Patterico's Pontifications

7/28/2005

But Who Will Guard the Gatekeepers?

Filed under: Blogging Matters — Patterico @ 10:09 pm

It’s inside blogball, to be sure, but Gerard Van Der Leun has a good piece on gatekeepers in the blogosphere (Instapundit being the prime example).

Judges on Soapboxes

Filed under: Civil Liberties,Constitutional Law,Judiciary,Terrorism — Patterico @ 9:23 pm

I’ve had it with judges on soapboxes. Let me belatedly express agreement with Dafydd ab Hugh in his discussion of the sentence given the Millennium Bomber.

Until the judge opened his mouth, I believe that it would have been possible to remain agnostic on whether the sentence was proper. Yes: 22 years for what he planned to do is clearly inadequate. But cooperation on terrorism can be important, and the guy did provide cooperation for a period of time. Most of us commenting on his sentence don’t really know what he might have helped prevent. Even given that he stopped cooperating at some point, the cooperation he did give is probably worth something.

In the abstract, my kneejerk reaction is that the benefit given should be something like a life sentence rather than a death sentence. But apparently our laws aren’t that tough, and he wasn’t facing that much time.

So, depending on various factors, reasonable minds might differ as to what the appropriate sentence should be.

But it’s hard to trust that the judge got it right when the judge feels the need to get up on his soapbox and give a chest-beating diatribe about how the judicial system works, and we don’t need to do what we’re doing at Gitmo:

I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

I would suggest that the message to the world from today’s sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism.

Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

No, judge. If the terrorists are allowed to go free and kill us, then the terrorists will have won.

I understand pride in our criminal justice system and the rule of law. But, judge, the procedures at Gitmo come within our system of laws. The Administration is proceeding according to the law as determined by the Supreme Court.

So we don’t need your moralizing. You give the impression that you are more interested in grandstanding for the elite media than in protecting our country. And, frankly, that very moralizing causes many of us to question whether your sentence was proper.

Finke’s Unserious Diatribe on Kinsley

Filed under: Dog Trainer — Patterico @ 8:50 pm

According to Nikki Finke, Michael Kinsley was no good because he was too much of a leftist:

[L.A. Times editor John] Carroll, just as East Coast–centric as Kinsley, hired him no doubt because of his national rep. But at what cost? The LAT was hemorrhaging conservative subscribers after that Schwarzenegger sexual-harassment probe was published on the eve of the gubernatorial recall election, yet Carroll only fed that anger with red meat in the person of a legendary lefty.

Also according to Nikki Finke, Michael Kinsley was no good because he wasn’t enough of a leftist:

Carroll also overlooked that Los Angeles has long been ground zero for the progressive movement. It probably never occurred to him that he’d disappoint this constituency by hiring Kinsley. That’s because the one-time New Republic and Slate editor brought to the party an old-school liberal penchant for placing witty banter ahead of serious argument. An example is that recent Kinsley-penned LAT commentary downplaying the significance of the so-called Downing Street Memo concerning the timing of the decision to go to war with Iraq and the Bush administration’s distortion of the related WMD intelligence. He had the arrogance and audacity not just to pooh-pooh the memo’s contents but also to poke fun at the progressive movement for pumping up the volume surrounding it. “I don’t buy the fuss. Nevertheless, I am enjoying it, as an encouraging sign of the left’s revival. Developing a paranoid theory and promoting it to the very edge of national respectability takes ideological self-confidence,” Kinsley ridiculed.

Rush Limbaugh couldn’t have been more dismissive.

Although the second quote follows directly on the heels of the first, Finke doesn’t appear to register the contradiction. And the rest of the piece is similarly long on potshots and short on insight.

I didn’t think Kinsley was perfect by any means as editorial and opinion editor. But he pioneered some real innovations at The Times. He deserves better than to be criticized by an unserious piece like this one.

P.S. Finke declares the end of the “Outside the Tent” feature:

One of his few editorial successes, inviting the LAT’s most vocal and more articulate critics to have at the institution they love to hate, proved sadly short-lived.

This is the first I’ve heard of that. I am e-mailing Bob Sipchen to ask whether Finke is right about this.

UPDATE: She’s wrong.

Radley Balko on Jury Nullification

Filed under: Law — Patterico @ 8:11 pm

Radley Balko says of jury nullification: “Not only is this your right as a juror, some would say it’s your obligation.”

And some would say it’s jury misconduct.

In a competent judge’s courtroom, all jurors are asked if they are willing to follow the law, regardless of whether they agree with it. They must answer this question in the affirmative or they cannot sit as jurors. And they must answer this question under oath.

