Saturday, October 29, 2005

Great Debate on Tort Protection for Gun Manufacturers:

The Legal Talk Network hosted a debate on the Protection of Lawful Commerce in Firearms Act. Participants were Master Conspirator Eugene Volokh, Josh Horowitz from the Educational Fund to Stop Gun Violence, and me. Josh and I spoke the next day, and agreed that the debate was informative and cordial--far superior to the angry exchange of talking points that sometimes characterizes debates on gun control. You can listen to the debate in WMF, or download it in MP3.

Alito: You Can[!!!] Say That!

Via the Supreme Court Nomination Blog, I've come across Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): "There is no categorical 'harassment exception' to the First Amendment's free speech clause.... When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications."

Good to know he takes at least a somewhat Volokhian (and Bernsteinian) view of such issues.

Second Amendment Tea Leaves for Corrigan, Sykes, Luttig and Alito:

In Re Four Possible Supreme Court Nominees. In the case of Love v. Pepersack, Judge Luttig concurred in an opinion rejecting a section 1983 claim for an erroneous denial of a handgun license by the state of Maryland. Judge Luttig's concurrence stated, in its entirity: "I concur only in the judgment reached by the majority, and I do so only because Gardner v. Baltimore Mayor and City Council, 969 F.2d 63 (4th Cir. 1992), is the law of the circuit." The Gardner case involved a narrow interpretation of substantive due process.

In United States v. Rybar, Judge Alito wrote a blistering dissent from the majority opinion which held that, notwithstanding United States v. Lopez, Congress had the power to use the Interstate Commerce power to prohibit the mere possession of machine guns manufactured after May 1986, even though Congress had made no findings about the effect of such machine guns on interstate commerce. Judge Alito's dissent did not address the majority's assertion that Rybar had no Second Amendment rights because Rybar was not a member of the militia.

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

UPDATE: I haven't found anything yet on Karen Williams.

Michigan Supreme Court Justice Maura Corrigan has three notable gun cases, but none sheds direct light on her RKBA views. In a 2004 case, she wrote the majority opinion in a 5-2 decision creating a "good faith" exception to Michigan's exclusionary rule. The case involved a home search that discovered a firearm and marijuana. A robust Fourth Amendment is an important secondary protection for Second Amendment rights, and the Fourth Amendment has been devastated by "good faith" loophole for the exclusionary rule, as I detail in an Akron Law Review article.

Also in 2004, Justice Corrigan joined a majority opinion reversing the conviction of a longtime Michigan gun rights activist who had sold a firearm to undercover police officers in a sting operation. Justice Corrigan agreed that because the defendant had complied with Michigan's laws regarding handgun sales, his actions were not illegal. The decision bodes well for her attitude towards some of the law enforcement abuses and aggressive interpretation of gun control statutes which have too often characterized the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In 2001, Justice Corrigan was part of 4-3 majority which applied a "strict textualist" interpretation to the Michigan Constitution, thereby negating an attempting to prevent Michigan's Shall Issue concealed handgun licensing law from going into effect. The Michigan Constitution allows petitioners to stop a new statute from going into effect by gathering sufficient petitions to put the statute to a popular vote in a general election. However, the Constitution forbids delaying the implementation of a new statute which has an appropriation therein, and the Michigan licensing law included a one million dollar appropriation for county licensing boards. As Justice Corrigan pointed out, anti-gun advocates still could have petitioned for an initiative to overturn the licensing statute; they were simply barred from preventing the statute from going into effect in the period before the next election.

MORE UPDATE: Diane Sykes (7th Cir., formerly Wisc. Sup. Ct.) voted with a unanimous majority in the Cole case (holding that new Wisconsin constitutional RKBA did not confer a right to carry a concealed gun in an automobile), and with the majority in Hamdan (holding that there was a constituitonal right to carry concealed on one's business premises). (Both cases are discussed in my Albany Law Review article on state constitutional decisions on concealed carry.) According to one report of the oral argument, her questions showed her to be a gun owner, and to be supportive of the RKBA.


Friday, October 28, 2005

Wait a Sec -- What Is a Bush Administration Official Supposed To Do?

I. Lewis Libby is being indicted for lying to the government -- a substantial offense, if he's indeed guilty. But Jeralyn Merritt of TalkLeft complains at the Huffington Post that Karl Rove might avoid serious punishment because he told the truth to the government. Merritt outlines a scenario (which as best I can tell has to be strictly theoretical at this point) in which Rove would "make a plea deal with Fitzgerald under which he agrees to plead guilty if Fitzgerald agrees to request a sentencing reduction to probation, because of his cooperation against others." She then concludes:

As a devout critic of the Bush Administration, I bring it up because I don't like rats. If Karl Rove isn't indicted, or gets a sweetheart deal, I can't conceive of any reason why other than he sang his heart out.

So what's a Bush Administration official supposed to do? I would have thought that telling the truth to investigators about criminal misconduct, including your colleagues' misconduct, is generally part of a government official's job. It's also sometimes the self-interested thing to do, but while that might mean you deserve less credit for it, it doesn't mean you should be condemned for it.

Merritt's view, though, seems to be that Rove would be a "rat," whom she "do[es]n't like," for "s[i]ng[ing] his heart out." Should he compound his initial offense (if he had committed an offense) by failing to do his duty? I've heard people condemn the Bush Administration for placing too much premium on loyalty over other virtues -- but surely few (on the Left or on the Right) would think that Administration officials should place such a premium on loyalty that they refuse to testify about others' criminal conduct? Or is it damned if you do (covering up your colleagues' crimes; shameful!), damned if you don't ("singing" about your colleagues' crimes; shameful!)?

I'm not trying to defend Libby, Rove, or anyone else here against allegations that they committed a crime -- I have't been following the details closely enough to have much to add about that. But I do want to speak out against this facile condemnation of people who actually do what the legal system rightly wants them to do, which is to reveal information that they have about crimes that the legal system is investigating. Loyalty is a virtue in some contexts; but not in this context.

Thanks to Mark Moore, who takes a similar view, for the pointer.

Thoughts on the Libby Indictment: All things considered, the Libby indictment handed down today was narrower than I expected. As I read it, all five of the counts come down to Libby's lying to investigators and the grand jury about his contacts with the press. The counts seem pretty clearly valid and tight on the law, although none go to the substantive offense for which Libby was investigated.

  The nature of the counts sheds some light on what we have seen in the investigation for the last two years. In particular, Fitzgerald presumably was focused on getting the testimony of Cooper and Miller because Libby told investigators and the grand jury that he hadn't leaked anything to them; Fitzgerald needed their testimony to prove that false. On an entirely speculative front, Miller and Cooper might have refused to testify because they knew Libby had lied to investigators and the grand jury, and therefore knew that their testimony would directly contradict Libby's and lead to obtstruction and perjury charges. That might explain Judith Miller's reticence to believe that Libby had released her from her duty of confidentiality: Why on earth would Libby volunteer to let Miller hand over evidence that would lead to his felony conviction?

  Finally, it seems to me that Fitzgerald is being pretty careful here. He has Libby in what appears to be a direct lie to investigators and the grand jury, and he's not reaching for more. At least with Libby. At least for now.
NYU JOurnal of Law & Liberty On-Line Symposium on Sarbanes-Oxley:

Today the NYU Journal of Law & Liberty is running an online symposium on "Sarbanes-Oxley and the Federalization of Corporate Law." Those participating include Robert Ahdieh, Larry Backer, Allen Ferrell, Brett McDonnell, Jeff Lipshaw, Larry E. Ribstein, and Chief Justice Steele of Delaware. Lots of good posts up already.

Will It Be Sam Alito?: I've seen some speculation around the blogosphere that Judge Samuel Alito of the Third Circuit may be tapped by President Bush to fill the O'Connor slot, perhaps as early as tomorrow. I know Judge Alito a little bit, and have two quick thoughts. First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. Alito picked up the "Scalito" nickname early on, but while clever it's not accurate. Judge Alito is much more of a process-oriented judicial-restraint type than Scalia. While Alito is well-known for his early dissent in Planned Parenthood v. Casey, generally speaking he hasn't approached the job of appellate judge with an ideological edge. Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.

