up into a great issue of civil liberties.

What we already have said is perhaps sufficient to indicate the answer to a related argument by appellant, that 'If words can be acts of treason, they must at least meet the test of 'clear and present danger' established in the sedition cases' as a deduction from the First Amendment. Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment. Congress may make criminal any type of dealing with the enemy which in its judgment may have the potentiality of harm to our national interests, including acting as a commentator on the enemy's short wave station. Conviction could be had under such a criminal statute whether or not the prohibited acts, in the particular case, actually created any clear and present danger of substantial harm to the United States.


YOU'VE BEEN ADMITTED TO CORNELL . . . NOT!: From The New York Times:
   Virtually everyone who has used e-mail knows the feeling: You press the send button and realize that you just sent something embarrassing to someone by mistake.
   That happened to Cornell University on Wednesday: It sent welcoming letters to 1,700 high school students who had submitted early-decision applications, including nearly 550 who had already been rejected in December.
   "Greetings from Cornell, your future alma mater!" the e-mail letter began. "Congratulations on your acceptance into the class of 2007!"
   Within a couple of hours the university followed with an "oops" letter, admitting that it had made a mistake and offering its apology "for any confusion and distress this message has caused."


IT WOULD BE MY BIRTHDAY SOON, if I had a birthday this year.


HUMAN SHIELDS MAY BE GUILTY OF TREASON, if they're still shielding when the war starts: Lawprof Eric Muller points this out, and I think he's quite right. One possible twist: Duress is a defense to a charge of treason, so if Saddam forcibly keeps them there once the war starts, they might be able to avoid a treason conviction; but if they continue to voluntarily act as human shields, that's pretty clearly treason. (Thanks to InstaPundit for the pointer.)

Thursday, February 27, 2003


PLACES I'M NOT TODAY: I'm not in Cambridge, which means that I missed the memorial service for John Rawls. Fortunately, Matthew Yglesias didn't.

I'm also not in Brussels, which means that, unlike Chris Bertram, I won't be able to attend this conference on the topic "cultural diversity versus economic solidarity: Is there a tension? How must it be resolved?" I know and admire many of the presenters. (None will be putting forward my position, which is, "Of course there's a tension, and so much the worse for economic solidarity.) I'm looking forward to reading the papers.


ONE MORE PERSPECTIVE ON THE SEVENTEENTH AMENDMENT, and then I plan to move on to other subjects, unless something really important or interesting comes up. Reader Seth Tillman writes:
[T]he State legislatures hated electing Senators -- that is why they wanted to be rid of it. Electing Senators trumped all other business and often froze the legislature from normal, i.e., local or truly state, matters rather than matters of national concern. The Lincoln/Douglas debates were a good example -- the debaters toured Illinois to get state reps and senators elected who would choose the open Illinois U.S. Senate slot. Separate elections freed the states and allowed local elections to be determined by local issues.


REPEAL OF THE SEVENTEENTH AMENDMENT: Readers Curt Wilson and Mike Breeland raise an interesting point: Say that the Seventeenth Amendment is repealed, and each state legislature is instead allowed to decide whether Senators would be elected by popular vote or by the state legislators. I assume the legislators would prefer to make the choice themselves -- more power for them, and more goodies that they can extract from Senators as a condition of their vote. But the legislators also wouldn't want to alienate the voters, and I assume many voters would like Senators to be elected directly: Even before the Seventeenth Amendment was enacted, many states provided for popular elections (which were technically advisory voters, but were in practice politically binding). How many states do you think would really go with legislative selection, and how many will go, due to public pressure, with popular vote? And what would be the consequences of some Senators being popularly elected and others being elected by state legislatures, with the rule varying from state to state? Would, for instance, one class of Senators have more power than the other?

     One alternative, of course, is simply to repeal the Amendment and leave the states with no option: As before 1913, Senators would have to be chosen by legislators. But if the public really wants popular election, it could pressure legislators into conducting advisory votes, and being bound by the results of those votes on pain of strong public displeasure -- again, that's what was done in some states before 1913.


WE ARE NOW A "VOLOKH BLOG EMPIRE", according to Larry Solum's Legal Theory blog. A nice post by Larry Solum, by the way, canvassing conservative and libertarian reactions to whether anti-sodomy laws are constitutional.


ANOTHER AMUSING ANIMATION, courtesy of lawprof Myron Moskowitz.


SOMEHOW ODDLY PATHETIC -- OR SHOULD WE THINK CONSUMER-FRIENDLY? In the L.A. Weekly -- a very Left alternative newspaper here in L.A. -- I saw an ad for The Jet Strip, a local strip club, that contained the following box:
Sunday and Monday 6 pm to 9 pm
Executive Lap Dance
Jeez, early bird specials for lap dances? What has the sex trade come to?


SEVENTEENTH REPEAL: I responded to Todd's post on repealing the 17th here, 'way back when.


JEWS AND ENLIGHTENMENT: The Chronicle has a very interesting article on a book by historian Adam Sutcliffe, claiming that anti-Semitism was central to the Enlightenment because Jews represented tribalism and mythical thinking, and because of the enduring effects of the excommunication of Spinoza. I haven't read the book, but I will (at some point). Based only on the article, three initial thoughts come to mind. 1) The turn to Spinoza and the "radical Enlightenment" lately makes me uneasy; I think it's returning to an old-fashioned monolithic way of looking at the age of enlightenment, and disregarding what intellectual historians have taught us in the past few decades. And Sutcliffe's story seems to be part of that turn. Spinoza and Voltaire aren't the whole of enlightened 17th and 18th-century thought; and we already knew that Voltaire was obsessive in his hatred of all things religious, local, cultural, and tribal. 2) Voltaire hated all things religious, local, cultural, and tribal. I'd be hard-pressed to believe that Judaism was more of a preoccupation for him than, say, Catholicism. Sometimes (though not always) his anti-Catholicism went disguised for obvious reasons; but the disguise was pretty thin. 3) It might be that critiques of Judaism can be found among enlightenment thinkers from all countries, and that this is not true of Catholicism or Protestantism; but surely that's in part because there were Catholic and Protestant states that prosecuted people for heresy, while there was no Jewish state to do so.


AMENDMENTMAN -- REPEALING THE SEVENTEENTH AMENDMENT? The Seventeenth Amendment was not popular with several of my correspondents. The Amendment, as you may know, was enacted in 1913, and required that Senators be elected by direct popular vote; until then, they were elected by the Legislature. Some readers suggested that the Amendment should just be repealed outright, which would at least formally require vote by state Legislatures -- though even before 1913, many state Legislatures ended up being practically bound by advisory popular votes, if state law provided for such votes. Others suggested that states should be free to set up either popular vote, legislative election, or some other such system. The broad theory, as reader Josh Trevino suggests, is this:
This would allow states -- as states -- their proper role in the Federal government. It would also force greater civic participation inasmuch as races for the state legislature (currently rather ignored -- I can't even name my statehouse rep) would become quite contested. Finally, it would reduce ticket-splitting between state and national levels; you'd be much less likely to see a emocratic Senate ramming unwelcome legislation down the throats of Republican state governments, and vice-versa.
Oh, and one reader (whom I know personally, and whom I find quite reliable) said that Justice Scalia once publicly suggested that repealing the Seventeenth Amendment would be a good idea (not that he suggested that it was likely to happen). The Conspiracy's own Todd Zywicki has likewise expressed his support for this; so has Clayton Cramer.

     I'm not sure what's the right answer here, and I'm not an expert on this field -- in which, as the following points will suggest, judgments should be formed based on an understanding of political structures, and not constitutional rules in the abstract -- but let me suggest a couple of broader points:
  1. Even those who like the idea of more state power vis-a-vis the federal government should distinguish three visions of the world: (A) what state-federal relations were like before the Seventeenth Amendment; (B) what state-federal relations would have been like today if the Seventeenth Amendment had not been enacted; and (C) what state-federal relations would be like today (or in the near to medium-range future) if the Seventeenth Amendment were now repealed. Once upon a time state governments had considerably more control over what goes on in their own states, and over what the federal government does, than they do now. Perhaps they might have kept this control if it weren't for the Seventeenth Amendment, though I'm not sure about that. But now, (i) the more integrated nature of our economy, (ii) the more integrated nature of our national identity, and (iii) the far greater tax revenues received by the federal government make me doubt that we'll see that much return to state authority, no matter how Senators are elected. Repealing the Amendment might make some difference, and it might even do some good (though I'm not sure whether it would; much depends on what you think of state legislators). But I doubt that it'll make much of a difference.

  2. If one really wants to know what would happen if the Amendment were repealed, one should probably start by focusing not on state and federal governments as such, but on political parties -- their actual power structures, and the way those power structures will be changed by the new system. Presumably this would substantially increase the power of state legislators in the national party, at the expense (in some measure) of federal officeholders, especially Senators, and of state governors. It would also reorient the national party's fundraising priorities, since control of the federal government would directly turn on the outcomes of state elections.

  3. It would also be interesting to see how this would affect the campaign finance system. Senatorial campaigns are now tremendously expensive; presumably they'd become vastly less so (though some organizations might still spend money trying to create a popular climate in which legislators would feel pressured to vote in a particular way). On the other hand, there'll be a lot more at stake in each Vermont state legislative race. Good or bad result? Hard to tell for sure, but it may be one of the earliest visible results of any such proposal.
In any case, just my very tentative thoughts on a field that isn't really my own.


ONGOING STORIES: Glad to see that MSNBC is taking heat for hiring Michael Savage (of whom I had never heard before he was hired-- but I've since read easily enough vile quotations to feel justified in saying he should be canned before he starts); and that Howard Coble continues to take heat for praising the internment of Japanese-Americans during World War II.


RAPID RESPONSE: Julian Sanchez and Dana Berliner both have sharp responses to Ramesh Ponnuru's piece on libertarians, constitutional law, and sodomy.


MORE TNR: The editors have named the space Dan Drezner and I rotate through at TNR online: Chicago School. Heh.

They've also picked up on "scholar-blogger," a locution I think I coined (though I didn't realize it at the time) in this post 'way back when.


