Thursday, July 28, 2005

Posner On Boalt

Richard Posner has a reputation for maintaining controversial positions (baby trading anyone?), but this (at 10) caught me off guard:
Berkeley is notorious for affirmative action, which is probably what is responsible for its unimpressive showing in column 3, and I would predict that the result would be a distinct dumbing down of the teaching there.
Though no one ever seriously considered Posner a viable option for a Sup. Ct. appointment, it would have been interesting to see him defend this position during confirmation hearings.

Shuttle Tracking

Want to keep track of the shuttle and the space station? Link

It's absolutely amazing how people are integrating data with Google Maps.

Monday, July 25, 2005

SCOTUS Clerks Causing Fractured Decisions?

Michael Barone writes (and Glenn Reynolds agrees),
Some time ago I took a look at the statistics in the annual Harvard Law Review issue on the Supreme Court, and found that each time there was an increase in the number of Supreme Court law clerks there was also a step increase in the number of separate concurring and dissenting opinions. . . .

My radical proposal, which I am sure will never be adopted, is: reduce the number of Supreme Court law clerks to one or two. My expected result, were this ever to be done: many fewer separate opinions and clearer, more straightforward opinions that intelligent citizens could easily read in full.
I'm inclined to think this is a correlation rather than causation. My guess would be that the upswing in separate concurring and dissenting opinions is due to ideological fractures within the court. Not only is there a divide between conservatives and liberals, but there exists core ideological divides amongst the conservatives. For example, Rehnquist and Scalia often vote similarly, but certainly they reach their conclusions through different processes. The recent past has seen a greater emphasis on the process rather than the result.

Friday, July 22, 2005

Scalia Bobblehead

Woohoo! I got my Scalia bobblehead certificate in the mail today. Now I just have to make a trip to D.C.

Thursday, July 21, 2005

E.J. Dionne on Roberts (and Scalia)

Confirming the writer's fear in the post below, E.J. Dionne writes,
Judge John G. Roberts could turn out to be Antonin Scalia with a Washington Establishment smile. He is almost certainly a William Rehnquist for the 21st century. And he is David Souter turned on his head -- a stealth candidate whose winning personality disguises intense conservatism, not moderation.

Roberts was, in short, the shrewdest choice President Bush could have made to fill retiring Justice Sandra Day O'Connor's Supreme Court seat. Roberts could move the court well to the right yet grin his way through the confirmation process. His advertising slogan might be: Staunchly on the Right. But With No Hard Edges.
It feels as though Dionne's columns are written solely for the left, denying even the existence of the center and right.
Many of us would welcome the chance to have Scalia as a professor. But outside the ranks of the right wing, few Americans want their country defined consistently by Scalia's choices.
Few Americans? It would do the WaPo columnists good to step outside their bubble.

Wednesday, July 20, 2005

Liberals Worst Nightmare?

Via Southern Appeal. Here's a true "insider" view on Judge Roberts.
Over the past several years, I have feared this day, the day that a “movement conservative” President—one who sees Scalia and Thomas as his model justices—nominates a replacement for the Court’s comparatively moderate centrist, Justice O’Connor. But as I saw Judge John Roberts striding alongside the President on the way to the podium Tuesday night, I actually felt a sense of . . . excitement.

Why? Twelve years ago, I was fortunate enough to be a summer associate at the Washington, D.C. law firm of Hogan & Hartson. Our summer class consisted of about 35 second-year law students from around the country. It was an extremely capable group, and I often felt like I did not belong.

Each of us was assigned an official 'mentor' for the summer, a Hogan lawyer who would review our portfolio of memos, consult with the lawyers for whom we had worked, and generally oversee our progress toward gaining a permanent offer from the firm. John Roberts was my summer mentor.

Of course, this was a bit intimidating. Roberts was the former deputy solicitor general, a man who had been nominated for the D.C. Circuit (but who had not been confirmed), and who now was back in private practice. He was the head of one of the most prestigious appellate law practices in the country. Yet, he could not have been nicer, more gracious, more encouraging. He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job.

After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review. It was a rather presumptuous and self-righteous critique of the Supreme Court’s decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia. I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies. As deputy solicitor general in the first Bush Administration, Roberts had actually argued the Freeman case as amicus in support of the school district. I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong.

A few weeks later, I received a two-page letter in response. Roberts wrote that the note was well researched and well written. (I was thrilled at the time, but I would now strongly disagree.) But he also offered a thoughtful critique of my analysis that was several paragraphs in length. This was more feedback than I had received from my professors in law school.

So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency.

All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive’s worst case scenario.

So all of this leaves me quite conflicted. I am proud that a citizen of John Roberts’s ability and character has been honored by our President in a way that, in a sense, he so richly deserves. But at the same time, I harbor some deep reservations. It is unclear that a great person with impeccable credentials should, for those reasons alone, be seated on the Supreme Court. If he holds a very constrained view of the role of government in modern society, or of the fundamental liberties protected by the Constitution, his confirmation could turn out quite badly for the country.