Related Posts (on one page):

  1. Quick Thoughts on the Alito Nomination:
  2. Will It Be Sam Alito?:

Thursday, October 27, 2005

Krauthammer's Comment on Harriet Miers' withdrawal:
  "I guess she reads my column," the Washington Post and Fox News commentator said yesterday. "All that was missing was the footnote."
McConnell and Bolling v. Sharpe:

Like Orin and Eugene, I'm an admirer of Judge McConnell. Among other things, he once offered a seminar at the University of Chicago on "Economic Liberties and the Constitution." I have no idea what his views are on such issues (I'm recalling, from seeing his syllabus many years ago, that the seminar discussed Lochner, commercial speech, takings, the constracts clause, and the dormant commerce clause, but my memory may be faulty), but I like the idea that a potential Supreme Court nominee thinks that constitutional protection of economic liberties is important enough to warrant teaching a class on the subject.

However, I think that if McConnell were to be nominated, his opponents would have such a good (albeit unfair) soundbite against him that I'm not sure that he could survive it. He wrote, in discussing the 1954 case of Bolling v. Sharpe, that "[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation." Balkin, ed., What Brown v. Board of Education Should Have Said, p. 166. The view that the Fifth Amendment does not prohibit discrimination by the Federal Government is a perfectly respectable originalist viewpoint, though, as I discuss in a recent Georgetown Law Journal article, I believe that originalists have vastly exaggerated the perceived problems with Bolling specifically, and more generally with the idea that the Fifth Amendment's Due Process Clause includes an antidiscrimination principle (indeed, I believe that Bolling was arguably more justified in terms of text and history than its companion case, Brown v. Board of Education).

But regardless of how plausible, sincere, or even correct McConnell's view of the Fifth Amendment and Bolling is, I'd hate to be on the receiving end of a People for the American Way ad stating that "Bush nominee Michael McConnell believes that the federal government may establish Jim Crow, segregated schools." Or, "McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity." Either such ad, while not exactly fair, would be accurate.

Related Posts (on one page):

  1. McConnell and Bolling v. Sharpe:
  2. Michael McConnell:
  3. The Miers Withdrawal:
Man Bites Dog: It's not every day that a Supreme Court Justice writes a review of a law professor's work. Given that, check out Justice Scalia's book review of Steven Smith's new book Law's Quandary. Its conclusion:
  As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of "richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-God!" Surely even academics can accept, as a hypothetical author, a hypothetical God! Textualists, being content with a "modest" judicial role, do not have to call in the Almighty to eliminate their philosophical confusion. But Smith may be right that a more ambitious judicial approach demands what might be called a deus ex hypothesi.
  Thanks to Howard (who else?) for the link.
What Sank The Miers Nomination?: My guess is that this theory is mostly right and this theory is mostly wrong. Hat tip: Howard.
Tomorrow: Be sure to tune in tomorrow for possible indictments in the Valerie Plame affair. I wouldn't be surprised if we find out the next Supreme Court nominee soon, too.
The Onion on Bernanke, Greenspan (and Rand):

From The Onion: American Voices

Greenspan Retiring

After 18 years of service, Alan Greenspan is retiring as chairman of the Federal Reserve at the age of 79. What do you think?

"He's irreplaceable. This Bernanke guy may be an anti-inflation fiscal conservative, but you just can't run the Fed if you've never screwed Ayn Rand."

Breaking News: Both the Tradesports betting site and the Slate Miers-O-Meter are predicting that Harriet Miers will not be confirmed. Well, I guess that does it.
My SCOTUS Pick is Still Edith Jones:

Since Orin and Eugene have re-upped the brilliant and talented Michael McConnell--who I agree would be an exceptional Justice--I will re-up Edith Jones and in the alternative, Alice Batchelder who I commented on some time ago. If the President seeks a woman, Jones remains the obviously correct choice in my book. Personally, I would be blissful with any of them, and many others as well.

While I'm at it, I figured I would go ahead and re-up this post on Judge Jones's decision in McCorvey v. Hill, where she concurred and discussed the state decisis and mootness problems spawned by Roe. If she ends up being nominated, I would encourage to you read what she actually wrote there which I think is more complicated and interesting that it has been described elsewhere.

Michael McConnell:

Just thought I'd echo Orin's words about Michael McConnell; as I've said before, McConnell is a brilliant and tremendously respected scholar and, for the last few years, Tenth Circuit judge.

The Miers Withdrawal: So Harriet Miers has withdrawn her candidacy under what seems to be the Krauthammer cover — a move that President Bush was telegraphing pretty strongly over the last few days by repeatedly mentioning that obtaining White House documents was an important "red line" he absolutely would not cross. That's a relief.

  My immediate reaction is that the system worked. Harriet Miers is by all accounts a good person and a solid lawyer, but wasn't particularly well-suited for the unique environment of the Supreme Court. As I noted last week, I think the tipping point was sometime last Thusday or Friday, when it became clear on the Hill that Miers just wasn't going to be able to deliver the kind of performance at her hearings that she needed to deliver to get confirmed.

  The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams. (For my post making the case for McConnell, click here.)
Miers Withdraws:

CNN Reports: President Bush "reluctantly" accepts Supreme Court nominee Harriet Miers's request to withdraw her nomination.

Symposium on the Rehnquist Court: Just a quick reminder for VC readers in the DC area -- the George Washington Law Review is hosting a symposium on the legacy of the Rehnquist Court on Thursday and Friday at GW Law School, 2000 H Street, NW. You can see the schedule of events and list of speakers here. The address by Justice Ginsburg and the panel on the role of Solicitors General is a ticketed event, but I believe that the rest of the symposium is open to the public. For more information, contact Jenn Mascott, jmascott (at)

Wednesday, October 26, 2005

Hart & Wechsler's "The Federal Courts and the Federal System": Is this famous casebook a magnificent treatise? A law geek's guilty pleasure? Or is it just an annoying series of unanswered questions? Over at Concurring Opinions, Nate Oman explains why H&W is "the only one of my case books from law school that I still regularly consult."
Funny -- and Possibly True -- Post on Preppiness and WASPness

by Tom Smith at The Right Coast. Much worth a read.

The Growing Influence of Political Blogs: The Christian Science Monitor has the story. Link via Bashman.
Senators Respond to the 1993 Miers Speech: MSNBC has the scoop here. Senator Brownback's reaction: "It does raise concerns . . . I think she has a high hill to climb." Senator Feinstein's reaction: "Not bad."
Miers Speech:

I much appreciate Orin's pointing to Harriet Miers' 1993 speech, but I'd also encourage people who read the quoted paragraphs to look at the whole document, which is only 14 pages long. The speech as a whole strikes me as considerably better written than those two paragraphs are.

The Second Amendment and the Living Constitution:

The federal statute that preempts various lawsuits against gun manufacturers — passed last week — begins with two interesting items denominated Congressional "findings":

(a) Findings- Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

Of course, courts interpreting constitutional provisions are by no means bound by Congress's assertions about the provision's meaning; they may interpret the provision more broadly than Congress urges, or more narrowly. Yet I take it that part of the reason for the findings was that courts sometimes are influenced, at least in some measure, by the judgments of a coordinate branch of the federal government. (At least courts sometimes says that they are thus influenced; query how sincere such assertions are, and to what extent they are just there to support a conclusion that the judges would have reached in any way.)

In any event, this reminded me of an item that I wrote about in the National Review Online in December 2002, and that struck me as worth rerunning. Here it is, in case you're interested; and as you read it, you might add an item 3.5, which is “look to what coordinate branches of the federal government have said” — here, look to the Congress’s most recent statements in the new act, as well as in the Firearms Owners Protection of 1986, and the Executive Branch’s most recent statements in the Attorney General’s Memorandum Opinion on the Second Amendment (2004). Note that the argument below does not endorse an “evolving Constitution” approach to interpretation, but just discusses what result I think an evenhanded application of that approach should yield, especially given that all the plausible guideposts — the 1868 views, current public opinion, state constitutional judgments, and coordinate federal branch judgments — point in the same direction.

