May 31, 2005
Dissonance ::
weird, politics — No Tags
10:26 pm
So, one thing you have to say about our President, he definitely is sure of himself. Check out this article, covering his press conference from today. In it, find a choice bit of quintessential Bush:
“I don’t worry about anything here in Washington, D.C.,” Bush said…in the White House’s Rose Garden. “I feel comfortable in my role as the president, and my role…is to push for reform.” With Democrats and Republicans alike questioning the clout of a president whose approval ratings have sunk to new lows, Bush said it is Congress that must prove it is “capable of getting anything done.”
Of course! I should have known that Congress was behind all of this gridlock. I’m really glad he was able to set everyone straight. After all, Bush has done everything he could to work with Congress to develop a body of policies that help all Americans. And in return, Congress has done nothing but whine, complain, and drag its collective feet.
But wait? What’s that other story I see on the same website? What does it say?
In recent meetings, House Republicans have discussed putting more pressure on the White House to move beyond Social Security and talk up different issues, such as health care and tax reform, according to Republican officials who asked not to be named to avoid angering Bush’s team.
Wow! If fear of anger and punishment is the only thing keeping Congressional Republicans from straying off message, then maybe Bush isn’t being honest with himself over the amount of political sway he currently maintains. Oddly, even though the White House is just up the street from Captiol Hill, it seems to occupy a different world. At least Bush’s assertion that he doesn’t “worry about anything here in Washington, D.C.” is consistent with the description of the sentiment on the hill.
But the most unfortunate aspect of these two stories is that the world of the President and the world of Congress are completely different from the one the rest of us occupy. How disappointing.
May 30, 2005
Upcoming ::
meta, narrative, personal — No Tags
10:26 pm
Just one more post about my immediate plans. I start my summer job tomorrow, and will most likely be wrapped up in work for a few days. So I’m not sure when I’ll be able to post. Also, since my job will involve actual legal work, I won’t be talking about it at all on this site. (Better safe than sorry, you know.) Sorry if that breaks anybody’s heart.
Two of My Posts, Combined ::
legal — tagged capital punishment, conlaw, crime, judges, legal and SCOTUS
10:21 pm
No, I didn’t go into hiding again. I was just out of town for a few days, celebrating my sister’s graduation from Cornell. I returned home earlier today, and have spent a good part of the afternoon/evening catching up on news and weblogs.
One post that I found particuarly interesting was this one over at Legal Fiction. First, it goes a little more in depth into the Deck opinion, which I mentioned earlier in passing (I was outside the Supreme Court building when the Court announced the opinion). But more interestingly, Publius addresses Thomas’ dissent in that case. Publius asserts that
[t]o Thomas, the act in question (shackling) only violates the 14th Amendment if there is a “deeply rooted legal principle that bars the practice.” [The subtext of this test is Roe, which is also a due process case and was clearly not based on a “deeply rooted legal principle.”] In Deck, Thomas found that there was no such deeply rooted legal principle and thus no constitutional violation. The problem with his analysis, though, is that it seems a lot more like result-driven advocacy than detached interpretation.
I think this idea also relates to my (glib, in retrospect) comment on Janice Rodgers Brown last week. So there does seem to be some smoke and mirrors when it comes to associating conservative judicial philosophy to strict interpretation of Constitutional law. So what I’m curious about, then, is how we might go about disassociating the two dynamics.
May 26, 2005
Crazy Rain ::
rant, personal — No Tags
9:27 pm
The weather report for Bethel over at NOAA shows a forecast that sounds more like “The Long Rain” by Ray Bradbury than it does Vermont in Spring. See here:
At some point this weather has to change, right?
Janice Rogers Brown, Moon Resident ::
legal — tagged judges, legal and tech
11:42 am
So, now that the Priscilla Owen appointment is over with, I suppose it’s time for the Senate to move on to the other activist judge nominees. I have little familiarity with the judicial philosophy of Judge Pryor; however, I did get the opportunity to read a dissent by Justice Brown while researching a paper last semseter. In Intel v. Hamidi, a majority of the California Supreme Court justices found that Intel could not sue a former employee for sending email disparaging the company to current employees. In its opinion, the Court declined to extend the law of trespass—universally limited to physical trespass and physical harm—to the cyberspace realm. Justice Brown, however, disagreed. In her dissent is this tasty morsel of up-is-downism:
Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today’s decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.
Such a thinly veiled ideological stance masquerading as a clear statement of fact is quite disturbing. But then, I can understand why Justice Brown would be so appealing to the Bush administration.