THE ANTI-FEDERALISTS: My new New Republic column is online. For previous posts on the same topic, see here and here. See also this James Robbins piece from NRO. [UPDATE: See also Josh Marshall.]

And, according to this Washington Post story that came out after my column was done, the sell-out is now complete.
The United States has promised to prevent Kurds from imposing a federation-style government in postwar Iraq that would ensure their continued autonomy and agreed to allow Turkish troops to enter northern Iraq and observe the disarmament of Kurdish militias once fighting has stopped, Turkish officials said today.

Some of the documentation for my TNR column:

Paul Wolfowitz's recent statements on Iraqi democratization are here, here, here, and most importantly here-- his remarks to the Iraqi Forum for Democracy. The word "federal" doesn't appear in any of these transcripts. In the last one, Wolfowitz says:
I’d like to summarize briefly, the principles of the U.S. government. They are:

First-and this is really the overarching principle-the United States seeks to liberate Iraq, not occupy Iraq.
Second-Iraq must be disarmed of all weapons of mass terror, weapons production capabilities, and the means to deliver such weapons. This is a complex and dangerous task for which detailed planning is underway.
Third-we must eliminate Iraq’s terrorist infrastructure.
Fourth-Iraq must be preserved as a unified state, with its territorial integrity intact. The United States and coalition allies will provide for the safety of the Iraqi people from day one.
Fifth-with coalition partners, we must help the Iraqi people begin process of economic and political reconstruction. ...
In moving toward that goal, there are many questions that Iraqis themselves must answer:...
How to ensure the unity and territorial integrity of Iraq while providing the appropriate level of local self-government? This is an issue the United States confronted in the framing of our Constitution. While our answers have worked well for us, Iraqis have to find their own answers suited to Iraq’s unique circumstances....
There are some who ask the question: Is democracy possible in Iraq?

There are even some who doubt that democracy could ever take root in the Arab world. Here’s my response to the critics:

Look to the people of northern Iraq. Beyond the reach of Saddam Hussein and his regime for a decade, they’ve shown an impressive ability to manage longstanding differences and develop relatively free and prospering societies.
Look at the final section first. The experiment in self-government isn't being conducted by "the Kurds;" it's "the people of northern Iraq." This is plainly deliberate obfuscation.

As to the first part: the United States is committed to the unity and territorial integrity of Iraq as a first principle. How power is to be divided or distributed within Iraq does not rise to the level of being something to which the U.S. is committed. Among the questions to be asked is the "appropriate level of local self-government," the stuff of city councils rather than of powerful provinces. Wolfowitz is perfectly right that the institutional details of the American constitution are inapplicable to Iraq. But Wolfowitz is shockingly agnostic here, expressing no enthusiasm whatsoever for any self-government outside the center, avoiding the words federal and federation, and not giving the slightest hint how much "local self-government" might be "appropriate." Compare this to the statement by the Iraqi opposition conference last December: Iraq ought to be "a democratic, parliamentary, pluralistic, federal" state. Endorsing those principles doesn't require a commitment to a particular institutional design; it does require a view that a unitary centralized governing structure has not been condusive to freedom for Iraqis.

Elsewhere, Wolfowitz said
"These ethnic groups have not had decades of slaughtering one another as happened in the Balkans. The problem in Iraq is a regime that slaughters everybody, it's equal opportunity repression."
While Saddam Hussein hasn't been good for anybody, "equal opportunity" clearly isn't true. Shi'ite Arabs and Kurds have been the targets of particularly brutal repression. Sunni Arab villages weren't gassed; they weren't where civilians were slaughtered by helicopter gunships; they weren't the scenes of post-'91 purges. The Shi'ites and the Kurds have particularly strong reason to want to protect themselves. The Shi'ite majority figures that, in a democratic Iraq, it will be able get that protection. The Kurds will continue to need a self-governing region, and will continue to have every reason to be suspicious of any regime that doesn't accord it to them.
And of course I'm picking on Wolfowitz in particular because he's been the only administration official to keep emphasizing democratization and liberalization at all Rumsfeld's statements haven't mentioned federalism, either. Bush didn't in his AEI speech.

Here is the Kurdistan Regional Government's draft constitution for the Kurdish region of a democratic Iraq, and here is its proposed constitution for a federal Iraq. I don't, by any means, endorse everything in these documents. They declare the state religion to be Islam. They opt for a presidential system, which tends to be a bad idea in states with traditions of strongman rule. And they divide the country into just two mega-regions, one Kurdish and one Arab. Those regions, rather than smaller provinces, are guaranteed equal representation in the upper house of the legislature. There is no provision made for the distinction between the Sunni and the Shi'ite region, no recognition of the special status of the marsh region or of the Turkmen. The Kurdish region is expanded unreasonably, and the descendants of Arabs who moved into formerly Kurdish regions are to be repatriated. Rigid Kurdish/ Arab quotas are to be enforced on a variety of state activities. Well-designed federalism for a multiethnic state aims for complex balancing and dispersals of power. These proposed constitutions would spell real trouble. (They would also, of course, be more just and democratic than any really-existing Arab government, if they could be stably implemented. They can't be. They're statements of negotiating position, not viable constitutional proposals.)

Further reading: I've written a bit on ethnic federalism in my academic work, but the best pieces are currently in press and not yet published. The good news is that even my best work on the subject doesn't compare to the first-rate work that has already been published by others. I'll point you to Donald Horowitz's definitive and magisterial Ethnic Groups in Conflict; the various chapters and articles written over the past decade by Wayne Norman; and Will Kymlicka, Politics in the Vernacular. The best website I know of for starting to dig into the academic literature on federalism is Publius: the journal of federalism. I note that the American Enterprise Institute is holding a forum on ethnicity, constitutionalism, and federalism in postwar Iraq next week, though I can't quite sort out their understanding of the issues involved.


THE BIG INTERVIEW. After watching Dan Rather's interview with Saddam Hussein last night, I was left sorry that some of the best parts evidently got left on the cutting room floor -- i.e., the part where Rather asks Saddam why he removes the tongues of Iraqis who speak against him, and the part where he asks the President about his remarkable feat of getting 100% of the votes in the last election -- I mean, c'mon, what's the secret? Obviously he must have pollsters and focus groups up the wazoo to be able to keep his approval ratings so high, but so did Bill Clinton, and he still didn't manage to get 100% of the votes. Actually what I really wanted was for Rather to say that he's heard Saddam has a half-dozen look-alikes wandering Iraq as decoys; how can he know that his interview subject is the real one? At which point he starts trying to pull the moustache off of Saddam's face just to make sure it's real, as in Conan Doyle's story The Red Headed League.

     But perhaps those are segments CBS is holding in reserve for tonight's evening news. Somebody else will have to let me know.

UPDATE. I indulged in a bit of blogger's license in my allusion to The Red Headed League, of course; the moustache of Mr. Jabez Wilson was not quite the issue there, as one reader hastened to point out:

“‘This is Mr. Jabez Wilson,’ said my assistant, ‘and he is willing to fill a vacancy in the League.’

“‘And he is admirably suited for it,’ the other answered. ‘He has every requirement. I cannot recall when I have seen anything so fine.’ He took a step backward, cocked his head on one side, and gazed at my hair until I felt quite bashful. Then suddenly he plunged forward, wrung my hand, and congratulated me warmly on my success.

“‘It would be injustice to hesitate,’ said he. ‘You will, however, I am sure, excuse me for taking an obvious precaution.’ With that he seized my hair in both his hands, and tugged until I yelled with the pain. ‘There is water in your eyes,’ said he as he released me. ‘I perceive that all is as it should be. But we have to be careful, for we have twice been deceived by wigs and once by paint. I could tell you tales of cobbler’s wax which would disgust you with human nature.’"


OLD SCHOOL: The Boston Globe's Sunday Ideas page has an article I highly recommend by Anne Bruder and Mark Oppenheimer, about the outdated image of prep schools that still shows up so often in popular culture. This has been a peeve of mine for years. I was a Jewish scholarship student at Exeter. After graduation, I got attitude at Brown -- Brown, mind you-- from kids who attended public high schools in suburbs my family couldn't possibly have afforded and who thought that prep school-- though apparently not an Ivy League college-- was a morally intolerable, elitist, class-privilege institution. I also got, more than once, apparently-genuine shock that prep schools accepted Jews. (The Brendan Fraser movie about anti-Semitism at prep schools, "School Ties," set in the 1950s, came out while I was at Brown and may have been responsible for this.)

I don't go see those movies anymore. Kevin Kline starred in a dreadful-looking one last year, and I was quite happy to skip it. In addition to being tired of the endless portrayals of prep schools as homes for rich WASPy boys, I'm tired of the ever-present association of prep schools with death: A Separate Peace, The Dead Poets Society, A Prayer for Owen Meaney, etc. Gilmore Girls features what I gather is a pretty fair representation of a day school (= not a boarding school), though often deliberately over-the-top. At least the school is co-ed, like virtually all prep schools, and there has yet to be a symbolically weighty death. But by virtue of being a day school its student body has geographic limits that don't apply to boarding schools (and so the school seems pretty overwhelmingly white, whereas boarding schools now have basically the same racial makeup as elite residential universities that practice affirmative action).

Wednesday, February 26, 2003


AMENDMENTMAN IS BACK! Over nine months ago, I posed the following challenge:
CONSTITUTIONAL AMENDMENT: Here's a completely unrealistic but possibly amusing thought experiment -- imagine that you had the superpower to add one amendment to the U.S. Constitution. (Let's call you Amendmentman or Non-Article-V-Woman.) What would it be?

     Sky's the limit, no? But remember: All you're doing is adding the amendment; then you're walking away. The amendment will be interpreted and enforced (or ignored) through the normal political process. An amendment saying, for instance, that "All politicians shall be honest and focused on the best interests of the nation" will therefore mean nothing, because it will be entirely unenforceable.

     The amendment will also be repealable through the normal process -- if the repeal gets ratified by 3/4 of the states, and is proposed by a 2/3 vote of each house of Congress or a constitutional convention called by 2/3 of the states, then the amendment will vanish. So don't choose something that's too out of step with public opinion, since it will just get promptly repealed. Decriminalization of cocaine and heroin, for instance, would probably be stymied by this, whatever its merits might be in your own opinion. (Technical note: To prevent self-entrenching amendments, assume that the amendment will be repealable under currently-existing constitutional procedures and voting rules, even if it purports to change those procedures and rules.)