[Some ask] . . .: Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say . . . the Framers [did think] of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality?

1. Well, here's one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn't look at what people in 1791 thought of the right to bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right to bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen's Bureau Act of 1866 (surely not intended by Congress to preserve states' powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here's another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in [a 2002] poll . . ., 73 percent took that view, and 20 percent took the states' rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right to bear arms. The result would probably be similar: For instance, a [2002] Freedom Forum First Amendment Center poll . . . found that 48% of respondents saw "the right to own firearms" as "essential," and another 31% saw it as "important."

3. Here's a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public's will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we'll see that Bills of Rights in 44 of the 50 state constitutions secure a right to bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can't secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What's more, since 1970, 14 states all across the country have either added a right to bear arms provision to their state Bill of Rights, or strengthened an existing one. Here's the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

4. So under all these approaches, the right to bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that "evolving standards" should lead courts to reject the individual rights view of the Second Amendment? Seems to me there's only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don't like a constitutional right, your honor? You don't think it makes sense today? No problem! Just evolve it out of existence.

"The very purpose of a Bill of Rights," Justice Jackson wrote in the 1943 flag-salute case, "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Words to live by, it seems to me.

Harriet Miers on the Role of the Courts: The Washington Post has unearthed some speeches that Harriet Miers gave in the early 1990s, and one of them appears to include a discussion of the role of the courts in hot-button areas like abortion and religion. Here is the most illuminating passage, recopied from this .pdf file:
  What else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protesters have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.
  The law and religion make for an interesting mixture but the mixture tends to evoke the strongest of emotions. The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of.
  The writing is awkward enough that I'm not entirely sure what she is saying. In particular, it's unclear in the second paragraph whether solving "cases" means imposing judicial solutions or finding some other kinds of solution. VC readers, what do you think?

  Link via How Appealing.

  UPDATE: A reader at Bench Memos points out that this speech was given shortly after the Supreme Court's decisions in Lee v. Weisman and Planned Parenthood v. Casey, so Miers may have been referring to the majority/plurality opinions in those cases. But we can't be sure.

Related Posts (on one page):

  1. Miers Speech:
  2. Harriet Miers on the Role of the Courts:
The Ramifications of Neutrality (and Federalism):

While we wait to hear whether Patrick Fitzgerald indicts anyone in the Bush Administration, I think back to a conversation I had shortly before the 2002 elections with a friend who was in the White House Counsel's office. The friend said that having a Republican majority in the House and Senate mattered a great deal in the White House -- yes, it would help with legislation; but more to the point, the friend stated happily, "That means no investigations." As the friend noted, investigations had tripped up prior Presidents, but with the demise of the independent counsel statute, investigations would be controlled by Republicans -- and the White House had every reason to expect that it would be able to control them. (I had a somewhat similar conversation with another White House friend before the 2004 elections, but that is another story.)

But a funny thing happened to this plan: when Plame's outing as a CIA agent became an issue, Ashcroft recused himself (appropriately, given his close ties to some of the apparent targets), leaving the matter in the hands of his deputy, James Comey. Comey, in turn, appointed Patrick Fitzgerald, a Republican not known as a hard-core loyalist. The White House, angry that in this action as well as some of his hiring decisions Comey "erred too much on the side of neutrality and independence," made it clear that he would not be appointed Attorney General. (Indeed, a White House official gave an additional quote that Orin higlighted at the time, and that I still find disturbing in describing the leadership of the Department of Justice: "The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president." The whole Legal Times article is worth reading, although you need to subscribe to get access.)

Had Comey appointed someone who looked tough but in fact wouldn't really harm the White House, life would have been a lot easier in the West Wing. But Comey showed that darned independence, and now they may be in quite a pickle. (Of course, it could be that Fitzgerald issues no indictments and all this blows over. We'll just have to wait and see.)

I hope that the lesson the Bush Administration draws from all this is not that they made mistake in failing to appoint a more "loyal" Deputy Attorney General, but I wouldn't count on it.

A final note: the only other prosecutorial cloud on the horizon results from federalism. If the federal government controlled the units below it, there would be no indictment against Tom DeLay. When you control the levers of the federal government, state and local (like Comey's "neutrality") represents a wild card. The Bush Administration doesn't like wild cards (and in practice it often doesn't like federalism). But control right now seems to be in short supply.


Tuesday, October 25, 2005

GOP Senators Voice Miers Doubts: The New York Times has an important report in tomorrow's paper about how Miers is being received among GOP Senators:
  The drumbeat of doubt from Republican senators over the Supreme Court nomination of Harriet E. Miers grew louder Tuesday as several lawmakers, including a pivotal conservative on the Judiciary Committee, voiced concerns about her selection.
  Emerging from a weekly luncheon of Republican senators in which they discussed the nomination, several lawmakers suggested that as Ms. Miers continued her visits on Capitol Hill, she was not winning over Republican lawmakers.
 "I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned, that is pretty obvious."
  Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."
  "There is an awful lot of Republican senators who are saying we are going to wait and see," he said.
  Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."
  "I certainly go into this with concerns," Mr. Coleman said.
  There's more in the article — the whole thing is worth reading.
Housing Market Update:

I've only given investment advice once on the VC, and that was back on August 1, when I suggested that a good home for "speculative money" would be Jan. 2007 puts on homebuilding stocks. As you can see from these three-month charts, this was a very good call, though I should have suggested October or November puts instead!

Underneath the headlines trumpeting continued strong home sales is a host of worrying signs for the housing market, including declining prices for both resale and (especially) new homes, troubles at Fannie Mae, rising interest rates, investors who can't cover their mortgages in a (relatively) weak rental market and are being forced to sell, hundreds of thousands of adjustable-rate mortgages (many of them with initial "teaser rates" that allowed buyers to afford the unaffordable) that are due to adjust way up in the next 6 to 24 months, and more. Major markets like the D.C. area(where even my house-hungry wife agreed that things were "too crazy" this past Spring to buy) are starting to take a pounding.

The easy money has been made in homebuilding puts, but I wouldn't be surprised to see 2000 NASDAQ-like declines in some of these stocks. Not being much of a speculator myself, I'm just holding my relatively meager "investment" in puts, sticking with my plan to keep 'em close to or up to expiration. Meanwhile, from a financial point of view, I wouldn't consider buying anything in a "hot" market right now.

The End of Federalism? John Eastman has an interesting take on the reaction to the Miers nomination.
Why has there been such a firestorm over President Bush's most recent nominee to the Supreme Court? One answer: the nomination of Harriet Miers exposes the fault lines of disagreement within the conservative coalition, and appears to have boxed out one significant—perhaps the most significant—component of that coalition.
Read his column, The End of Federalism?, to find out the component to which he is referring and how it has been boxed out. If he is right, this could be a telling development for the Republican political coalition. Comments by those who have read his analysis are welcome here.
Dean Polsby to Speak on Military Recruitment on Campus Case:

DC area readers may be interested to know that GMU Law Dean Dan Polsby will be the speaker this week at the monthly luncheon of the DC Lawyers Chapter of the Federalist Society, discussing the Solomon Amendment case that will be heard by the Supreme Court this term.


DATE: October 28, 2005 TIME: 12:00 - 1:30 PM LOCATION: Tony Cheng's Restaurant located at 619 H Street, N.W. (Gallery Place Metro) COST:$15.00 for members and $20.00 for guests (collected at the door)

To RSVP (acceptances only): Email RSVPs to or Call 202-822-8138 (please include the names of all registrants).

Americans for Better Justice:

Wow--that was fast. ABJ already has a television ad up on its web site that it says will start running tomorrow on Fox News.