How would you answer that question, Radley Balko? Would you lie under oath to protect what you believe to be your “right” and “obligation” to disregard the law?

UPDATE: I’ll have much more on this in coming days. I see a parallel between nullification and judicial activism. Both are “doing what’s right” at the expense of the law — and as such, both pose a similar peril to the rule of law.

UPDATE x2: In my promised post I will address, among other things, Balko’s statement:

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”

“In fact,” that latter quote is not from a Supreme Court case, but from a case decided by the District of Columbia Circuit Court of Appeals. (U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).) That case contained plenty of warnings concerning the dangers of nullification, and held that juries need not be instructed that they have a power to nullify. The other case, Morissette v. United States, 342 U.S. 246 (1952), does not read to me as an affirmation of juries’ authority to nullify, just a recognition that they have the power to do so (which I don’t dispute). More in my upcoming post, perhaps over the weekend.

UPDATE x3: For those who still don’t get it, let me quote some language from the California Supreme Court:

Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.

We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.

People v. Williams (2001) 25 Cal.4th 441, 463.

Got it?

UPDATE x4: I’ve written Radley to tell him that the 1972 quote is not from a Supreme Court case. Hopefully he will do the right thing and get a correction appended.

In Case Anybody Was Wondering . . .

Filed under: General — Patterico @ 12:28 pm

I am not the Lt. Col. mentioned in this story. Nor he is any relation of mine, as far as I know. (Same goes for Glenn and Amber.)

More One-Sided Coverage of the Documents Non-Issue

Filed under: Dog Trainer,Judiciary — Patterico @ 7:25 am

This morning’s L.A. Times article on the Roberts documents controversy, Struggle Over Access to Roberts’ Memos Intensifies, makes a couple of jaw-dropping assertions. First:

Senate Democrats said they found that assertion [the Bush Administration claim of privilege] unusual, arguing that attorney-client privilege was a legal doctrine covering courts, not Congress.

Really? So if I say something in confidence to my lawyer, Congress can issue a subpoena to my lawyer and force him to disclose it? That’s a new one on me. And what do the legal experts say about that?

We aren’t told. Apparently nobody asked. (Or did they — and just not like the answer?)

Second:

The question of how much access Congress should have to executive branch documents is a long-running debate in legal circles, and there is no consensus on whether attorney-client privilege can be invoked for government lawyers.

Whaddya mean there is “no consensus” as to whether attorney-client privilege can be invoked for government lawyers? Why — because Democrats refuse to recognize longstanding principles of law?

I already linked Beldar’s post on this, but perhaps it’s worth quoting his case law:

Courts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts. . . Although the attorney-client privilege traditionally has been recognized in the context of private attorney-client relationships, the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the [Freedom of Information Act], much as it operates to protect attorney-client communications in the private sector.

Attorney-client privilege can be invoked for government lawyers — period. Yet The Times says there is no “consensus” on that question. If the Democrats deny that the world is round, does that mean there is no “consensus” on the issue?

Again, no expert is consulted on this issue in the Times article. Curious.

And so the one-sided coverage continues . . .

7/27/2005

Roberts Links

Filed under: Judiciary — Patterico @ 12:34 pm

Read this Washington Post article on John Roberts and just try to tell me that this guy isn’t solid. Just try!

Pejman has an excellent piece on the arguments against John Roberts and the reasons that they are unconvincing.

Tell me you’re not frightened by the fact that this whack-job wears a robe. (Via Howard Bashman; annoying registration required.) He doesn’t even mention the relevant Supreme Court precedent. If you are a Rhode Island resident, be very afraid. (UPDATE: Volokh has more.)

UPDATE: I have a post about the New York Times‘s decision to seek the adoption records of John Roberts’s children, here.

L.A. Times Engages in Agenda Journalism at John Roberts’s Expense

Filed under: Dog Trainer,Judiciary — Patterico @ 7:18 am

This morning’s L.A. Times story on John Roberts is pure agenda journalism. The article relates to the Bush Administration’s principled refusal to produce confidential and privileged memoranda from Roberts’s time as a Deputy Solicitor General. The article goes out of its way to portray the assertion of privilege as an unprincipled effort to hide something sinister about Roberts’s views on abortion. And the article completely fails to mention numerous facts that clearly demonstrate the opposite.