For those hungering for legal citations, the above quote can be found at Intel v. Hamidi, 71 P.3d 296, 325 (2003). FindLaw has a PDF of the opinion as well.
May 25, 2005
More on Medellin ::
legal — tagged civil rights, conlaw, legal and SCOTUS
10:55 am
I noted yesterday the Medellin case that the Supreme Court handed down on Monday. Jurist Paperchase has more on the ruling, and notes that supporters of the International Court of Justice are heartened by the decision. Of particular interest:
The [Supreme] Court dismissed the case after the International Court of Justice had ordered new hearings for Mexican nationals sentenced to death in the US without the benefit of consular assistance because the Bush administration said it would have state courts “give effect” to the ICJ ruling. The ICJ had ordered the new hearings because local police had neglected to inform the defendants of their rights to seek help from the Mexican consulate, a violation of the Vienna Convention on Consular Relations.
This bolstering of International legal bodies from the Bush Administration is surprising, isn’t it? I have to admit I don’t know enough about the case at this point, so I’m curious as to why they were so inspired to intervene in this case. Maybe I’ll try to research more in all my current free time…
Geof Stone on the Filibuster ::
legal — tagged judges, legal and politics
9:33 am
One of my more favorite Constitutional thinkers, Geoffrey Stone, has an interesting post on the Filibuster deal struck yesterday. In it, he nails the main shortcoming of the deal, which is the murkiness of the terms. Namely, what was meant by the term “extraordinary circumstances?”
But who gets to define “extraordinary”? Would a Democratic filibuster of the four pending (I would say “outstanding” but that would be wrong) “outside the mainstream” Bush nominees be acceptable under the May 23 agreement? Or would the Republicans consider this a breach of contract? My guess is that the Democrats would have a very hard time filibustering these four nominees without opening themselves up to the charge (fair or not) that they were violating the agreement.
I think this is a great point, and a weakness in the deal that the Democrats will have to contend throughout the coming confirmation process. Though it does appear—to me, at least—that the moderate political tendencies of those involved with the deal gives the term “extraordinary” some more teeth than we might otherwise expect.
May 24, 2005
More Filibuster Reaction ::
legal — tagged judges, legal and politics
6:14 pm
The New Republic has a great reaction to the Filibuster Deal. Even if you disagree, you have to love it for passages like this:
Thanks to the “finest traditions of the Senate” (Robert Byrd’s words yesterday), there’s a new agreement under which, presumably, only the certifiably insane can possibly be blocked—or, to put it as the senators did, nominees can “only be filibustered under extraordinary circumstances.” That way, if Bush’s pick for a judgeship finally goes too far even for Republicans—if he nominates, say, an Irish setter who, during confirmation hearings, runs up and bites Orrin Hatch in the leg, then Democrats will be allowed to play the bad guys and employ their filibuster. Otherwise, they’d better hold off, since, if they don’t, Republicans might have to take the filibuster away for real.
Lessig Gets Introspective ::
tech, legal — No Tags
5:38 pm
This post will most likely betray how far behind I am in following what’s been happening on the Web. But Lawrence Lessig has an interesting analysis of a talk he gave in Norway recently. What’s so interesting, you might ask? The talk was was a flop. Besides not connecting with his audience, I think he summed up the substantive problem he was having quite well:
But the danger of the culture of [Creative Rights] economies is the inability to see the limits to their own approach. Like the extremist from an [Exclusive Rights] economy, and an extremist from the [Free of Exclusive Rights] economy, the extremist from the [Creative Rights] economy sees what they’ve done as good, and assume more of a good thing is better.
It’s really an interesting discussion. Also, worth reading even if you’re not interested in tech law, because I think he does a good job of dealing with failure. To paraphrase my fortune cookie from lunch the other day: failure gives you the opportunity to start again with knowledge of what doesn’t work.
Trip, Updated ::
travel — tagged SCOTUS, travel and washington dc
10:55 am
In addition to the post below, I wanted to send an update on my trip. Sarah and I went to downtown Washington for some tourist-y stops. First, was the Supreme Court. Although we didn’t get in to hear the opinions released, we did spend some time in line, which gave us an interesting idea of the dynamics of the Court. There were, of course, the pro life demonstrators, the student group, and the press; someone also decided—not sure if it was security or Justice Rehnquist—that only the first 20-30 people were going to get in to hear arguments. Which makes a little sense, I suppose: at this point in the term when the Court wants to announce opinions and get on with their day, allowing 45 middle and high school kids in to the courtroom would probably cause an unreasonable delay.