The Washington Post also reports that the other newly-organized conservative group (described yesterday as a "consortium of social conservative groups"), includes "includes the Eagle Forum, the Center for a Just Society, and ConservativeHQ." The article adds, "So far, several of the most politically potent conservative groups are either supporting Miers -- such as Focus on the Family, led by James C. Dobson -- or have stayed neutral with varying degrees of unease. Some groups in the latter category, such as the Family Research Council, are close to coming out formally against her, according to sources familiar with their internal deliberations."

Super-Precedent: Some of you may remember Senator Arlen Specter asserting the existence of what he called "Super-Precedent" during his questioning of John Roberts. Now two highly-regarded academics, Dan Farber (UC Berkeley) and Michael Gerhardt (UNC) have defended the idea that some precedents are so foundational or "bedrock" that they, in effect, supersede the written constitution and cannot be reversed.

They presented their papers at the 2005 Minnesota Law Review Lindquist & Vennum Symposium entitled, "The Future of the Supreme Court: Institutional Reform and Beyond," and I presented a critical reply. While our papers are not yet available on line, you can click here to watch us discuss the idea of so-called Super-Precedent via Real Video in the webcast of the conference. Each talk lasts 20 minutes. (My response begins at 48:00 minutes on the webcast.)
2,000 American Soldiers: The Associated Press has a report on the number of U.S. military personnel that have died in Iraq.
Beth Thornburg on Harriet Miers: SMU lawprof Beth Thornburg worked with Harriet Miers for a few years in private practice, and had an interesting piece about Miers in the Dallas Morning News a few days ago. The essay concluded with some speculation about what Miers might do if confirmed to the Supreme Court:
  If she follows her lifelong pattern, [Miers] will bond with and start deferring to the most appealing powerful male on the court. Pundits reading tea leaves should then concern themselves with which justice she would choose: Justice Antonin Scalia? Chief Justice John Roberts?
  But if she becomes the next justice, something else may happen to Ms. Miers. After all, she will need no further boosts up the career ladder. She will have no client whose interests must be zealously represented. She will be armed with her considerable intelligence and work ethic.
  She can finally, if she chooses, feel completely free to speak her mind. I have no idea whether I would agree with the positions she might take. I can only hope that those positions are informed by the years she spent as the only woman in the room.
  UPDATE: This April 2005 interview with Miers is worth reading, too.
Why didn't I think of this?!!

A truly wonderful idea from the bleat: buying, but then destroying, lottery tickets (so that you can experience the delightful sense of relief when your numbers are not chosen . . .)

Woohoo! Time to Buy That Corporate Jet!

Paul Caron reports that The Volokh Conspiracy is worth $1.3 million (OK, probably not enough to justify a corporate jet, even if it was a sensible estimate). From his lips to God's ears.

Here's the site that will evaluate your own blog, for those who are likewise ready to sell out. Caron notes that "The valuation is based on the number of links to a blog, not on the amount of traffic the blog generates." Hey, whatever; just give me my money.

United States v. Syphers and the Timing of Computer Search Warrants: In United States v. Syphers, a case decided last week, the First Circuit opined on a tremendously interesting question of Fourth Amendment law: When the police execute a warrant to seize a computer, are there any temporal limits on when the government needs to analyze the computer that has been seized? Unfortunately, the court's opinion is remarkably confusing.

  The timing of computer searches is an interesting question because computer warrants usually are executed in a two-step process. First, the police go to the place to be searched and take the computer away; and second, a trained government computer forensic analyst examines the computer for the evidence the computer contains. Existing Fourth Amendment rules on the timing of searches focus entirely on the first step. That's understandable: this is the only step in most traditional searches. After the evidence has been retrieved, the search is done.

  Under the existing law that regulates only the first step, the basic rule is that the initial search has to occur in 10 days after the warrant is sighed under statutory rules such as the Federal Rule of Criminal Procedure 41. The constitutional concern driving this rule is that if the police wait for too long, the probable cause that led to the warrant may become stale. The question is, what rules govern the second step, the electronic search through the defendant's computer? At this point, the police have the seized computer in their custody. Most offices and agencies have a considerable backlog of computer forensic work, though, so they don't get to a newly seized computer for months. Is this too long? For that matter, is any period too long?

  The handful of district courts that have addressed the issue have agreed that the 10-day requirement of Rule 41 does not apply to the second step. Agents have to seize the computer in the 10 days, but they don't need to analyze it within that window. The harder question is what if anything the Fourth Amendment has to say. A few district courts have suggested that there are no rules on when the government must search a seized computer, but a few others have suggested that the Fourth Amendment requires investigators to search seized computers in a "reasonable" time.

  This issue came up at the appellate level for the first time in the Syphers case, in an opinion by Judge Patti Saris, a district judge sitting by designation. Syphers involved a state investigation in which the government applied for and obtained an order permitting the government to search the computer in a one-year window. The computer was searched five months into the one year. Judge Saris first held that Rule 41 was not applicable because this was a state investigation, not a federal investigation. Saris then turned to the Fourth Amendment question:
  The Fourth Amendment itself "contains no requirements about when the search or seizure is to occur or the duration." United States v. Gerber, 994 F.2d 1556, 1559-60 (11th Cir.1993). However, "unreasonable delay in the execution of a warrant that results in the lapse of probable cause will invalidate a warrant." United States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir.1984). The restrictions in Rule 41 "not only ensure that probable cause continues to exist, but also that it is the neutral magistrate, not the executing officers, who determines whether probable cause continues to exist." Id. The policy behind the ten-day time limitation in Rule 41 is to prevent the execution of a stale warrant. "A delay in executing a search warrant may render stale the probable cause finding." United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir.1997).
  A delay in execution of the warrant under Rule 41 does not render inadmissible evidence seized, absent a showing of prejudice to the defendants resulting from the delay. See United States v. Cafero, 473 F.2d 489, 499 (3d Cir.1973). Courts have permitted some delay in the execution of search warrants involving computers because of the complexity of the search. See, e.g., United States v. Gorrell, 360 F.Supp.2d 48, 55 n. 5 (D.D.C.2004) (ten-month delay in processing of computer and camera seized, although "lengthy," "did not take the data outside the scope of the warrant such that it needs to be suppressed"); United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 66 (D.Conn.2002) ("[C]omputer searches are not, and cannot be subject to any rigid time limit because they may involve much more information than an ordinary document search, more preparation and a greater degree of care in their execution.").
  The primary question is whether, under the policies embedded in Rule 41, the one-year extension order issued by the court because of a backlog in computer crimes investigations provided an excessive amount of time to allow for the search of a computer already in police custody pursuant to a warrant. Under the circumstances, the five-month delay did not invalidate the search of appellant's computer because there is no showing that the delay caused a lapse in probable cause, that it created prejudice to the defendant, or that federal or state officers acted in bad faith to circumvent federal requirements.
  I confess I am quite puzzled by this. If Rule 41 is inapplicable, as Judge Saris found, why is the court looking to "the policies embedded in Rule 41" to decide the case? Why is this the "primary question," and what other questions are there? For that matter, just what "policies" are "embedded" in Rule 41? The "prejudice" test is used to determine when Rule 41 violations lead to suppression; why it is being used if Rule 41 isn't implicated here? And what kind of prejudice might be relevant, given that the search occurs back at the government's lab — and that if the computer is found to contain evidence, the computer can be kept in government custody until the trial? For that matter, how can delay in the search of a seized computer cause a lapse in probable cause, given that all of the evidence is stored inside the computer?

  Can anyone make more sense of this analysis than I can? I'm not sure I understand what the Court did.