     Finally, remember that this is your one magic bullet -- don't blow it. For instance, enacting the Equal Rights Amendment, which would bar the government from discriminating based on gender, would probably do little good, since that's already pretty close to the current law under the Supreme Court's jurisprudence since the 1970s. Likewise, an amendment barring laws that criminalize consensual noncommercial private sex between adults would probably not help much; though some states still outlaw some such sexual acts, those laws are pretty rarely enforced. So choose something that you think will not only do good, but will do more good than anything else you can think of. (Note also that I will try to enforce a "single subject" rule, which will keep you from using the amendment to implement a grab bag of unrelated goodies.)
After doing this, I -- to my continuing shame -- almost completely failed to respond to the amendments that streamed in. The chief reason is 159, which is the number of submissions that I got. An embarrassment of riches, indeed; and as I put things off, more and more came in. They piled up in my folder, and while I responded to a few of the submissions -- note the posts about sunset provisions (not to be confused with blue sky laws) and the "and-we-mean-it" proposals -- most have been gathering e-dust. You cunctator!, people berated me. (OK, they didn't use quite that word, but that's what they meant.)

     No more delay, no more denial. I will now, slowly (at the rate of a couple of topics a week), begin going through the backlog; I hope you'll find them to be thoughtprovoking. However, a few rules:
  1. No more submissions! Sorry, that's got to be the rule, or else I'll just give up again in despair.

  2. No corrections or revisions of past proposals. You had your chance; too much work to allow editing now.

  3. No guarantees that I'll focus adequately on each person's specific suggestion. Many of the proposals are similar yet subtly different; for the sake of my time and yours, I'll group them together, though I realize that this might omit some important nuances.
Please adhere to these rules, and don't try to persuade me otherwise -- the remaining 140+ submissions are daunting enough to get through at they are. Hope you enjoy what follows; I hope to have the first one up tomorrow or Friday.


SAN ANTONIO RADIO PROGRAM, KTSA-AM, 550: Turns out they're having me on for the whole hour from 7 to 8 pm Central, and they want me to talk about broad questions of government power, law enforcement, and privacy, and not just bookseller records. Fine by me. If anyone in San Antonio wants to call them up, feel free -- and mention the blog!


"STRONG ARGUMENTS BOTH FOR AND AGAINST THE WAR": Cathy Young, an always thoughtful non-isolationist libertarian, has a good column on this subject.


"JUDGE REJECTS CHALLENGE TO FBI SPY POWER": An excerpt from a very short article:
The FBI does not have to explain why it applied for search warrants to bug homes and tap phones of defendants in a terrorism case, a federal judge ruled Wednesday in an early test of the government's new and expanded spying powers.
Thanks to How Appealing for the link.


MAN BITES DOG: From today's Washington Post: "ACLU Admits Another Privacy Gaffe: Names, E-Mail Addresses of Hundreds Sent Over Internet."


"BOOKSELLER PURGES FILES TO AVOID SEARCHES": I'll be on KTSA-AM (550) in San Antonio at about 7:10 pm Central today talking about this:
Some booksellers are troubled by a post-Sept. 11 federal law that gives the government broad powers to seize the records of bookstores and libraries to find out what people have been reading.

Bear Pond Books in Montpelier will purge purchase records for customers if they ask, and it has already dumped the names of books bought by its readers' club.

"When the CIA comes and asks what you've read because they're suspicious of you, we can't tell them because we don't have it," store co-owner Michael Katzenberg said. "That's just a basic right, to be able to read what you want without fear that somebody is looking over your shoulder to see what you're reading."

The Patriot Act approved after the 2001 terrorist attacks allows government agents to seek court orders to seize records "for an investigation to protect against international terrorism or clandestine intelligence activities."

Such court orders cannot be challenged like a traditional subpoena. In fact, bookstores and libraries are barred from telling anyone if they get one. . . .
I'm not sure whether bookstores are right to act this way, but they're generally entitled to do so, unless they have specific reason to believe that the evidence they're destroying is relevant to a criminal investigation. Businesses aren't required to keep their records indefinitely, and they may destroy them partly to maintain their own privacy and their customers' privacy -- until, that is, they learn that the records may be evidence, and at that point (more or less) destroying the records may become obstruction of justice. That's the general rule, though there are naturally some gray areas.


FREE, UGLY SPEECH: I'll take up Mark Kleiman's challenge: assuming that the information in this article is correct and there's not some decisive piece of information it leaves out, the conviction of Sheikh Abdullah el-Faisal for "soliciting murder" is unjustified. (And I can say with more certainty that the other charge of which he was convicted, "inciting racial hatred," is a violation of freedom of speech on its face.) There might have been a viable treason prosecution to be had, since he was de facto recruiting for the Taliban and al-Qaeda from the pulpit. That recruiting might be punishable. But advocating, as a moral-cum-religious position, the murder of nonbelievers, ought to be protected speech, just like advocating, as a moral-cum-political position, the violent overthrow of one's government ought to be. I'm surprised Glenn didn't say so. This seems like a straightforward violation of the advocating-acting distinction-- no?


A BIT MORE ON KOZINSKI, THE CALIFORNIA A.G., AND THE MURDERER: California Attorney General Bill Lockyer has a Letter to the Editor in today's L.A. Times which says:
What is glossed over in your story, and what gives my office concern, is that Judge Kozinski was reported to have discussed, during a visit with one prisoner, other death row inmates who have cases pending before him. Such conduct is improper and does a disservice to our legal system, irrespective of whether Judge Kozinski has a tendency to uphold death sentences or to reverse them.
I think this isn't quite so. Kozinski did briefly ask Hunter about the personalities of a few other inmates whose cases Kozinski had heard in the past, and whom Hunter knew. But those decisions had been handed down by the time of the meeting.

     The Attorney General's letter to the Chief Judge of the Ninth Circuit (Mary Schroeder) does point out (p. 3, n.1) that some of those cases had been remanded to lower courts, and that these cases "will eventually return to [the same] panel," though it's more accurate to say that they might return to the panel; whether they do or don't depends on a bunch of things. The cases are not pending before Kozinski; the concern, rather, is that they may come back before him later.

     This is much like the Justices' position relative to cases such as Adarand Constructors v. Pena, Scheidler v. NOW (the second coming of which was decided this morning, 9 years after the case first came to the Supreme Court), and many others: They decide a case, remand it to a lower court, and may then end up considering the case again several years later. In the meantime, I suspect the judges occasionally do converse briefly with people about these cases, even though there's a possibility that they'll have to consider a certiorari petition or even a merits argument about the case later. They wouldn't do it if the case were actually pending before them at the time, but the practice, to my knowledge, is somewhat different if the decision is rendered but the case may come back later.

     But in any event, if the AG's office is concerned that the Judge has gotten some improper outside information on the cases -- which is far from clear on these facts -- there's a perfectly normal procedure for dealing with this: If the case does come before him, you move to recuse him on those grounds. You certainly don't demand that he be temporarily barred from all "capital cases coming out of the California district courts" (as the letter explicitly does) or perhaps be even permanently barred on the theory that he can't "remain neutral in any . . . California capital case" (as the letter strongly suggests). That sort of remedy, as my NRO piece argued, is to my knowledge unheard of, and completely unjustified.


PREDICTION IN RYAN V. TELEMARKETING ASSOCIATES: I have to send in my Supreme Court Forecasting Project for this case. Here's a brief excerpt from the case, summarizing the facts:
[T]he [Illinois] Attorney General, representing the people of this state, alleged that [defendant fundraisers] committed fraud and breached their fiduciary duty. The charged offenses were premised on the fact that defendants retained 85% of charitable funds collected on behalf of a charity, VietNow National Headquarters . . ., and, when soliciting, failed to inform donors that only 15% of their contribution would be distributed to the charity.
The Illinois Supreme Court held that such a fraud claim was inconsistent with the First Amendment; I predict that the Supreme Court will agree with the Illinois Supreme Court. Confidence: High. Don't ask me why -- it's a long story that relates to the U.S. Supreme Court's past charitable fundraising caselaw, and the Illinois Supreme Court's opinion does a good job of explaining this.

     I also predict that Chief Justice Rehnquist and Justice O'Connor will dissent -- I infer this from their past votes in similar cases. Confidence as to their dissenting: Low. Confidence that no others will dissent: Moderate.

     I should stress again that I was completely wrong in my prediction about Eldred v. Ashcroft. But I feel more confident about this case, and about the other case in which I've made a Supreme Court Forecasting Project prediction, Virginia v. Black (the cross-burning case).


NATURAL-BORN: Jefferson Morley in Slate calls for a constitutional amendment that would allow naturalized citizens to become President. He's right, of course. But I'm surprised to see that the origin of the clause is treated as such a mystery; surely Jack Rakove knowsn and told Morley, more than is quoted. At a time when the tacit equation between the Presidency and monarchs was quite strong in people's minds, they thought about all of the cases of dynastic politics and marriages that had led to kings and queens from lands other than the lands they ruled, kings and queens who sometimes genuinely couldn't (and more often were rumored not to be able to) speak the language of their subjects. The Framers seem to have thought that, after Washington, Electoral College majorities would be hard to come by because of regional loyalties, and so expected the Presidency to be routinely decided by the House. Whigs though they were, they didn't want to see an American equivalent of Parliament's handing the throne over to William of Orange.


BLOGGER BLAHS: So our e-mail distribution list is acting up -- subscribers are still getting messages, but we're getting a ridiculous number of errors every time something gets posted -- and now the Blogger RSS feed isn't updating. Yeah, yeah, yeah, switch somewhere else, people will say, but that's work, and it's less work to kvetch. In the meantime, David Janes's RSS feed (also available via the second RSS button on the upper left of this page) seems to be going very well. Three cheers for Janes, by the way.