[Side note, for legal buffs: luckily, the opinions released yesterday were pretty dull. Though there was a development in the Medellin case, which SCOTUSBlog covers effectively. There was also an opinion on shackling capital murder defendants during the sentencing phase of their trial. Seven Justices said you can’t do it, while two (Thomas and Scalia) would have decided that such an action was constitutionally acceptable.]
After that, we went to the National Gallery (mostly by accident), where we saw an albino squirrel and a really imressive rotunda. Then to the National Archives, through the sculpture garden, onto the Metro, and out to lunch with Rick. I also met Jessamyn there.
Afterward, Jessamyn and strolled around DuPont Circle, got some coffee and played a game of dots. She then headed out to Virginia, and I back home. Overall, quite a nice day. Oh, I forget how easy the Metro makes things.
Photos, for those interested.
Filibuster: In Your Face! ::
legal — tagged judges, legal and politics
10:27 am
After sleeping a little later than expected, I spent a little time reading up on the proposed deal on the so-called nuclear option. At first blush, I’m pretty satisfied with the deal. Although it clearly doesn’t finish the battle over judicial nominations, I think it gives the Democrats and the more moderate Republicans and opportunity to exercise their constitutional responsibilities and not give the President more political power than he deserves.
Sure, many on the left are quite vocal on the extremism of the judges who will now go before the Senate for a full vote. In response to that, I ask that they keep three things in mind. First, when these judges make decisions, they will do so on panels with at least three other judges; sometimes there will be even more if the case is being heard en banc. That being the case, they will not have the power to impose their radical ideology whenever the opportunity arises. Second, these judges will be restrained by precedents set by the Supreme Court and by their own circuit courts. And finally, in cases where the a radically inconsistent case winds up getting through, there is always an opportunity for appeal to the Supreme Court. Now, granted the Supreme Court has a discretionary review, but from my perspective anyway, they are quite active in bringing in cases that are clearly inconsistent with precedent. See, for example, the Newdow case from last year.
The other reason I’m optimistic is that I look beyond this single fight, to the upcoming elections in 2006. First, the Democrats will be strengthened by this deal (assuming it goes through), because they will have gained some polical power by builing a consenses with other members of Congress who do not necessarily agree with them. Second, in so doing, they have effectively undermined the Senate leadership. I think that’s something they can really beat to death next year—the Senate is not in fact run by people who represent the will of the people, but by a group of leaders who represent the will of a small group of extremists who represent the will of extreme social conservatives. I truly wish the Democrats all the best in that coming fight—I know which side I’ll be on.
And finally, my moderate political compass is telling me that we’re definitely headed in the right direction on this. Any deal that has both the left and the right suggests a strong win for the political middle. To paraphrase the Moose, that’s music to my ears indeed.
May 22, 2005
Travelling, Thinking of Foreign Policy ::
travel, politics — No Tags
3:26 pm
[Incidentally, wrote this post en route to Washington. After a 30 minute delay on the tarmack, we got in the air with promises that the pilot would take some “shortcuts” to get us there on time. I have to admit, that made me a little uncomfortable—most people who talk about “shortcuts” usually wind up taking even more time than if they’d stuck to the normal route.
[Update: everything worked out fine. Jessamyn and I arrived at Rick and Sarah’s at exactly the same time.]
I picked up the latest edition of The Atlantic Monthly at the Burlington Airport. In it, there’s a really good article by Robert D. Kaplan (subscription only—sorry) about the coming war (or at the very least intense, protracted diplomatic battle) with China. From Kaplan’s perspective the current mode of diplomacy the Federal Government has been following would simply have no place in such a fight. Specifically because China poses a more significant military and economic challenge to the United States than any of the countries in the middle east. In light of that reality, a more nuanced, “Bismarck-type” approach would be required. Otherwise, a power relationship in which the United States remains the most important ally of the other countries in Asia and the Pacific Rim would be undermined. After making this point, Kaplan takes specific aim and President Bush:
[In Iraq,] George W. Bush lacked the nuance and attendant self restraint of Bismarck, who understood that such a system could endure only so long as one didn’t overwhelm it. THe Bush Administration did just that, of course, in the buildup to the invasion of Iraq, which led France, Germany, Russia, and China, along with a host of lesser powers such as Turkey, Mexico, and Chile, to unite against us.
In contrast to what the Bush Administration and its idealistic foreign policy advisors could afford to do in the Middle East, the United States will have to take a more moderate, pragmatic approach when dealing with China. As one military officer in the article noted, Pacific Command’s objective should be “military multilateralism on steroids.” This is all because, not only would China have a more signficant military force than any Middle Eastern Countries, but it also has a significant economic power to condend with as well.