No matter how much I admire him.

Tuesday, July 19, 2005

Google Maps As Evidence

Here's a nice story of how some guy used Google Maps to get himself out of a traffic ticket.

Thursday, July 14, 2005

Developments in CIA Leak Case

The NYTimes reports,
Karl Rove, the White House senior adviser, spoke with the columnist Robert D. Novak as he was preparing an article in July 2003 that identified a C.I.A. officer who was undercover, someone who has been officially briefed on the matter said Thursday.

Mr. Rove has told investigators that he learned from the columnist the name of the C.I.A. officer, who was referred to by her maiden name, Valerie Plame, and the circumstances in which her husband, former Ambassador Joseph C. Wilson IV, traveled to Africa to investigate possible uranium sales to Iraq, the person said.

After hearing Mr. Novak's account, the person who has been briefed on the matter said, Mr. Rove told the columnist: 'I heard that, too.'

The previously undisclosed telephone conversation, which took place on July 8, 2003, was initiated by Mr. Novak, the person who has been briefed on the matter said.

Six days later, Mr. Novak's syndicated column reported that two senior administration officials had told him that Mr. Wilson's 'wife had suggested sending him' to Africa. That column was the first instance in which Ms. Wilson was publicly identified as a C.I.A. operative. The column provoked angry demands for an investigation into who disclosed Ms. Wilson's name to Mr. Novak.

Tuesday, July 12, 2005

What's Judith Still Doing in Jail?

Has anyone asked this question? Perhaps I'm getting something mixed up here. The story apparently is that Rove was the person that leaked the name/identity of Valerie Plame. He released Matthew Cooper and, according to his lawyer, every other reporter involved from their confidentiality agreement. SOOOOOOOOOO, what is Judith Miller still doing in jail? If Rove were her only informant (if he was one at all), she would presumably be released to testify. So what's the deal?

Who Does Number Two Work For?

No doubt that you've heard the story a thousand times by now. The Stanford Law Class of '52 was graced by not one but two future Supreme Court justices, who just happened to finish 1st and 3rd in the class. The problem with this story? According to Jack Hubbard of the Stanford News Service, the Standford class of '52 was never even ranked. The Arizona Republic reports,
Over the years, several names surfaced(JMoore: Referring to who was number 2). One man even was declared to be second by the New York Times. But after scanning news wires and newspaper morgues and having no luck finding a definitive answer, I contacted the university, where I was told by Jack Hubbard of the Stanford News Service, 'There is no No. 2.'

Did Hubbard mean that No. 2 had passed away? I wondered.

'No,' he said. 'To the best of our knowledge there weren't any rankings in 1952. I've been asked where this came from, and the answer is: I don't know.'
What's interesting is that I recall Rehnquist himself referring to this story. Sorry, no link, but it's on C-SPAN so feel free to look it up.

A Kelo Amendment

Here's a great question. How would you word an amendment that clarifies the Fifth Amendment to literally mean "public use"? Of course you wouldn't say, "We really really mean 'public use.'" Tom Bell at Agoraphilia tackles this one.
When I first approached this problem, some months ago, I put it this way: "[T]he Fifth Amendment's 'public use' requirement means that government officials must actually turn taken property into a public park, a public highway, a government office, or similar facility dedicated to public purposes." Putting that idea into solid legal language proves tricky, though. To close loopholes such as the one I described above, I think we need to resort to some legalese. I thus offer a Kelo Amendment invoking the common law definition of an interest in property, a notion sufficiently broad to cover ownership in fee simple and a leasehold estate (among other forms of ownership):

Amendment XXVIII: No taking of private property shall qualify as "for public use" under Amendment V if another private party obtains an interest in the property within twenty years of its taking.
How about:
Amendment XXVIII: No taking of private property shall qualify as "for public use" under Amendment V if another private party obtains an interest in the property within 21 years after some life in being at the time of taking. (Followed by a myriad of exceptions)
No? That aside, I enjoyed his comments on the decision itself.
Kelo, adopting that broad view, essentially upheld the forced transfer of property from one private party to another. (I say "essentially" because the Court makes some largely ineffectual noises about how the takings must advance a "carefully considered" development plan and not evince an intent simply to benefit one private interest at the expense of another.) That violates the original meaning of the Fifth Amendment, the plain meaning of the Fifth Amendment, and sound public policy.
One can argue that original meaning is not the proper guiding principle of constitutional interpretation. Likewise for plain meaning and public policy. But all three? Following precedent, which is the only apparent justification in the majority opinion, is not an end in itself.

Sunday, July 10, 2005

Latest Updates on the Rove Story

Thought it pains me to do so, here's a link to Daily Kos with all the latest updates on whether Rove was the leak. It's certainly an interesting story so far.

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