10TH ANNIVERSARY OF THE FIRST WORLD TRADE CENTER BOMBING: Duncan Frissell (The Technoptimist) points this out, and has some notes. As he wrote in his e-mail to me, "Too bad we weren't paying attention."


THE FUNDAMENTAL INTERCONNECTEDNESS OF ALL THINGS: Robert Alt on No Left Turns points out an interesting factoid: Today's Scheidler v. NOW came before the Court once before, in 1994; that time, the Justice Department's brief, which sided with NOW, was written by . . . Miguel Estrada. Doesn't tell us much about Estrada's views, since Estrada is a lawyer and lawyers generally file briefs to represent their clients' views, not their own. But it does remind us that the contrary position -- say, Estrada or Jeffrey Sutton filing a brief in support of state sovereign immunity or some other conservative cause -- generally doesn't bear much on their views, either.


ELECTRONIC SUBMISSIONS TO LAW REVIEWS? A couple of weeks ago, I posted this question to law review editors:
Does your journal accept electronic submissions -- and, if it does, are there any glitches or serious delays in the process that would lead you to recommend that people not submit electronically? . . . I'm trying to figure out whether to recommend, in my forthcoming Academic Legal Writing book, that students send their manuscripts by postal mail (my current suggestion), or whether I should encourage students to save time, money, and effort by submit the manuscripts by e-mail.
I collect below some of the reactions that I got; they're obviously not representative, but I think they illustrate various reactions that some journals are likely to have. (Click here, by the way, for a list of journals that say they accept electronic submissions.)

     More broadly, I think these reactions show how institutions react to the costs and benefits of technological advances. I do not want to suggest that any of the reactions are right ot wrong, and I think it would be too facile to assume that, for instance, failing to adopt electronic submissions is irrational or pointlessly hidebound. I suspect that electronic submission is the way of the future (whether in a couple of years or more like 10 or 15) -- but in the course of getting to the future, we need to overcome certain real and understandable current obstacles, such as the ones these messages illustrate.

     1. Here's the first message I got, which describes the practice at a Top 50 primary journal:
[Our journal] does not accept electronic submissions for two reasons.

1.) The fear of mass emailing of articles to the journal. The current process of forcing people to actually mail out the article, and thus spend the money that is required to do that, supposedly tends to weed out articles.

2.) The current Executive Articles Editor said that he is scared of getting what would otherwise be publishable articles lost in an email box.

To tell the truth, it seems like it is just easier on the editors to keep requiring authors to submit hard copies of their articles because it involves less work in making sure they are accepted, acknowledged, printed, distributed to the correct editors, and read in time to determine whether we want to extend an offer of publication.
     2. One from a Top 20 primary journal:
We do not currently accept electronic submissions. However, even with that policy, I can tell you that many authors do submit articles to us by email, and although we look at them very skeptically if submitted only
through email, it is not a bad idea for an author to send both a hard copy and an email copy. It gives you two shots at getting our attention, and if the email is quickly deleted, you still have the hard copy (and the email should state, "I also sent a copy of the article to your postal address").

From a student's perspective -- since I'm about to send out my own seminar paper for publication, and I know the process from my journal's end -- I would strongly suggest sending hard copies to journals that don't explicitly encourage electronic submissions. As a student, you can't afford to be viewed "skeptically," as I said above.
     3. A secondary journal at a Top 50 school:
My journal . . . accepts submissions via e-mail. The feedback at editorial board meetings (primarily from the Articles Editor) has been enthusiastically positive. I haven't heard of any technical glitches, but I'm not up on all the details; it's not my area.
     4. Another top 50 primary journal:
Our web site does not mention e-submissions & I think they number less than 10 per year. . . .
s, but I agree with your current recommendation to submit via postal mail for a couple of reasons. First, our article selection process begins by coding submissions with a tracking number and entering relevant contact information into a database. There’s no reason why hard copies are inherently better than electronic submissions for these purposes, but it’s just not how our process functions at present. Second, and more importantly, it would be quite a pain to have to print out copies of all electronic submissions. At our journal, we rely on hard copies for the first few stages of the selection process. It is only after these initial stages that an electronic submission becomes necessary, and by that point it’s usually no problem to contact the author and ask him or her to email an electronic copy.
     6. And finally, one more Top 20 primary journal:
[Our journal] had an experimental project of accepting electronic submissions last summer. We even distributed and discussed all the articles via electronic mailing list, which allowed us to o fer very quick turnaround in the slow months despite the editors being scattered around the country and the world. The program resulted in a number of published articles, saved several small forest and was certainly a success.

However, insufficiently so as to be made permanent. The hide-bound forces of reaction in legal publishing are an astonishing thing to behold. Eventually, this will clearly be the way to go. But for now I'd recommend continuing paper submissions, possibly accompanied by e-mail submission. The cost to any legal scholar with a support staff and an administrative budget to handle mass paper submission is just too small compared to the significantly reduced coverage of electronic submission.
There it is -- it'll be interesting to see what a similar query would yield in, say, 3 years.


SCOOPS OR MALARKEY? What we really need is an empirical study of how often the stuff reported at turns out to be true -- stuff like today's two lead stories there, this one and this one, both about Iraq and both potentially important if accurate.

Tuesday, February 25, 2003


STUART TAYLOR DEFENDS TOTAL INFORMATION AWARENESS: I'm actually unsure where I stand on TIA, but Stuart Taylor's pieces are always worth reading; his latest is here.


NO ANGST, PLEASE: Innocents Abroad has a sharp retort to Joe Klein's Time column. An excerpt from Klein:
And this, I think, is at the heart of what is disturbing about Bush's faith in this moment of national crisis: it does not discomfort him enough; it does not impel him to have second thoughts, to explore other intellectual possibilities or question the possible consequences of his actions. I asked one of Bush's closest advisers last week if the President had struggled with his Iraq decision. "No," he said, peremptorily, then quickly amended, "He understands the enormity of it, he understands the nuances, but has there been hand-wringing or existential angst along the way? No." (This, in contrast to his torturous quasi-Solomonic decision on stem-cell research.)
An excerpt from the response from John Coumarianos:
[H]ow does Klein know what the president's deepest thoughts are? Does he fancy himself such a perceptive reader of character that he can discern such things without the benefit of closeness? Has the presidency become so rhetorical, not to say confessional, that we expect to know the depths of every executive's soul? And if the president is suffering over the decision, why should he show it? Isn't there something noble about hiding your pain, especially in the Age of Oprah?

What a relief, what a salve for my own anxiety, to have a president again who doesn't suffer from existential angst or malaise, or who doesn't show it if he does.
Here's my two cents' worth: Near the very beginning of the piece, Klein writes:
There is a tendency to ricochet between piety and puerility, an odd juxtaposition that raises a discomforting theological question: What is it about the President's religious faith that makes him seem so jaunty as he faces the most fateful decision a President can make?

Last week Bush careened from restrained but persistent evangelism before a convention of religious broadcasters to casual trash-talking with sailors in Jacksonville, Fla. "The terrorists brought this war to us -- and now we're takin' it back to them," he told the troops, leaning an elbow on the lectern, squinting crosswise at the camera, tossing a breathy Clint Eastwood chuckle. "We're on their trail, we're smokin' them out, we've got 'em on the run." One imagined the French Foreign Minister watching this lunch-hour martial spectacle and choking on his baguette.
Look, even if a President is full of "intellectual anguish" (Klein's seeming suggestion) on the inside, do we really want him telling it to sailors? Is that the way leaders in war-time are supposed to inspire the troops? I'd hope the French Foreign Minister would know enough to leave the angst at home on such an occasion.


DUCK AND COVER: In response to my "duck and cover" post from last week, reader Richard Cleveland passed along the following:
[T]he Duck and Cover should work for reasons quickly re-learned at the Embassy bombing in Africa. If children learn to react to the flash by getting quickly under their desks, than that is what most will do when the time comes. Pure training-produces-instinct, something we do in the Army all the time. A lot of the deaths from the bombs at the embassies in Africa were because a slight commotion just prior to the bombs exploding got a lot of folks up out of their desks and to the windows. These people were killed or injured due to flying glass from the pressure wave. If a child learns to immediately get under their desks at the first sign of a nuclear explosion, the flash of light, they will be somewhat protected from the natural instinct to go to the windows to see what is going on (something that is likely to kill 94% of the teachers, though). Repetitive, simple, easy to remember when all hell breaks loose . . . it was a great example of what a government can do to help thousands without spending millions.
This sounds quite right to me, and it reinforces the basic point: Some techniques may be highly unglamorous, and may be useless in the most strking situations, or even in most situations -- but they may still help in some situations, and that's better than nothing. It's a mistake to oversell such proposals, but it's often a mistake to dismiss them.


L.A. CITY COUNCIL OPPOSES WAR AFTER ALL: The L.A. City Council finally did decide -- despite some promising initial signals to the contrary -- to oppose the war. (This happened last Friday, I believe.) The only silver lining is that my own councilman and fellow UCLA Law School grad Jack Weiss voted against the resolution, as did Dennis Zine, the one Arab-American city councilman; two other council members did as well.


NOT THE BEST SLOGAN? A flyer for a law school program -- which may well be a great program on the merits -- trumpets, in large letters on a red background,
Summer in the Heart of Chicago.
Boy oh boy.

UPDATE: Chicago enthusiasts have responded in force, saying that Chicago is "beautiful" during the summer, though even they acknowledge that "[c]ertainly Chicago can have its spells of heat and humidity." Indeed. But here's a point of agreement: "I can assure you that the slogan 'Winter in the Heart of Chicago' would be much worse!" No argument there.


IRAQI FEDERALISM: For reasons that will become apparent tomorrow, I'm a little envious that James Robbins got this piece onto NRO today; but I'm happy to recommend it nevertheless.


NEW YORK TIMES PIECE CRITICIZING DEBORAH COOK, 6TH CIRCUIT COURT OF APPEALS NOMINEE: The piece is here, and lawprof Larry Solum's detailed response is here.