Generally, if you ever want some help putting the United States’, radically liberal foreign policy in perspective, I highly recommend any number of Robert Kaplan’s books as a starting point. Specifically, check out Warrior Politics (my review).
May 21, 2005
Off To Washington ::
travel — No Tags
9:03 am
OK, I really should be headed out the door in a couple minutes here. Just wanted to send along one more post before stepping out the door. Maybe I’ll try adding something to this space when I get to my destination this evening?
In the meantime, you may find this post over at Discourse.net interesting. Or maybe you’ll only find it interesting if you find yourself in law school. I know this time of year is a particularly anxious one for me, as I wait for my semester grades to come in. I’m just glad I have a lot of stuff going on in my life at this point, which keeps me distracted from thinking about my professors’ reactions to my exams.
May 20, 2005
Greg: 1, Crisis: 0 ::
narrative — tagged family, narrative and travel
11:41 am
I don’t know how many of you have been following the travel planning process that Jessamyn has discussed on her site. For those of you who haven’t, here’s the rundown: Jessamyn is currently in Pittsburgh, PA, doing a library talk. (In fact, she may be presenting as I write this.) Tomorrow, she will get on a bus for Washington, DC. Tomorrow afternoon, I will get on a plane in Burlington, VT, and fly down to Washington to meet her. While there, we will be spending some time with friends. We’ll then come back next week. I’ll be in town for all of a day and a half before leaving town again for my sister’s graduation from Cornell University.
And here’s where things get bad. I took Jessamyn to the airport yesterday (again, up in Burlington). When I got back to Bethel, I noticed a grinding noise coming from the rear wheel of my ‘94 Honda Accord. I’ve owned the car long enough to know what that noise meant: seized up caliper, worn down brake pads, and a damaged rotor. I was going to have to get work done on my car before I took it on the 6+ hour trip to Ithaca.
Now, for those of you who don’t live in Vermont, there’s something you should know about auto repairs in this state: they can take a really long time. Especially in the Spring, when everyone seems to take their car into the shop to get all the repairs done that have built up over the winter months. For example: when Jessamyn had to get her radiator replaced a few weeks ago, it took two and half weeks just to get an appointment. Then it took another day for the part to get there. So clearly, with my upcoming schedule, I was going to have to try to find someone to do the work, and fast.
Luckily, I was able to find a guy. He’s way out of town, up on a dirt road. He’s also one tough dude. (At least that’s what I could surmise from my rather brief discussion with him). When I dropped my car of with him a couple of hours ago, he said he was going to try to get the work done today; if he couldn’t, he said I could leave the car with him and pick it up when I get back from Washington next week. Needless to say, hearing this made me quite happy indeed.
Of course, I am quite aware that I should temper my effusiveness at this point. There’s still quite a bit of time between now and the time I leave for things to go seriously wrong. But still, I can’t help but feel that—at least in this match—that I have beaten a crisis.
Update: I got my car back! Not only that, but the mechanic actually drove my car to my house. I of course had to give him a ride back to the garage, but still, I really thought that was some pretty great service. With that said, if you ever find yourself in need of automotive repair and you’re in Bethel, Vermont, I highly recommend the fine mechanics at North Road Auto & Tire.
May 19, 2005
What Are the Judges Thinking? ::
legal — tagged judges, legal and politics
5:36 pm
I’ve been following with only passing interest the latest Senate fight over the appointments of Janice Rodgers Brown (to the Washington, D.C. Court of Appeals) and Priscilla Owen (to the Fifth Circuit). I fully agree with the Bull Moose that this latest row has taken petty partisan fighting to a new extreme. However, I also wonder what Justices Brown and Owen are thinking as they continue to stay in the running for the appointment. While I think I can conceptualize the high honor of being a presidential appointee for any position, at some point that honor must be outweighed by concern for the larger system of government. Especially with this latest round of political battle, I think we’ve reached that point.
If I were in either Brown’s or Owens’ shoes (and I am quite aware that I am not), I would tell the President the following. I would say, “Mr. President, while I am deeply honored that you chose me twice to sit on the federal Court of Appeals, the fight that has resulted from this decision has become too protracted, and threatens to further sully the independence of Article III Courts. Therefore, in the interest of preserving the system, I respectfully withdraw my name.”
That neither of these appointees have done this is disappointing. It also shows that all judges—even the very conservative ones—are more wrapped up in the political process than they would be willing to admit.