  For more on these issues, see my forthcoming article Search Warrants in an Era of Digital Evidence.
Cathy Young on Same-Sex Marriage and Maggie Gallagher's Posts Is


Unusual Law School Classes: Over at Concurring Opinions, Dan Solove is seeking input on "unusual" law school classes. Dan starts off with a list of some of the classes offered when he was a student at Yale Law School, including "Tragic Choices" and "Is Constitutional Law Law?"
Will Texas Ban All Marriages?: According to the Houston Chronicle, a proposed amendment to the Texas constitution would forbid the state from "recogniz[ing] any legal status identical or similar to marriage." Proponents of the amendment say they only want to ban same-sex marriage, not all marriage. Any thoughts on how a strict constructionist would read the language? Thanks to Mark Yzaguirre for the link.
Hewitt v. Hewitt: Before he left for vacation, Hugh Hewitt was saying that we can't trust law professors and constitutional law experts who claim that Miers lacks proven competence. According to Hugh, such critics simply are being elitist. The elites say Miers lacks competence because they want people to believe that law is only understood by experts such as themselves:
  I am not surprised that many ConLaw scholars are convinced of the complexity of ConLaw-related judging. There are obvious reasons why elites are obliged to argue for the necessity of elites. But the reality is that SCOTUS judges aren't scientists or engineers, confined by their specialities to narrow areas, and the skills of an accomplished trial lawyer can be quickly adapted to judging.
  Hugh is now back from vacation, and adds that we also can't trust the Miers critics who are not law professors or constitutional law experts. Why? According to Hugh, such critics are not elite enough to know whether Miers is competent:
  The majority of commentators who are not lawyers — there are many — are simply not equipped to judge Harriet Miers' competence. . . . There is disagreement among the ConLaw superstars. Perhaps lesser mortals in this field should wait for the hearings?
  Hmm, I think I sense a theme here.

Related Posts (on one page):

  1. Hewitt v. Hewitt:
  2. Harriett Miers as Potter Stewart:
Rosa Parks has passed away. Link via Howard.

Monday, October 24, 2005

Introducing The Plank: The New Republic has just launched a new blog, The Plank, that so far features contributions from Michael Crowley, Franklin Foer, Jason Zengerle, and Noam Scheiber. The intro post is available here.
Deaths Due to Sexually Transmitted Disease:

An interesting article, S.H. Ebrahim, M.T. McKenna & J.S. Marks, Sexual Behaviour: Related Adverse Health Burden in the United States, Sexually Transmitted Infections, vol. 81, pp. 38-40 (2005), reports that sexually transmitted diseases were responsible for nearly 30,000 deaths in the U.S. in 1998. A third of the deaths were among women, and two thirds among men. By way of comparison, there were about 44,000 deaths caused by car accidents, a titch over 30,000 suicides, a little under 18,000 homicides, and a bit over 30,000 total firearms deaths (including suicides, homicides, and the few accidents). Three quarters of the deaths were from HIV, but nearly 5000 were from cervical cancer, which seems to be generally caused by some strains of human papilloma virus, and nearly 2000 were caused by sexually transmitted hepatitis and hepatitis-caused liver cancer. (The study purported to take into account the fact that not all hepatitis is sexually transmitted.) There were also over 100 deaths from syphilis and fewer than 10 from gonorrhoea (presumably from the very rare gonorrhoea-caused heart disease), but apparently modern antibiotics have done a great deal to limit death and serious illness caused in the U.S. by bacterial sexually transmitted diseases.

The study also reported that sexually transmitted disease causes some 600,000 cases of infertility per year (overwhelmingly among women); and of course hepatitis, cervical cancer, liver cancer, and HIV can be quite painful and disabling even when they don't cause death.

There are vaccines against hepatitis, and now a promising new one against human papilloma virus, but of course not everyone is vaccinated, or likely to be vaccinated soon. And while condoms can reduce the transmission of viruses, of course people often neglect to use them, or decide not to use them. However much you try to educate people about this, you're highly unlikely to get to anywhere near 100% condom use, even in relatively high-risk encounters.

I disagree on many things with many of the foes of the Sexual Revolution; I don't have moral objections to casual sex or to promiscuity; and I certainly don't support criminalization of consensual adult sexual behavior. Nonetheless, it seems to me that we need to acknowledge that sexually transmitted disease is a serious matter, and there are real medical costs (as well as real hedonic benefits, plus real hedonic costs) to the glamorization of relatively casual and promiscuous sex that seems present in our culture (though not in all of its subcultures).

Pfizer Responds to New London Day Story:

This morning I posted on a Pfizer's role in the Kelo takings, as reported in the New London Day newspaper using documents obtained under Connecticut's Freedom of Information Act. Pfizer responded to the article in a Letter to the Editor (registration required). Here is Pfizer's response to the article (reproduced in full):

Featured in Letters to The Editor

Pfizer Didn't Call For Razing Fort Trumbull Published on 10/18/2005

Letters To The Editor: Your story "Pfizer's fingerprints on Fort Trumbull plan," published Oct. 16, simply recycles a well-worn, untrue myth - that our company's decision to invest here was conditional on the replacement of the surrounding neighborhood.

That charge is unjustified and plain wrong. The documents and conversations you report show that, in 1997, the state and city asked Pfizer executives for ideas on how our arrival might impact Fort Trumbull.

At that time, we believed our $300-million investment and 1,500 new employees would act as magnets - drawing many others to this area.

Our architects shared our optimism and their diagram includes ideas about how our new neighborhood might evolve if we built here. We had optimism and ideas, but we had only two demands. First, we wanted the next-door sewage plant capped to reduce odor. Second, we wanted the restoration of the long-abandoned and derelict Revolutionary war fort. Both conditions were met and brought considerable benefit to the city.

We insisted on nothing else. Anyone who doubts that should consider a glaring truth. If there were other demands, and these were not met, why did we go ahead and build?

We share our neighbors' frustration and sadness for the city's troubles. Rather than making Pfizer a scapegoat, please judge us on our record.

We have made huge investments here and we have delivered all our promises on employment, investment and taxation. We are a good citizen and neighbor.

William Longa New London

Editor's note: The writer is assistant general counsel with Pfizer Global Research and Development.

Related Posts (on one page):

  1. Pfizer Responds to New London Day Story:
  2. Pfizer's Role in Kelo Takings:
More on Americans for Better Justice:

David Frum has more on Americans for Better Justice, which I mentioned this morning. Frum says that they have raised money for television and radio ads urgint Miers's withdrawal.

He also mentions, which he describes as "consortium of social conservative groups that will encourage members to write directly to their representatives in Congress." That site does not indentify its sponsors, but I have been told (but have not confirmed) that it is backed by several major social conservative groups.

My impression is that the White House still seems somewhat bewildered by all this--and that was before two new conservative anti-Miers organizations emerged.

The New Greenspan:

When I first heard that President Bush was tapping a "White House economic adviser" to replace Alan Greenspan, I worried this was "Harriett Miers, Round II." It appears such concerns were completely unwarranted. Bush's choice of Ben Bernanke is getting very positive reviews. Tyler Cowen praises the choice here and here. Brad DeLong also calls Bernanke "a very good choice." If Cowen and DeLong agree — and the markets are up — who am I to suggest otherwise. (After all, I'm just a law professor.)

Are Bloggers Influencing the Miers Debate (Part II)?:

Orin asks whether bloggers are influencing the Miers debate. Last week we were honored to have Attorney General Gonzales speak at George Mason Law School, where he addressed the subject of judicial confirmations. The full text of his remarks is available here.

Here's what the AG had to say on the specifc subject of blogs and other new media:

The confirmation process has been fundamentally changed by technological changes that allow the instantaneous and costless spread of information. In this age of the 24-hour news cycle of blogs, talk radio, and cable news, there is a seemingly constant vacuum to be filled with new information on the nominee. Much of this revolution is for the good, as it allows the public to develop a more informed view. But there are harmful effects as well. Unsubstantiated rumors, false allegations, and distorted facts can be spread with impunity by those who don't take the time to check the facts-as well as by those who affirmatively seek to mislead. And once such baseless claims and innuendo are made, the Internet ensures that they take on a life of their own and can never be fully rooted out.