WHAT REALLY IS GOING ON: With respect to Phillippe's two questions about Senate confirmation of judicial nominees, I would answer both in the affirmative. It is Senators are entitled to base their votes on nominees on whatever bases they wish. Moreover, they are entitled to express the intensity of their preferences through use of a filibuster. As I view the debate, however, these are not the grounds upon which Miguel Estrada's backers are criticizing the Democrats. Rather, the claim is that the Democrats arguments and tactics are a) unprecedented, in that no appellate nominee has ever been filibustered in the Senate, and that no appellate nominee has been opposed on the grounds Democrats are willing to state publicly; and b) dishonest, in that the public explanations are implausible, if not clearly erroneous. There may be good arguments against confirming Estrada, but Senate Democrats have refused to make them. Senators may be entitled to act in this fashion -- but they are not entitled to be free of criticism for their actions.

My real fear in the Estrada debate is that the Senate has entered a vicious cycle of endless escalation in the battles over judicial nominations. Until the 1980s, fighting over appellate nominees was exceedingly rare. In 1987, the Democratic Senate began the "tradition" of delaying hearings and votes on nominees in the last two years of the term of a President from an opposing party in the hopes that the White House would switch hands. This was done again to President George H.W. Bush's nominees in 1991 and 1992. It is for this reason that John Roberts and Terrence Boyle are still only nominees, rather than judges (and why Lillian BeVier remained a law professor, rather than becoming "Her Honor").

When the Republicans retook the Senate in 1995, they responded in kind -- and then some. They dramatically slowed the rate of confirmations for Clinton's nominees in 1995-96 and again in 1999-2000 -- delaying, and in some cases denying, the confirmation of qualified nominees. Some of the claims of Republican obstructionism may be overstated, but obstructionism there was. Senate Democrats may have set the rules, but Senate Republicans showed themselves capable of playing the game.

The only sign of reversing course and returning to a more amicable judicial selection process was President George W. Bush's decision to renominate two of President Clinton's stalled nominees in May 2001 as a sign of good will. In the last three years, however, the Democrats upped the ante again. First, by delaying appellate nominees in the first two years of a President's term -- a move that had not been taken in the prior twenty years. Second, after losing control of the Senate, by threatening to filibuster appellate judicial nominees for the first time ever. Given past experience, I would expect Republicans to respond in kind when there next is a Democratic President, and the nation will be the worse off for it.


THE ESTRADA DEBATE: WHAT'S REALLY GOING ON? The odd thing about the debate over the Estrada nomination is that it's almost entirely dedicated to issues that aren't quite the point. He isn't being opposed because the White House refused to release memoranda he wrote. He is being opposed because the Democrats think he is too young, conservative, and politically dangerous to put on the bench. (If it weren't for that perception, they wouldn't bother demanding the memos.) The problem for the Democrats is that they can't establish the basis for their fears in publicly visible ways. Washington is a small town, and Miguel Estrada is not an obscure figure in its legal community. He has a reputation. It's not at all a bad reputation; indeed, for some purposes it's a great reputation. Part of it is that he's very smart and hard-working. But another part of the reputation is that he's intensely conservative, and this scares the heck out of Democrats. Add to this the Bush administration's decision -- unwise in retrospect, I think -- to leak that Estrada probably would be on the short list for the next Supreme Court nomination, and you can understand why the Democrats are reacting to Estrada as they are.

     Since for the most part Democrats have not found a way to effectively document this reputation on the record (there was just Paul Bender's gaffe mentioned in the article linked above, which wasn't part of Estrada's hearings), they have resorted to other explanations for their opposition. It's all about his refusal to answer questions, etc. Estrada's supporters naturally pounce on those explanations and try to tear them to shreds -- effectively, in my view, since many other nominees haven't answered such questions, either. But the real issues, it seems to me, are two: (a) Are Senators entitled to vote against a nominee because they have private reasons -- reasons not made evident in the confirmation hearings -- to worry that they will not like what he does? And (b) if the answer to that question is "yes," are they entitled to express their views through a filibuster?

     I regard the second question is the easier one, though for reasons having nothing to do with Estrada. The filibuster is a useful device. It provides a mechanism for recording the intensity of preferences, allowing a large but unusually committed minority in the Senate to prevent majority rule. If the Democrats not only don't want a nominee confirmed, but really, really don't want him, and there are enough of them to support a filibuster, I see no reason to begrudge them their right to go through with it. (But to ensure that the filibuster really is serving this purpose, they should be forced to go through with it for a good long time -- as they are.) Of course there are those who think that ideology, however established, is an illegitimate basis for voting against a nominee, but I don't subscribe to that view for reasons best recounted some other day.

     The first question is harder. There are other ways to explain the opposition to Estrada -- some of which I have offered in prior posts; they have to do with the Supreme Court -- but in the end they all come back to the Democrats' belief that he's just too far to the right. I think there is a lot to be said for the position that if you can't get people who know a nominee to publicly commit to such a view of him, you shouldn't be taking it into account in voting on his nomination. A nominee (Estrada or anyone else) should have a right to face his accusers. Statements behind the scenes are an unfair and unreliable basis for denying a nominee -- and the President -- a judgeship. Character assassination is a popular sport in Washington, and it should not be so easy for a nominee's enemies to bring him down through private gossip. Confirmation decisions should be based on the public record and nothing more.

     On the other hand, it's a reality of life in Washington as well as other communities that for professional reasons many people who might know something relevant about a nominee's ideological predilections might be unwilling to say so in a confirmation hearing but quite willing to talk behind the scenes. Their resulting anonymity is double-edged: as just suggested, it frees them to speak irresponsibly without fear of repercussions; but it also frees them to speak candidly without fear of repercussions. For all I know (i.e., not much), both have occurred here. But federal judgeships are massive responsibilities; if Senators firmly believe they have good reason to think a nominee wouldn't be appropriate, they shouldn't feel obliged to vote for him regardless of whether the reasons can be publicly documented. The right to face one's accusers has considerably stronger pull when we're talking about sending someone to prison than it does when we're talking about whether to confirm him to a lifetime seat on the federal bench.

     As I say, it's a hard problem. In any event, though, I think the dynamics just described help to explain this strange debate -- a debate that must be puzzling to many people, as Democrats are passionately opposed to a nominee for publicly-stated reasons that don't seem all that impressive.


HACKER ACQUITTED: Wes Holland here at the UCLA Law School IT department passed along this story:
Jurors needed only about 15 minutes to acquit a Houston man who was accused of hacking into the Harris County district clerk's wireless computer system in March.

One juror, Helen Smith, 62, said she and the other jurors found that Stefan Puffer indeed hacked into the system but they did not believe he caused any damage as the government had alleged.

"We didn't feel he intentionally wanted to do damage, but just to embarrass" the county, Smith said.

Puffer, 34, was charged in July on two counts of unauthorized access into a protected computer system and unauthorized access of a computer system used in justice administration. Prosecutors said the county spent more than $5,000 to clean up the system after the break-in.

"Throughout the trial we proved -- at least it was clear -- the county had their wireless butt out and they were trying to use Stefan as a scapegoat," said Ed Chernoff, Puffer's attorney. . . .

U.S. Attorney Michael Shelby . . . said while he respected the jury's verdict, he disagreed with their findings.

"The allegation is that this man intentionally invaded a cyberspace that did not belong to him that is essential to function of a government entity," Shelby said. "We should not allow that intrusion in our homes, and we can't allow it to systems so critical to (daily) operations."

At the start of the three-day trial in a Houston federal court, Berry said Puffer hacked into the system three times in March, but he was indicted for only one instance on March 8.

One breach occurred March 18, when Puffer showed clerk's office officials and a Houston Chronicle reporter how he was able to break into the system using his laptop, a computer program and a phone card.

Chernoff told jurors in his closing argument Thursday that the publicity from the Chronicle article embarrassed Harris County District Clerk Charles Bacarrisse. He said Bacarrisse pressured the U.S. attorney's office to charge Puffer so he could escape blame when he seeks re-election. . . .

Bacarrisse said he was indeed embarrassed by the breach, and he simply reported the incident to proper authorities.

"Yes, I was embarrassed by discovering in the early stages of testing a wireless system we were not using the highest available level of security," Bacarrisse said. "The next attempt at intrusion will encounter a far higher level of security." . . .


PAY TO PROTEST: Under a new law passed in Augusta, Georgia, groups must "provide an indemnification and 'hold harmless' agreement in favor of Augusta, Georgia and its elected officials ... in a form satisfactory to the attorney for Augusta, Georgia" in order to stage public protests. Hmmm. Could this have anything to do with the controversy over the Augusta National Golf Club's failure to admit any female members? This story suggests that might be a reasonable suspicion -- and that the law might well be unconstitutional (but I'll defer to Eugene on that question).


THE SAMI AL-ARIAN INDICTMENT is here. Al-Arian, you may recall, is the University of South Florida professor who was suspended several months ago by USF -- apparently because of his constitutionally protected speech -- and who is now under indictment for conspiring to raise funds for terrorist organizations. Thanks to Jerome Sternstein for the pointer.


KC JOHNSON GETS TENURE AT BROOKLYN COLLEGE: Those of you who had been following this story -- of a professor who was denied tenure on apparently spurious "uncollegiality" grounds -- might be interested in reading this N.Y. Post story:
The CUNY trustees yesterday granted tenure to a Brooklyn College history professor who ripped the school's post-9/11 forum for promoting hatred against America -- overruling the college's appointments panel, which sparked outrage by passing him over. . . .
Erin O'Connor has more. Thanks to Edward Barrera and Jerome Sternstein for the news.


FRENCH LIBERALISM: I think it's best to give Chris Bertram the last word for now; he's written a characteristically careful (and generous!) reply. (See this post and update, and attendant links, for the earlier part of this conversation.) And I'll resist the common blogging temptation to say "You get the last word, buthere'smyquickfinalriposte." The subject of French liberalism is enough on my mind that I'm sure I'll blog about it again in the future, but no more for now. I will, however, add a few links for those interested in the liberal turn (such as it is) in French thought: Lafayette's Children: The American Reception of French Liberalism, by Martin Jay; the volume New French Thought: Political Philosophy, co-edited by my colleague Mark Lilla; from the series of books that New French Thought inaugurated: Pierre Manent, An Intellectual History of Liberalism; and, for those at institutions that have the relevant subscriptions for online access, Manent's article in the latest Journal of Democracy, Modern Democracy as a System of Separations.