The first paragraph frames the issue:

WASHINGTON — The White House opened to the public Tuesday thousands of pages from the files of a young assistant attorney general but declared off-limits all the files from the years when John G. Roberts Jr., now a Supreme Court nominee, was a top government lawyer urging the repeal of the Roe vs. Wade abortion ruling.

The article makes it clear that the Bush Administration must have something to hide:

It is not clear whether Roberts, deputy solicitor general from 1989 to 1993, agreed with the administration’s position in the abortion cases. But the White House, arguing the information is privileged, made it clear Tuesday that it did not want to reveal what he said or wrote during those years.

The evident feelings of the reporters and editors are given voice by PFAW President Ralph Neas: “What are they trying to hide?”

The story does not seek out the opinion of the current Solicitor General, or any former Solicitor General, to see whether they would agree that there are legitimate reasons for the asssertion of privilege. The story does not mention that every living former Solicitor General, including four Democrats, has signed a letter opposing an identical request made by Democrats opposing the nomination of Miguel Estrada. The story does not explain that a wholesale turnover of such memoranda would be entirely unprecedented. The story does not quote a single independent expert who could have corroborated the Bush Administration’s position that they are asserting a legitimate claim of privilege.

The article also falsely states that nobody requested the documents that are being produced:

No one on Capitol Hill had asked for the Reagan-era files. But Senate Democrats said they were interested in what Roberts wrote and said during his four years in the first Bush administration as top deputy to Solicitor Gen. Kenneth W. Starr. Of particular interest is his role in Starr’s attack on Roe vs. Wade.

That first sentence is directly contradicted by a story in Monday’s New York Times:

The Bush administration plans to release documents from Judge John G. Roberts’s tenure in the White House counsel’s office in the mid-1980’s and his earlier job working for the attorney general, but will not make public papers covering the four years he spent as principal deputy solicitor general starting in 1989, two senior administration officials said Monday.

The decision fulfilled a request for disclosure of the documents made on Monday by Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, which will hold the confirmation hearings for Judge Roberts, President Bush’s choice to fill the Supreme Court seat being vacated by Justice Sandra Day O’Connor, said the senator’s spokesman, Bill Reynolds.

Today’s L.A. Times story is hackwork, folks. There is a mountain of evidence that the Bush Administration’s assertion of privilege is legitimate. There is no journalistic reason for not reporting this information. None. Yet the L.A. Times doesn’t breathe a word of it. Instead, the paper does everything but report as fact that John Roberts has something to hide about his views on abortion.

An utterly shameful performance.

UPDATE 7-27-05: One of those former Solicitors General, Walter Dellinger, weighs in today with a surprising about-face: he says that the memos should be released. What’s the alleged difference between Roberts and Estrada? Dellinger says:

Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn’t any federal judgeship but the Supreme Court itself.

Paul at Power Line easily disposes of these arguments:

The first point strikes me as a distinction without a difference. The solicitor general needs as much candor from lawyers appointed by the president as he does from career civil servants. The second point is just another way of saying that this nomination means too damn much to let principle govern its treatment.

One wonders what the other former Solicitors General would say. Too bad The Times didn’t ask them.

UPDATE x2: Actually, Dellinger is being very slippery. He doesn’t actually argue that they should be released — that’s just the impression the reader gets (and is probably supposed to get). He actually argues that they probably will be released:

These factors and the announced release of volumes of earlier memos to the White House counsel — undistinguishable as a matter of law from memos to the solicitor general — suggest that the memos to the latter will be made public as well.

This way, he has (implausible) deniability on the issue of whether he has reversed course, but gives his friends the Democrats some talking points — and takes in those who (like me) didn’t bother to parse his words in a Clintonesque fashion. Verrrry sneaky.

More on the Silly Turley Piece

Filed under: Dog Trainer,Judiciary — Patterico @ 7:17 am

An editor’s note in today’s L.A. Times states:

On Monday’s Op-Ed page, Jonathan Turley, a professor of law at George Washington University, wrote that at a meeting between Supreme Court nominee John G. Roberts Jr. and Sen. Richard Durbin (D-Ill.), Durbin had asked Roberts what he would do if the law required a ruling that conflicted with his Catholic faith.

Roberts responded, according to Turley, that he might have to recuse himself in such cases. Turley said he heard about the conversation from “two people who attended the meeting.”

Tuesday, Durbin’s office said the story was inaccurate.

Aides acknowledged that a question about faith and public policy had been asked, and that Roberts had discussed recusals — but they said that the recusal answer wasn’t in response to the question about faith.

Turley, however, says it was Durbin who gave him the original information in an on-the-record conversation. Turley says he then confirmed the substance of that conversation with another person who had been at the meeting.