In light of these changes, those who traffic in information owe all Americans a duty to act in good faith, to avoid circulating falsehoods, and to verify information before broadcasting it. The careers and reputations of good people depend on that. And I urge the Senate to exercise discipline in its consideration of judicial nominations. It is important that amidst all of the static surrounding a nominee, the Senate focus on the characteristics that are essential to good judging, seek out reliable information, and maintain the dignity of a process that is essential to our democracy.

My recollection is that he returned to the subject of blogs in the Q&A and reiterated largely the same points, but I could be mistaken. If anyone is reading who was in attendance at the speech as well, feel free to elaborate on or correct me on that point.

There was also the comment by Sean Rushton, executive director of the Committee for Justice (quoted in the New York Times on Oct. 9), who said that generating enthusiasm for Ms. Miers was proving difficult because "anytime we put out something positive about her it gets shot to pieces by all our allies and the blogs."

So, I obviously don't know the answer to the larger question. And I certainly don't know if legal blogs are having much influence relative to poltical blogs such as Red State or National Review (which are also different from one another, of course). But both of these bits suggest that at the very least the White House is aware of what is happening in the blogosphere, even if it is not influenced by it.

What Should Democrats Do About Miers?: Lawprof Jack Balkin offers some very interesting thoughts.
Volokh Conspiracy ads -- still a great deal,

for about the next three weeks. (Starting Nov. 16, we'll be going with Pajamas Media, which I imagine will charge a lot more.) According to the BlogAds counters, we get about 230,000 pageviews per week; the premium strip is only $400/week, and the standard strip only $150/week.

(The Other) "Justice Ginsburg":

When the Harriett Miers was first announced, I noted that the common thread between her and John Roberts was that they were both likely to uphold the use of executive power in the War on Terror, having both served faithfully in the Executive branch. I'm currently reading Right Nation: Conservative Power in America, and I now note another (not unrelated) common thread: they both have strong ties to the Bush family. Roberts served as Deputy SG for Bush senior, and was nominated, though not confirmed to the D.C. Circuit by him. And he was of course later nominated and confirmed by W. Miers, of course, is infamously a Bush crony. The authors of Right Nation point out that loyalty and cronyism are Bush family trademarks. Indeed, W. made his fortune through oil company cronyism, and Bush Senior weeded out all Reaganites from the White House in favor of Bush hangers-ons (including apolitical family friends from Texas).

The Miers fiasco presents an opportunity for conservatives to put a stop to the Bushes' preference for cronyism and loyalty over principles, a particularly bad preference when it comes to the Supreme Court. The obvious successor to Ms. Miers, when her nomination is ulimately withdrawn or defeated, is Judge Douglas Ginsburg of the D.C. Circuit. He's clearly one of the leading judges in the country, with vast experience in antitrust law, admintrative law, constitutional law, and more. His marijuana incident is now more than twenty years in the past, and no longer seems disqualifying in any event, given subsequent revelations ("I didn't inhale" and whatnot).

Most important, Ginsburg (who is still only sixty) is not a Bush crony or loyalist, and can be counted on as a strong and independent voice on the Court. And conservatives would rally around: if he was good enough for Ronald Reagan, surely he's good enough for the Bush Adminstration.

UPDATE: If not Ginsburg, I'll settle for other brilliant, not-age-disqualified Reaganites, including Danny Boggs, Frank Easterbrook, and Alex Kozinski. Anyone noticed that except for J. Harvey Wilkinson, no Reagan appointees seem to have made any of the circulated "short lists?"

Are Bloggers Influencing the Miers Debate?: Dan Solove takes a look. My sense is that Dan is basically right, but I'm hardly in a position to offer an unbiased view.
Justices Related to Presidents:

Which Justices were related to Presidents? I can think of three (or two, depending on how you interpret the question), though there may well be others.

Well-attested answers only, please -- no hypothetical guesses. If you think, for instance, that Justice Kennedy is related to President Kennedy, or Justice Todd to President Lincoln's wife Mary Todd Lincoln, please point to specific evidence supporting this.

More Fund on Miers:

Another hard-hitting column today by John Fund on the Miers nomination.

A friend of mine made the interesting observation that perhaps the best evidence of the continuing problems with the Miers nomination has been the willingness of so many inside and close to the White House to leak so much negative information to John Fund, from a White House that has been able to control such matters in the past.

Pfizer's Role in Kelo Takings:

Several people have noted that they believe that my reference to "what's good for Pfizer is good for New London" in a recent post was a red herring. As I have noted previously, Justice Stevens begins his opinion by contending that the New London redevelopment plan came about only after painstaking consultation with all relevant stakeholders, and in the end, the city just happened to agree with Pfizer on everything that it wanted, including the taking of the Kelo plaintiffs' homes.

I confess that I was surprised at some of these criticisms. Having talked to lawyers involved in the case, it seemed to be fairly well understood and accepted that Pfizer was the driving force behind the plan and that the takings were undertaken at Pfizer's behest. As one lawyer reported at a Georgetown Federalist Society program that I participated in, "Pfizer got pretty much everything that they wanted."

An article in the the New London Day newspaper (registration required) has now uncovered the depth of the Pfizer's involvement in motivating the government's exercise of the eminent domain power to take the Kelo plaintiffs' homes (HT: Roy Poses at Health Care Renewal Blog). Using extensive documents obtained under the state's Freedom of Information Act, the article reports that Pfizer drove the process from the outset and essentially made the takings of private homes and subsequent redevelopment a condition for its moving to New London.

The article is very long and detailed. I'll just quote the first several paragraphs that sum up the findings of the investigation:

Pfizer's Fingerprints On Fort Trumbull Plan

Documents show the pharmaceutical giant was involved in the Fort Trumbull project form its inception, even before announcing its research center would expand into the New London neighborhood

In mid-July, as commentators and politicians around the country decried this city's attempt to seize private homes for economic development on the Fort Trumbull peninsula, a press release appeared on the Web site of Pfizer Inc.

The pharmaceutical company, whose $300 million research complex sits adjacent to what remains of the neighborhood, announced that it wanted to set the record straight on its involvement in the Fort Trumbull development project.

The project, the statement said, wasn't Pfizer's idea.

“We at Pfizer have been dismayed to see false and misleading claims appear in the media that suggest Pfizer is somehow involved in this matter,” the statement said. The writers said the company “has no requirements nor interest in the development of the land that is the subject of the case.”

But a recent, months-long review of state records and correspondence from 1997 and 1998 — when officials from the administration of then-Gov. John G. Rowland were helping convince the pharmaceutical giant to build in New London — shows that statement is misleading, at best.

In fact, the company has been intimately involved in the project since its inception, consulting with state and city officials about the plans for the peninsula and helping to shape the vision of how the faded neighborhood might eventually be transformed into a complex of high-end housing and office space, anchored by a luxury hotel.

The records — obtained by The Day through the state Freedom of Information Act — show that, at least as early as the fall of 1997, Pfizer executives and state economic development officials were discussing the company's plans, not just for a new research facility but for the surrounding neighborhood as well.

And, after several requests, the state Department of Economic and Community Development produced a document that both the state and Pfizer had at first said did not exist: A 1997 sketch, prepared by CUH2A, Pfizer's design firm for its new facility. Labeled as a “vision statement,” it suggested various ways the existing neighborhood and nearby vacant Navy facility could be replaced with a “high end residential district,” offices and retail businesses, expanded parking and a marina.

Those interactions took place months before Pfizer announced that it would build in the city, on the site of the former New London Mills linoleum factory, and months before the New London Development Corp. announced its redevelopment plans for the neighborhood and the former Naval Undersea Warfare Center next door.

As I have noted, a particular understanding of the facts in the case and the governmental processes behind it seems to underpin Justice Stevens's opinion in the case. His belief that judicial enforcement of the "public use" clause is unnecessary seems to be rooted in the notion that local democratic processes will be transparent and participatory in discerning the "public good" in these matters. In fact, it seems clear that Pfizer had the taking of individual's house "wired" from the outset and that there was little that could be done to change this.