ESTRADA'S ALLEGED SILENCE: The rap against Miguel Estrada is that he has refused to answer questions about his judicial views. Senators Daschle and Leahy, in a recent letter to President Bush, charged that Estrada refused to answer "basic legal questions." As an example, the letter pointed to Estrada's alleged refusal to identify judges or justices whom Estrada would use as role models. Yet, as Byron York reported, Estrada did answer this question in response to written questions from Senator Durbin, naming Justices Powell and Kennedy, and Judge
Kearse (the latter two for which Estrada clerked). More significantly, neither Daschle nor Leahy ever submitted written questions to Estrada asking for further elaboration of his views. Such written requests are common after confirmation hearings, yet only two of the ten Democrats on the Senate Judiciary Committee at the time of Estrada's hearing ever submitted questions.

The reality is that Estrada has been no less forthcoming than prior judicial nominees to the D.C. Circuit, including those nominated by President Clinton. Writing in today's Washington Post, Benjamin Wittes makes this point and argues that nominees should not be expected to answer questions about specific cases. "Not knowing what sort of judge someone will be is frustrating," writes Wittes. "But that is the price of judicial independence."

UPDATE: NRO has posted White House counsel Albert Gonzales' response to Senator Schumer's comments on ABC's "This Week."

Monday, February 24, 2003


the outside of the public telephone booth," and had "overheard" the defendant's conversation; at trial, the government had used the defendant's end of the conversation against him to show that he had placed an illegal bet using the phone in the phone booth.

     Sounds pretty high-tech, right? The Court's opinion makes it sound like a sophisticated surveillance tool was used: maybe a wiretapping tool, or something even more advanced. But you get a very different view if you read the lower court opinion. The Ninth Circuit explained the facts in more detail:
In February of 1965 the appellant was seen placing calls from a bank of three public telephone booths during certain hours and on an almost daily basis. He was never observed in any other telephone booth. In the period of February 19 to February 25, 1965, at set hours, Special Agents of the Federal Bureau of Investigation placed microphones on the tops of two of the public telephone booths normally used by the appellant. The other phone was placed out of order by the telephone company. The microphones were attached to the outside of the telephone booths with tape. There was no physical penetration inside of the booths. The micr phones were activated only while appellant was approaching and actually in the booth. Wires led from microphones to a wire recorder on top of one of the booths. Thus the F.B.I. obtained a record of appellant's end of a series of telephone calls.
United States v. Katz, 369 F.2d 130, 131 (9th Cir. 1966).

     Assuming the more thorough factual description by the lower court is accurate, what I want to know is this: why didn't the Supreme Court give this version of the facts in its opinion? The lower court says the FBI stuck a microphone to the top of a phone booth; the Supreme Court writes that the FBI "attached an electronic listening and recording device" to the booth. Granted, a microphone is in fact an electronic listening and recording device. But why not just say it's a microphone?

     If this was a tactical decision, one reason may be that the longer and less clear phrase arguably gives the Court's opinion in Katz greater influence. If the opinion acknowledges that the facts involve a common microphone, then people might just think of Katz as "the microphone case." But a vague reference to some kind of "electronic listening and recording device" makes the opinion seem more important, and its holding more broad.

     Does this explain the Court's language? I have no idea, but it's interesting to ponder. (It's especially interesting because Professor Tribe was clerking for Justice Stewart at the time, and in a 1991 speech took some credit for the opinion and explained that he saw it as an opportunity to establish Fourth Amendment protections against "wiretapping and electronic eavesdropping.")


WILL COPYRIGHT INFRINGEMENT ONLINE LEAD TO BETTER MUSIC?: I have a new theory for why unauthorized downloading of copyrighted music will actually lead to higher quality and more sophisticated music in the future. It's an idea I got from this story about Norah Jones in today's N.Y. Times. The story explains that Jones's first album generated lots of profit for an interesting reason:
Arif Mardin, the album's producer, said that the album had sold well in part because it appealed to an older audience. "They don't know how to download, so they go to the store and buy the record," he said.
So here's why unauthorized downloading will lead to better music: older audiences don't know how to download, so record labels will start to put their money into pleasing older listeners who might actually buy music, and who also tend to have more sophisticated tastes. Ergo, more sophisticated artists will be signed to the major record labels, and we listeners will get more sophisticated music to enjoy.

     I wonder why Napster didn't think of that?


HEARD FROM SASHA, ON THE PHONE JUST NOW: "Cats -- that's the famous musical about wiretapping in phone booths."

     Either you'll get it or you won't; it's not worth explaining. Sasha tells me he might have gotten this from How Appealing, though I'm not going to do much research on that.

UPDATE: The gag likely came from Orin Kerr's post.

FURTHER UPDATE: The joke gets a rave review from the OxBloggers. "One of the funniest jokes of all time," or words to that effect.


The sponsor of the Estrada memorial in the Washington State House of Representatives is Mary Skinner, Republican from Yakima. Mary is not one of the more partisan members of the House. She is regarded very highly and is an effective and generally quiet behind the scenes worker.

Mary and her husband, Dr. Hal Skinner, were once my neighbors in Olympia. She is a friend of mine. While Mary is a leader in the State, she is also recognized for her involvement as a Hispanic in matters of particular interest to that community. She and Hal travel south frequently on charitable trips.

For Mary Skinner to introduce such a resolution, the treatment of Estrada must have really rankled.


MORE ON SAMI AL-ARIAN, the USF professor who is charged with aiding terrorists, from Daniel Pipes, New York Post, Feb. 4, 2002. I don't know how accurate this account is, but it seemed worth passing along:
Most coverage of [Al-Arian's] problems portrays the computer scientist as the victim of a political witch-hunt -- and so misses the real story, which is about his links to terrorism.

A New York Times editorial criticizing USF for planning to fire Al-Arian gives the impression that the issue is a long-ago speech calling for "victory to Islam" and "death to Israel."'s account suggests the Palestinian prof might be dismissed for merely failing to inform viewers of a television show that his political views "did not necessarily reflect" those of USF.

The university administration has stumbled over itself, raising inconsistent grounds for letting go of Al-Arian. One moment, it says his activities "outside the scope of his employment . . . had an adverse impact on the legitimate interests of the University." Next, USF announces it "cannot guarantee the safety of Dr. Al-Arian and students, faculty and staff around him" should he remain on campus. It also accuses him of trespassing on university property after having been banned from it. Oh, and it complains that his case has cost the university lots of money.

None of these poor excuses is the real grounds for sacking Al-Arian. . . . Steven Emerson devotes a chapter of his hard-hitting, brand-new book "American Jihad: The Terrorists Living among Us" (Free Press) to the USF saga.

There and in other writings, Emerson reveals the good professor's activities:

Al-Arian founded two organizations, the Islamic Committee for Palestine (ICP) and the World and Islam Studies Enterprise (WISE), which -- according to an Immigration and Naturalization Service affidavit -- were used as fronts to enable terrorists to enter the United States.

At ICP conferences, speakers would "condone violent acts against Israel, and Israelis, and Jews and Western targets," then go on to solicit funds to engage in such acts, again according to the INS.

Al-Arian himself wrote letters soliciting funds for these causes, says the FBI.

Al-Arian used his USF office to do ICP business on at least one occasion.

The ICP was known as the American arm of Islamic Jihad, a terrorist organization with a record of killing Americans, such as 20-year-old Alisa Flatow. . . .

Al-Arian served as the visa sponsor for Ramadan Abdullah Shallah to enter the United States, invited him to Tampa, hired him to run WISE, placed him on the ICP board, and encouraged USF to appoint him a professor of Middle East Studies. Later, Shallah left Tampa for another job: He's now secretary-general of Islamic Jihad.

Emerson reports that the FBI, while searching the WISE offices, "uncovered one of the largest collections of terrorist fund-raising and propaganda material ever seized in the United States." It also discovered many connections between WISE and international terrorists.

Al-Arian, in short, has been an integral part of the terror network that Americans now find themselves at war with. His case is not about academic freedom of speech but about a professor being held accountable for being part of a terrorist apparatus that has killed Americans. . . .
Thanks to reader David Gerstman for the pointer. If people know of contrary information, I'll certainly consider blogging that as well.


SILLY BUT FUN FLASH ANIMATION here. Thanks to lawprof Myron Moskowitz for passing it along.


CONGRATULATIONS!: Chris Bertram's book is done. He's inspired me to disconnect for the rest of the day and go do some real work on mine.


"THEIR DECISION": Ted Rall said this most recently, but I've often heard others say it as well:
Invading a sovereign state to impose "regime change" is a bad idea. If people don't like their government, whether or not to launch a revolution should be their decision.
"Their decision." Which part of that don't I understand? Well, "their" and "decision."

     The phrase "it's their decision" sounds appealing, because it usually means something like "it's their voluntary decision." Yes, I know, nothing in the world is truly voluntary, there's always social, economic, political, etc. pressure, yada yada yada. That's all well and good, but that a concept (voluntariness) admits of many shades of grey doesn't mean there's no black and white. "Give me your money or I'll shoot you -- it's your decision," or "Comply with my rule, or I'll rape your daughter and then kill you -- it's your decision," is a parody of the conventional meaning of the phrase "your decision," not a normal use of it. "If people don't like Chirac, whether or not to vote him out of office should be their decision" makes sense. "If people don't like [Hussein / Genghis Khan / Stalin], whether or not to launch a revolution should be their decision" is nonsense.

     Incidentally, this argument and the argument that "we have no business meddling in other nations' internal affairs" reminds me of an older view about child abuse and wife-beating: "It's none of my business, it should be kept in the family." Never mind that one person in the family might be brutalizing the others, and forcing what consent he is getting -- "it's their decision," which means it's the brute's decision. At least women often could flee their abuser (though they shouldn't have to); young children couldn't. Did we say "Invading a family to impose society's view of right and wrong is a bad idea. If kids don't like being molested, whether or not to stab their father to prevent it should be their decision"? Actually, for a while some people did, more or less, at least as to the first half of the quote, and at least as to nonsexual abuse. What do we now think of people who said that?