Durbin’s office understood that Turley was writing the article and expressed no concern about its accuracy when he explained exactly what he was writing, according to Turley.

He says that he has notes of each of those conversations, and that he stands by what he wrote.

And I stand by what I wrote when I said that Turley’s article was nonsense. I still believe it was based on a lie, which it now appears was told by Durbin. Even if Durbin had accurately recounted the conversation to Turley — which seems highly doubtful — Turley’s op-ed was, in my opinion, silly.

7/26/2005

Bogus Document Controversy Begins

Filed under: Dog Trainer,Judiciary — Patterico @ 6:10 pm

The L.A. Times has published on its web site a story about the White House’s refusal to release privileged documents relating to John Roberts’s time as a Deputy U.S. Solicitor General. The article sets the tone with this paragraph:

The White House today released thousands of pages of documents on Supreme Court nominee John G. Roberts Jr. that nobody on Capitol Hill requested, but declared off limits all materials from the period in Roberts’s government career that would likely be the most revealing about his political views.

The story outrageously portrays this bogus document issue as genuine, by completely ignoring the massive weight of evidence to the contrary. For example, the editors allow this statement by Sen. Ted Kennedy to go completely unchallenged in the article:

“In my 42 years on the Judiciary Committee, we have received many internal Justice Department documents at least as sensitive as these, even for confirmation proceedings that don’t come close to the importance of a Supreme Court appointment,” said Sen. Edward Kennedy (D-Mass.). “There is no privilege, there is no rule, there is no logic that would bar us from getting these documents.”

Disingenuous doesn’t even begin to describe this.

Let’s start with the portion of Kennedy’s statement that holds that there is “no privilege” that would bar the Senate from obtaining memos by a Deputy Solicitor General. Recently, my friend William Dyer concisely demolished an identical claim by Sen. Pat Leahy as “a preposterous and incorrect statement of the law.” Mr. Dyer has the case citations to back up his statement. Mr. Dyer’s total refutation of Leahy’s comment is a conclusive rebuttal to Sen. Kennedy’s identical claim that there is “no privilege” or “rule” that bars the release of internal memos to the Solicitor General.

Equally ridiculous is Sen. Kennedy’s claim that there is “no logic” to the claim that such memos should remain confidential. The reasons to keep such memos confidential were set forth in a February 12, 2003 letter from Alberto Gonzales to Senators Daschle (remember him?) and Leahy, regarding the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. (To read the letter, go here and scroll down, or search for “February 12, 2003″ — the letter is fairly far down the page.) Gonzales’s letter explained:

You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: “Any attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests — a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate’s duty to evaluate Mr. Estrada’s fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process.

Gonzales made it clear that a wholesale disclosure of internal Justice Department memoranda would be wholly unprecedented:

The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada’s nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice’s review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by the Department. In fact, the Department’s review disclosed that the Senate did not even request such materials for a single one of these 67 nominees.

Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph.

Today’s L.A. Times story suggests that a different precedent was set during the confirmation hearings for Robert Bork:

Democrats noted that the Reagan administration provided a number of internal Justice Department documents during nomination proceedings for Robert Bork in 1987, including material from the time he served in the solicitor general’s office.

But Gonzales’s letter regarding Estrada addressed — and convincingly rejected — that exact argument:

The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork’s nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork’s involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received.

None of this information is included in the article. Readers are left with the impression that Democrats are asking for nothing more today than was already provided in the confirmation hearings for Judge Bork. As Gonzales’s letter makes clear, this impression is misleading in the extreme.

With respect to Miguel Estrada, Gonzales suggested numerous alternatives to reviewing confidential internal memoranda, such as: reviewing written briefs and oral arguments; interviewing Estrada’s former supervisors; interviewing those who served alongside Estrada; and examining Estrada’s written performance reviews.

As far as I know, similar avenues are available to Senators who wish to examine John Roberts’s record.

Not that the L.A. Times mentions that, either.

I am assuming that today’s L.A. Times story on this issue is just a hasty first draft. Surely the version that runs in tomorrow’s paper will present some of the arguments I just went through.

Am I being too naive?

I guess we’ll see.

UPDATE: Mr. Dyer has more here on the documents issue generally. He is proving to be a valuable voice in this confirmation fight, as he was in the 2004 presidential election. It’s good to see him actively blogging again.

UPDATE x2: See the UPDATE to this post for a surprising about-face by Walter Dellinger, and a refutation of his arguments.

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