The article notes the way in which the Court's particular understanding of the facts influenced its decision in the case:

NLDC and city officials have long characterized their efforts to recast the working-class neighborhood as a response to Pfizer's decision to build on the peninsula, rather than a move made as a condition of Pfizer's involvement in the project.

And in the state and federal court rulings that upheld the city's takings of homes for the private development project, judges at every level of the judiciary have assumed the same.

Even in a blistering dissent, which warned that the NLDC's plan left all private property under the “specter of condemnation,” U.S. Supreme Court Justice Sandra Day O'Connor sets the beginning of the case in February 1998, when Pfizer announced its plans to build its facility. While challenging the constitutionality of the eminent domain project, O'Connor and the other justices accept that it was an independent effort to “complement” the construction of a research complex next door.

But in a series of recent interviews, several former high-ranking state officials confirmed what opponents of the project have long insisted and what the company continues to deny: The state's agreement to replace the existing neighborhood was a condition of Pfizer's move here.

Current and former Pfizer executives, meanwhile, concede that the company expected a major redevelopment of the area to occur and offered guidance, but they strongly deny that they insisted on specific changes.

The entire article is worth reading. I hope it is still available on the Day's website.

Related Posts (on one page):

  1. Pfizer Responds to New London Day Story:
  2. Pfizer's Role in Kelo Takings:
Americans for Better Justice:

To date, the conservative opposition to the Miers nomination has been somewhat unorganized and spontaneous. It now appears that the opposition has been raised a level with the new organization "Americans for Better Justice." It describes its mission as:

Americans for Better Justice, Inc. (ABJ) is a 501(c)(4) political non-profit organization made up of grassroots conservatives from across the country who support President George W. Bush, but disagree with the nomination of Harriet Miers to the Supreme Court.

ABJ supports the nomination to the Supreme Court of candidates who are highly qualified and have demonstrated a proven commitment to the principles of judicial restraint and respect for the original intent of the authors of the Constitution. Through education and advocacy, we will respectfully urge the Bush Administration to withdraw this nomination.

Given the White House's cries of "sexism" with respect to opposition to Miers's nomination, it is notable that ABJ's Board of Advisors includes several prominent female conservatives and libertarians (in addition to David Frum and others):

Americans for Better Justice Board of Advisors

David Frum

Linda Chavez

Mona Charen

E.C. Birg

George Conway

Virginia Postrel

Michael Dokupil

Ephraim (Fry) Wernick

ABJ's web site collects links to numerous articles by conservative luminaries commenting on the nomination.

I understand that David Frum is scheduled to appear on Laura Ingraham's radio show today to discuss this new group.

Needless to say, the crystalizing of conservative opposition into a more organized movement is not a good sign for the Miers nomination.


I am now hearing that although the web site is up already, the official public announcement may not come until tomorrow.

McNulty Gets the Nod at DOJ: Paul McNulty, currently the U.S. Attorney for the Eastern District of Virginia, has been nominated to be the next Deputy Attorney General. The Deputy AG is the #2 person at DOJ, and has responsibility for the day-to-day operations of the Department. The Associated Press has the story here.
Ideology and Supreme Court Voting Patterns: Lawprof Ward Farnsworth has a fascinating article in the October 2005 issue of the Michigan Law Review about the voting patterns of Supreme Court Justices. A draft The final version of the article is available here: Signatures of Ideology: The Case of the Supreme Court's Criminal Docket.

  The article studies voting patterns of individual Justices in nonunanimous cases from the Supreme Court's criminal docket over the last 50 years. The study compares what in theory should be apples and oranges: the rate a Justice voted for the government in constitutional cases and the rate a Justice voted for the government in nonconstitutional cases. Farnsworth's hypothesis, in a nutshell, is that a very high correlation between a Justice's voting pattern in constitutional and statutory cases suggests that ideology is driving decisionmaking. If votes are being cast by applying principled interpretive methods, such as originalism, textualism, etc., there shouldn't be much of a correlation between the two rates for a particular Justice.

  The key finding of the study, as demonstrated in charts in the first few pages of the paper: a very high correlation between voting patterns in constitutional and nonconstitutional cases for almost all of the Justices. As Farnsworth summarizes, "knowing how often a Justice votes for the government in the constitutional cases gives us a very strong sense of how often he votes that way in the cases not involving the Constitution."

  What do these results say about how Justices decide cases? Farnsworth, a former Supreme Court law clerk, offers the following take:
  [T]he point isn't that the decisions are "all politics," or that the Justices always vote their policy preferences. We must remember that these cases we are studying are the non-unanimous ones, and that there are others where the left-most and right-most Justices agree. The better interpretation is that every case provokes competition between a Justice's preferences on the one hand and the legal materials on the other. When the legal materials are very strong, they can produce unanimity despite conflicting preferences. But when the legal materials aren't so strong—when they don't point to a clear answer, and leave room for discretionary judgment—the competition is won by the Justice’s underlying preferences and views of the world. Those views of the world are the same regardless of what provision is at stake in a case; that is why there is so much convergence between the results in cases involving different sources of law. Whether a statute or rule or the Constitution is involved, the important question is simply how clearly the Justices think the source of law speaks to the case.
  This is a very interesting and provocative paper. It seems to me that there are some plausible ways in which Justices could be quite principled and still have a high correlation between their votes in constitutional and nonconstitutional cases. Still, this is a very interesting paper, much worth reading. And as an added bonus, the whole thing is only 35 pages long.
Brooks on Bush and Bartlett:

David Brooks has sympathy for Bruce Bartlett, "a man of immense intellectual integrity." Brooks begins his latest NYT column (only available on Times Select) observing:

In an era when many commentators write whatever will affirm the prejudices of their own team, Bartlett follows his conscience and has paid a price. He was fired by his conservative think tank for being critical of President Bush.
But Brooks' sympathy only goes so far, as he rejects Bartlett's charge that Bush has betrayed conservativism. According to Brooks, "Bush hasn't abandoned conservatism; he's modernized and saved it." As Brooks tells the story, "conservatism was adrift and bereft of ideas" until President Bush came along.
Almost single-handedly, Bush reconnected with the positive and idealistic instincts of middle-class Americans. He did it by recasting conservatism more significantly than anyone had since Ronald Reagan. He rejected the prejudice that the private sector is good and the public sector is bad, and he tried to use government to encourage responsible citizenship and community service. He sought to mobilize government so the children of prisoners can build their lives, so parents can get data to measure their school's performance, so millions of AIDS victims in Africa can live another day, so people around the world can dream of freedom.

"Government should help people improve their lives, not run their lives," Bush said. This is not the Government-Is-the-Problem philosophy of the mid-'90s, but the philosophy of a governing majority party in a country where people look to government to play a positive but not overbearing role in their lives.

I agree with Brooks that President Bush never embraced a limited government agenda, but I think it is a bit much to suggest Bush has "recast" conservatism and, as Brooks goes on to suggest, laid the predicate for a new governing majority. I would further suggest that the Administration's repeated embrace of big government policies, from new entitlements and No Child Left Behind to the explosion in federal spending and campaign finance "reform," has more to do with political opportunism than a coherent governing philosophy, "conservative" or otherwise. The question for conservatives is: At what point do such actions outweigh whatever commitments to conservative policies the Bush Administration can still be expected to keep. For Bruce Bartlett that line has been crossed, and I am not far behind.

Related Posts (on one page):

  1. Defending NCPA:
  2. Brooks on Bush and Bartlett:
  3. Tanked for Thinking:

Sunday, October 23, 2005

Tanked for Thinking:

Bruce Bartlett is a well-respected conservative thinker on economic matters. A former Treasury Department official, Bartlett has long been one of the few supply-siders that liberals felt they needed to take seriously. Like many libertarian-leaning conservatives, Bartlett is quite unhappy with the Bush Administration, and wrote a forthcoming book about it: Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy. Bartlett's employer, the Texas-based National Center for Policy Analysis -- a libertarian/conservative think tank -- was not to pleased. So, last week, NCPA dismissed Bartlett, as it did not want to be associated with his book. Although it is not due out until early 2006, you can pre-order Impostor here.