     Naturally, there are often pragmatic reasons for avoiding armed regime change in other countries; and if change can come within, it will probably be more effective in the long-term than when it's imposed from outside. (And, of course, all this sets aside the question of what to do when a country, democratic or otherwise, becomes a serious threat to the lives and liberties of those in other countries.) I'm surely not saying that overthrowing an evil regime is always morally necessary, or even morally justifiable; sometimes the moral and practical cost may exceed the benefit. But it's wrong to say that this question can be reduced to "it's their decision" -- an approach that is sound in a democracy, and laughable in a thugocracy.


FAMFIC CON'T: Boy, did this post elicit a lot of e-mail, and particularly this line:
I've been thinking about it because I'm, somewhat joylessly, working my way through Dune: House Corrino, by Brian Herbert and Kevin Anderson, the final book in Herbert and Anderson's Dune: House trilogy...
Not one of my correspondents had any more enthusiasm for the trilogy than I do... and several warned me against even starting the most recent Dune doorstopper, The Butlerian Jihad. I had been sorta hopeful that Jihad (I almost went to initials, but then thought better of it) would be better, since it wouldn't be dealing with the same characters as the original Dune books (it's set 10,000 years before them; the trilogy precedes Dune by 15-40 years). Part of what's so tiresome in the trilogy is the lack of suspense-- we already know how things turn out for most of the major characters. And when Herbert and Anderson do surprise the reader, it's often with something that feels untrue to the characters and story of Dune-- surprise for the sake of surprise. So I'd thought that the clean slate of the disatant past might be an improvement. My correspondents say not.

One of my college housemates once asked me why all my reviews and ratings on Amazon were so positive. I replied that, for the books I read as an academic, it's not particularly smart to post bad reviews on Amazon (if I have something usefully critical to say I'll put it in an academic review; if I'm just cranky I ought to keep it to myself); and that for pleasure reading, if I didn't like I book I wouldn't finish reading it, so I wouldn't feel justified in publicly panning it. That was before the genre-series bug bit me. Now certain series of novels-- like a comic book series or a television series-- can keep me hooked based on my interest in the plot and characters as they were developed much earlier. (Millions of my fellow Wheel of Time readers know what I'm talking about.) It's not even always a matter of hoping things get better again; sometimes it can take a book or two before I even realize things have gone downhill, because I have the habit of enjoying the books. So now I find myself in the odd position of having a pile of unpleasurable pleasure reading.

So here's my public resolution: After I'm done with Corrino, I'm done with the Dune books-- until and unless Herbert and Anderson come through with their promised conclusion, the sequel to Chapterhouse. (You've got to find out how things end, after all.) No more backstory novels. I've long since kicked the habit of bad Star Trek and Star Wars novels, a habit acquired during long backpacking trips when good English-language bookstores were hard to come by. I can kick this one, too. My next genre novel will be Diamond Age, which Mark Kleiman thinks is partly-inspired by the best book written by one of my favorite political theorists, Judith Shklar.


"HEROES OR DUPES"? An excellent post on Tapped, The American Prospect's blog:
HEROES OR DUPES? That's the question Salon asks of the peace activists travelling to Iraq to act as "human shields" in case of a U.S. war against Iraq. The picture on Salon's front page, of a white-sashed young woman dancing in the streets with what are no doubt a bevy of fine young men from the Iraqi secret police, will annoy pro-war folks -- and, Tapped would say, rightly so. They are dupes. Whatever you think of the war, these people are being used:
Shortly before the first Gulf War, Saddam's regime kidnapped hundreds of foreigners and forcibly used them as human shields around factories and military installations, finally releasing them after four months under intense international pressure. Though the voluntary human shields say they're only going to protect civilian neighborhoods and infrastructure, an Iraqi ambassador has said they'll be put at "vital and strategic installations," just like their hostage predecessors.
If you're opposed to war at any cost, risking your life to protest it has a certain nobility and purity to it. But by our lights, a line is crossed when citizens go from engaging in the political process to prevent a decision to go to war to actively impeding prosecution of the war once that decision has been made. Allowing yourself to be used as a human shield can only serve Iraq's military forces and endanger American soldiers (who may be forced to put themselves at greater risk to fulfill a given mission without killing a shield).

Take to the streets all you want -- but not in Baghdad.
Absolutely correct, and I'm glad to see that even many on the Left (such as Tapped) are recognizing this.


MIGUEL ESTRADA IN THE OTHER WASHINGTON: Apparently, this morning the Washington State House of Representatives will consider a motion that the following Memorial on the Estrada nomination be voted on. The House is controlled by Democrats, and it seems like that the motion will be rejected, but here it is, for whatever it's worth, together with a copy of the backer's floor speech. I express no opinion as to whether state legislatures ought to do this sort of thing in this sort of case.

HOUSE JOINT MEMORIAL 4020 _____________________________________________

State of Washington 58th Legislature 2003 Regular Session

By Representatives Skinner, Ericksen, Hankins, Mastin, Sehlin, Bush, Mielke, Ahern, Schoesler, Tom, McDonald, McMahan, Orcutt, Newhouse, Talcott, Roach, Condotta, Delvin, Holmquist, Pflug, Kristiansen, Shabro, Bailey, Boldt, Sump, Nixon, Cox, Anderson, Schindler, Carrell, Pearson, DeBolt, Alexander, Priest, Woods, Crouse, Chandler, Hinkle, McMorris, Benson and Buck

Read first time . Referred to .

Urging confirmation of Miguel Estrada.

We, your Memorialists, the Senate and House of Representatives of the State of Washington, in legislative session assembled, respectfully represent and petition as follows:
WHEREAS, Miguel Estrada has been nominated by President George W. Bush to serve on the United States Circuit Court of Appeals for the District of Columbia; and
WHEREAS, Miguel Estrada was unanimously rated "well qualified" by the American Bar Association, the bar's highest rating in evaluating judicial candidates; and
WHEREAS, Miguel Estrada would be the first Hispanic judge to sit on the United States Court of Appeals for the District of Columbia Circuit; and
WHEREAS, Miguel Estrada's nomination has been supported in bipartisan fashion by Ron Klain, adviser to former Vice President Gore and Seth Waxman, former Solicitor General under President Bill Clinton; and
WHEREAS, Miguel Estrada received the highest possible rating of "outstanding" in every possible category on his performance reviews during his service in the Office of the Solicitor General; and
WHEREAS, Miguel Estrada has been nominated to a circuit court where only two-thirds of the existing seats are currently filled;
NOW, THEREFORE, Your Memorialists respectfully pray that the United States Senate confirm Miguel Estrada to serve as a judge on the United States Court of Appeals for the District of Columbia.
BE IT RESOLVED, That copies of this Memorial be immediately transmitted to the Honorable George W. Bush, President of the United States, the President of the United States Senate, the Speaker of the House of Representatives, and each member of Congress from the State of Washington.
Remarks of Washington State Representative Mary Skinner:
There is a judicial crisis in Washington, D.C.

This body must act now to urge our fellow legislators in the United States Senate to alleviate this crisis.

There is a crisis because the United States Court of Appeals for the District of Columbia has been limping along for several years with only two-thirds of the existing seats filled.

There is a crisis because an outstanding nominee to fill one of the vacant seats, a nominee unanimously rated "well qualified" by the American Bar Association, has been languishing for over a year in Senate confirmation limbo. This despite clearly having the votes needed to be confirmed if given an up-or-down vote on the floor of the Senate.

There is a crisis because this nomination is currently being filibustered by a partisan minority in the United States Senate despite having graduated magna cum laude from Harvard Law School, having argued fifteen cases in front of the US Supreme Court, and having worked in the Justice Department, where he received the highest possible rating of "outstanding" in every possible category on his performance reviews.

There is a crisis because those filibustering have in the past opposed the tactics they now pursue. If I may read, Mr Speaker, a quote from one of the Senators currently filibustering the nomination:

"I have stated over and over again ... that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators."

There is a crisis because this Honduran immigrant would also be the first Hispanic judge to sit on the D.C. Circuit, expanding the diversity of a court often referred to as the "second most powerful court in the land."

House Joint Memorial 4020 urges the United States Senate to confirm President George W. Bush's nominee to serve on the United States Court or Appeals for the District of Columbia, Miguel Estrada. The nomination will be the first item on the United States Senate calendar this morning after the Senate returns from its President's day recess.

I hope you will join me in bringing this joint memorial to the floor to urge the United States Senate to confirm Miguel Estrada to the DC Circuit as soon as possible. Thank you.
UPDATE: See here for more.


THE FUTURE OF RESTRICTING CERTAIN ONLINE TRANSACTIONS? Visa is apparently taking substantial steps to prevent its credit cards from being used buy sellers of child porn:
Over the past year, Visa has set up a system to identify purveyors who use Visa to sell illegal pornography. This means the card issuer is reporting sites with illegal photos and videos to the global police forces responsible for enforcing child-porn laws.

Visa is also requiring the 7,000 U.S. financial institutions that are members of the Visa association to register "high-risk merchants" who process adult content and use the Visa card. If the institutions don't comply, they risk losing their Visa relationship -- a threat already facing a Russian bank.

After searching more than 1 million Web pages a day for the past year, Visa estimates that 80 percent of the 400 Web sites it has identified as child porn have either been shut down by law enforcement or have had their Visa privileges terminated. In fact, the company says pedophiles in chat rooms are complaining that it is increasingly difficult to find Web sites oriented toward them.
Now Visa's conduct, if it is properly implemented, is praiseworthy; and even if it's badly implemented (for instance, if it interferes with a lot of transactions that have nothing to do with child porn), it's well within Visa's legal rights (at least unless it breaches some existing contracts, which I doubt). But this should remind us that (1) the same thing could also be done as to gambling sites, sites that contain copyright infringement (or allegedly contain copyright infringement), sites that contain material that other countries prohibit, such as allegedly bigoted advocacy, Nazi memorabilia, and so on, and (2) the same thing could also be done through government compulsion rather than (apparently) voluntarily.

     Imagine that the government concludes that the best way to stop offshore for-profit copyright infringing sites is to require that Visa, Mastercard, and all other financial services that do any business in the U.S. stop doing any transactions with financial institutions that deal with such sites. Sure, the sites can move around, but the government could maintain a frequently updated list of prohibited companies (it could be updated daily, or even in real-time) that all credit card companies and, via the pressure of the credit card companies, all banks that do business with the credit card companies may not service. The French government can do the same for sites that sell Nazi memorabilia; the Singaporean government can do the same for sites that sell material that is contrary to Singapore's policies; and so on. This could be pretty effective -- though not perfectly so -- at blocking access to for-pay material, at least given the currently existing financial transaction system.

     Now perhaps this result might be good, or at least on balance do more harm than good. Much depends how happy you are about the substantive laws that would be enforced by these policies -- policies that would forcibly enlist financial providers into the law enforcement scheme. But this also poses some potential due process and First Amendment problems: Would a hearing, for instance, be required before a site is put on the prohibited list? Would it require a full-dress trial, with a decision on the merits, in order to prevent prior restraint problems? Private companies are free to implement policies that end up inadvertently blocking even perfectly legal material; but is it permissible for the government to force companies to implement such policies? These are tough questions, and my guess is that they're going to arise more and more in the future, as the voluntary interference with child porn is replaced by mandatory interference with a considerably broader range of transactions.


WEEKDAY UNIQUE VISITOR COUNTS: So I went over the last 6 months' worth of visitor counts in BraveNet, excluded weekends and holiday periods (including a more or less arbitrarily defined couple of weeks around Christmas and New Year's), and adjusted for a few weeks in late October when for some reason all the counts were pretty much double what I suspect they really were; and I then looked at the median daily unique visitor counts (whatever those are) within each month, and rounded them to the nearest hundred. A highly imprecise process, based on highly imprecise raw data, but there it is. The results:
September 20023500
October 20024800
November 20024900
December 20024600
January 20034900
February 2003 (so far)5600
Let's hope that the February totals are a permanent increase, not just a blip from the 4800-4900 zone.




PATRIOTISM: "Patriotism means being loyal to your country all the time and to its government when it deserves it." Ascribed to Mark Twain, though I have no reason to trust the claim; I'm not sure of the true source, but it's a good line whoever said it.

     Thanks to Phil Proctor for passing this along.


NICE CLICKWRAP LICENSE! Check out the pop-up license here.


LA FRANCE: Richard Vinen says, apropos of Jean-Franois Revel 's explanation of French anti-Americanism in terms of antiliberalism:
Furthermore, Revel's assertion that the French are hostile to liberalism is no longer true-and had probably ceased to be true even in the early 1970s, when he first made this assertion. Support for the French Communist Party has sharply declined in recent years. Liberalism, which in the French context means putting individual rights above collective ones, is highly fashionable among the intelligentsia, and often goes with an admiration for America-- not for nothing has Alexis de Tocqueville become one of the most widely cited political philosophers in France.

Indeed, French liberals often appear to be more American than Americans themselves, in that they defend American traditions against what they see as the fads of multiculturalism. Franois Furet, an ex-communist historian who spent much of his later career teaching at the University of Chicago, became fascinated by American law and the US constitution; Mona Ozouf, another ex-communist intellectual, published a book about Henry James (entitled ''La Muse democratique''), in 1998.
Now I admire Furet tremendously; he's been a major influence on me. But surely it is telling that he came here, to the U.S. and the University of Chicago, for so long. There is a distinguished history of French liberals and liberalism: Montesquieu, Voltaire, Constant, de Stael, Lafayette, Tracy, Tocqueville, among many others. (I'm writing a book that is, in large part, about 18th and 19th century French liberalism.) And, yes, Furet and Raymond Aron have had some impact on French intellectual life; French theorists are now more aware of Tocqueville and Constant than they were a generation or two ago. Pierre Manent, for example, is a first-rate liberal theorist. So is Tzvetan Todorov, a Romanian [CORRECTION: Bulgarian-- thanks to Christian Suciu for the catch] immigrant to France. (The Cold War exiles from Eastern Europe made a crucial contribution to keeping liberalism a live presence in French letters.) But Tocqueville and Constant (at least Constant as a political philosopher) remain less known in the French academy than they are in the Anglophone; Rousseau figures far more prominently than either; and Foucault's and Derrida's influence surely remains more widespread than Furet's and Aron's. (That is not to say that Foucault's and Derrida's influence is nearly as widespread, in contemporary French thought, as American conservatives imagine.)

And liberalism remains a vanishingly trivial presence in French politics. The French republican tradition leaves the state hostile to religion and religious freedom in a way that is deeply alien to liberalism. The major blocs in French politics each valorizes a collectivity: the nation, the class, the race. "Putting individual rights above collective ones" is on the agenda only as a way to bash the religious and associational freedom of disfavored groups. The liberal in last year's presidential race, Alain Madelin, came in behind not only Le Pen and the official Communist but also a Le Pen splinter candidate and three different Trotskyites. (This is from memory; there may have been only two, but I think it was three.) Liberalism continues to be a dirty word more often than not, one associated with foreign Anglo-Saxonism.

I spend a great deal of my time in the company of Montesquieu, Tocqueville, Constant, and the rest. I'm deeply attached to French liberalism. But I think Revel's claim is much more accurate than Vinen's, today.

Vinen's article is one of three about France and Franco-American relations on this Sunday's Boston Globe Ideas page.

UPDATE: Chris Bertram dissents. I reply: a) The PS liberalized to some degree when it was last in power-- but never any more than it had to, because of brute economic and fiscal realities. And they always denied that they were doing it. No prominent PS figure has publicly embraced anything like New Laborism as a matter of principle. They remain principled social democrats who have made some unwilling accommodation to market forces. b) If Rawls and Dworkin are to be the measure, then we need to look for a commitment to full liberal freedom of religion, freedom of speech, and freedom of association, which are emphatically not on the French political agenda. (Remember l'affaire foulard, France's particularly egrgeious hate-speech and group-libel laws, the Toubon language laws.) c) If the protection of the state from capture by sectional interests is to be the measure (which would want to be very careful about accepting as a standard-- a moderate commitment to this is part of liberalism, but unbridled autonomy for the state is not), then surely one would want to see the supposed liberal PS figures standing up to farmers. d) The Vinen article to which I was responding claimed that Tocqueville-Furet style liberalism was alive and well in France; if Durkheimian liberalism is really liberalism and it's really alive and well, that doesn't mean that Vinen was right.

[The disagreement between Chris and me isn't, I suspect, primarily an empirical disagreement about French politics, though it is partly that. In an e-mail to me he referred to an article about the structure and content of liberalism that I profoundly disagree with; indeed the book I'm working on, mentioned earlier in this post, is in part an attempt to refute the narrow and, I think, quite strange understanding of liberalism in that article. For a preview, look at the Social Philosophy and Policy article mentioned in this post. I think that France, like Turkey, is a republican democracy rather than a liberal democracy, and that the French political class is deeply committed to the illiberal aspects of that republicanism.]

See also this Matthew Yglesias post and the comments, including comments from Chris and from Chris Lawrence. The comments section on Matt's blog is becoming quite the fashionable place to hang out these days.

Sunday, February 23, 2003


WEEKEND ROUNDUP: Kieran Healey brags about his spiffy new tech stuff and mocks us Bloggering Luddites. (Kieran's relentless prosletyzing recently converted Chris Bertram to LaTeX; he's determined to teach us all to value good technology over our laziness and inertia. In both cases I believe him about the superiority of his chosen tech... but there's path-dependence, don'cha know.) (NB to my libertarian bretheren: please don't bombard me with e-mails about the QWERTY myth. I know. There's more to path-dependence than that.)

Matthew Yglesias writes a post about Iraq that's really about John Rawls and
Political Liberalism
. This becomes even more clear in the comments:
What I'm trying to ask is this. If we had some guy running around trying to explain to the citizens why the basic structure of society was just and one day he said, "well you see it promotes human autonomy," and the next day he said "it's based on traditional Protestant values of free faith" and then the next day he said, "given the constraints of the real world, it's the best possible approximation of utility-maximization" and then the next day he said "this is a very good realization of the Catholic Church's post-Vatican II teachings," mightn't people begin to suspect that the guy in question was running some sort of scam? I mean, why can't he make up his mind? Clearly, there must be an ulterior motive....
To which I'll just say this. The picture gets a great deal of its implausibility from the fact that it's one guy running around offering all of these justifications-cum-rationalizations. Clearly in that case, most or all of them would be offered in bad faith. But there's no reason to expect that. If the same institutions turn out to be justifiable from within Kantianism, utilitarianism, Catholicism, and so on, then we expect adherents of each of those to address the relevant justifications to each other. Rawls maintained that the basic structure of society had to be just according to a freestanding political argument, not dependent on any one of these comprehensive accounts or on the contingent fact that they generate an overlapping consensus. (Whether and in what way this fact is contingent, and how much it would matter if the imagined consensus doesn't exist, are questions that frustrate me every time I pick up PL.) We might expect one person to both affirm the political justification in public and to affirm the comprehensive justification among co-religionists (or co-Kantians or...) But we probably wouldn't expect one person to offer multiple comprehensive defenses.

And with regard to at least some issues, surely this is what our politics already looks like. Freedom of speech and freedom of religion have many, many proffered justifications; lots of these draw on incompatible moral foundations. It does turn out that, say, "freedom of speech" isn't quite the same principle when it's defended in Millian truth-discovery terms as it is when it's defended in terms of romantic self-expression as it is when it's defended in terms of natural libertarian rights; and so the overlapping consensus isn't perfect, and jurisprudence gets messy. But we don't assume that an argument for core freedom of speech are offered in bad faith just because we heard a foundationally different argument yesterday.

And you really must read this book review from the Post.


IN MEMORIAM: Mark Kleiman has some very moving and thoughtful words about his father, who died Friday night.


MARBURY DATE: Bernard Hibbits and Dennis Callahan write that Marbury's 200th anniversary is actually Feb. 24, not Feb. 23, as I earlier posted; and the Supreme Court's files support the Feb. 24 view.

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