Daniel Drezner has more here and here. Note: After NCPA fired Bartlett, Doubleday moved up the release date for Impostor to February 2006.

Related Posts (on one page):

  1. Defending NCPA:
  2. Brooks on Bush and Bartlett:
  3. Tanked for Thinking:
When Truth Inspires Fiction:

Those who make movies "inspired" by true events often take substantial liberties with the underlying facts. According to John Hinderaker, this is the case with "North Country," a new movie based on the book Class Action, based upon a class action sexual harassment suit filed against a mine in Minnesota. While the movie's heroine is inspired by Anita Hill's testimony against Clarence Thomas to challenge the sexual harassment at her workplace, this is not what happened in real life:

The real Jenson case was filed in 1985, six years before the Clarence Thomas confirmation hearing. So this particular embellishment is pure fiction. Why did the moviemakers throw it in? Why do you think? The Supreme Court is in the news, and Justice Thomas is a hero to conservatives. So the liberals who made North Country went out of their way to slime him, shifting the movie's time line by six years just so they could slander a Republican. No wonder conservatives hate Hollywood.

UPDATE: Some of the comments below make some good points, but I think many protest too much. It seems uncontroverted that the filmmakers injected the Anita Hill-Clarence Thomas controversy into North Country, suggesting it had a role in the events the film depicts, even though any such implication would be false. It was certainly reasonable for the filmmakers to condense the history to make the film, but this cannot not explain the Hill reference. On the other hand, the filmmakers' political leanings can.

I think this is a good example of how filmmakers’ politics creep into movies, and because the vast majority of filmmakers these days are liberal, most such references are liberal. The point is not that there is some vast left-wing conspiracy of writers and producers looking for ways to advance a leftist agenda -- I don't believe any such conspiracy exists, and I doubt Hinderaker does either. Nonetheless, there is a regular stream of politically charged references in movies and television, the vast majority of which tilt in the same direction. One of my favorite examples is Lethal Weapon, in which police station billboards are curiously adorned with numerous animal rights posters. (In a university dorm this would be one thing, but a police station?!?) In other instances, the political storylines are far less subtle, as The Constant Gardener. A screenwriter friend has told me many stories of how politically charged non-sequiturs have been put in his scripts by producers and directors.

In the present case, it seems clear that someone thought it would add something to the story line to have the heroine inspired by Anita Hill – not because it happened, but because it conformed with the filmmakers' sense of how things could or should have happened. From what I understand, North Country tells a powerful and inspiring story –- and the filmmakers sought to connect this story to Hill, even if it meant adding one more bit of fiction to an already fictionalized account of a true story.

I agree with several commenters that it would be absurd if Hinderaker were implying that the Anita Hill reference was inspired by the Harriett Miers nomination. Perhaps I am being too charitable, but this is not how I read the Hinderaker quote. The Supreme Court, and judicial nominations, have been a hot political issue for the past several years. The nomination of Supreme Court justices was a major issue in the 2000, 2002, and 2004 elections, and I seem to recall the Supreme Court has done some other things that sparked controversy in the past five years as well.

Brazil Gun Prohibition Referendum:

Brazilian voters today will decide whether to prohibit the commercial sale or manufacture of all firearms and ammunition, except for police and military use. Polling stations, which use computer voting, close at 5 p.m. First results are expected around 8 p.m., and final results around midnight. Brazil's President Lula has strongly supported gun prohibition, and pushed it through the legislature, only to have the Brazilian Supreme Court declare the prohibition unconstitutional. Lula has also proposed a United Nations tax on ammunition to pay for "development" (that is, a UN-sponsored transfer of money to corrupt governments such as his).

Various polls showed the referendum with as high as 76-83% approval months ago. But a superb campaign, lead by “Vote Não” has educated the public about the dangers of gun prohibition--including the fact that citizens would be defenseless against criminals (who will keep their guns no matter what the law says) and against totalitarian government.

The latest polls show the referndum failing by a 10-18% margin, and Lula is now distancing himself from the referendum.

The referendum was strongly supported by the international gun prohibition movement, which mobilized scores of celebrities and other notables to campaign for the referendum. The prohibitionists made no secret of their plan to use Brazil as a springboard for prohibition in other countries--starting with the rest of Latin America, and South Africa.

Even with a "Não" vote, Brazil's gun laws will remain extremely repressive, as they are deliberately designed to make gun licensing unaffordable to poor people.

Still, a victory for self-defense and civil liberties advocates in Brazil would be a stunning repudiation of the international gun prohibition movement. Although the Brazilian vote has received only a little attention in the United States, its long-term significance for the survival of the Second Amendment is enormous. It would be difficult, and perhaps impossible, for a robust Second Amendment to survive in the United States if the prohibition movement achieved its goals in the rest of the world.

A law student or other scholar who can read Portuguese could write a very interesting and important article on the subject of Brazilian gun laws and the recent campaign for prohibition.

UPDATE: With 71% of polling places reporting, the "Não" votes are ahead 65%-35%. If no vote stays over 60%--a landslide--the damage to the international gun prohibition movement will be especially severe.

The overwhelming public rejection of disarming innocent citizens may be playing an important role in the development of rights consciousness in Brazil. Consider this comment from an American working for a Brazlian gun prohibition group:

“Their whole campaign (against the ban) was imported from the United States. They just translated a lot of material from the NRA. Now, a lot of Brazilians are insisting on their right to bear arms, they don’t even have a pseudo right to bear arms. It’s not in their Constitution,” said Jessica Galeria, an American who researches gun violence with the Viva Rio think tank.
It's true that Brazil--unlike the United States, Guatemala, or Mexico--does not have an explicit constitutional right to arms. But various provisions of the Brazilian Constitution imply the right to possess the means to defend oneself. For example, Article 5, section 11 states:

the home is the inviolable asylum of the individual, and no one may enter it without the dweller's consent, save in the case of "flagrante delicto" or disaster, or to give help, or, during the day, by court order;

Note that the above provision is limited not limited to "state action." The right to exclude burglars from the home is just as strong as the right to exclude rogue police.

More generally, the Universal Declaration of Human Rights recognizes a right to forcibly resist tyranny (a purpose of arms-bearing which was repeatedly stated in the "Vote Não" campaign).

And the natural right of self-defense is one of the foundations of the Western and Catholic traditions of natural law--recognized by Thomas Aquinas and by the current Catechism of the Catholic Church (see, e.g., sections 2263-65). Surely the long Catholic tradition of the legitimacy of forcible self-defense is of some relevance in the rights-consciousness of an overwhelmingly Catholic nation. (I realize, of course, that Brazilian Bishops urged a "yes" vote on the referendum; the majority of the laity obviously disagreed with them, as the laity has every right to do, according to Catholic doctrine, in prudential matters of public affairs). Perhaps the referendum will encourage a future Brazilian government to recognize the obviously strong respect that Brazilians have for the right of self-defense, and to amend the Constitution to provide more explicit protections against the invasions of natural rights that might be attempted should a Lula-type ruler gain power some day in the future.

MORE UPDATE: With 75% of the vote counted, Reuters has called the election for "Não," and the prohibitionists have conceded.

ANOTHER UPDATE: With 92% of the vote in, the results are 64% to 36%. For those of you who read Portugeuse, two articles I've written, which have been translated into Portuguese, are available here.

The Rehnquist Legacy:

Tim Sandefur dissects it in Liberty Magazine.

Pejman Cheques DeLong:

In response to Brad DeLong's endorsement of Harriett Miers' confirmation, Pejman Yousefsadeh wonders "Why Oh Why Oh Why Oh Why Must Berkeley Economists Try To Play Constitutional Scholars?"

UPDATE: Brad DeLong engages another critic here.

Go Stillers:

Claire and I are getting ready for the Bengals this weekend.