Patterico's Pontifications


My Advice: Jerk It Harder!

Filed under: Judiciary — Patterico @ 1:12 pm

After the Washington Post said yesterday that Democrats weren’t that interested in fighting John Roberts, the interest groups blew a gasket. Guess what? Pat Leahy has now issued a deceptive statement decrying Roberts.

I like the way the Center for Individual Freedom puts it in a press release:

Liberal Groups Jerk the Leash, Senate Democrats Respond with Attacks

Woof, Pat. Woof.

36 Responses to “My Advice: Jerk It Harder!”

  1. I have Yahoo as my home page. They have a box with news headlines. There are usually about 6 to 8 headlines, updated every 3 hours or so. There is a “Roberts” headline all the time. The “Roberts headline” is always derogatory. “Congress questions Roberts Civil Rights stand.” “Questions arise about Roberts adoptions”. “Many have doubts about Roberts commitment to Affirmative Action”, etc. And this morning the Leahy lie.

    If this was my only access to the news, I’d come away believing that John Roberts was a Mafia Godfather being prosecuted by Justice Dept., with new revelations of his criminal activities coming out every day.

    Lew Clark (4364be)

  2. I’m crossing the party line on this one.

    The Democratic party has a set of core interests, somewhere. The PACs, effective fundraisers as they are, seem hellbent on ensuring that it is never unearthed.

    Hillary is tough because she has politics in her bones, and can stake out a platform, pick her battles. In contrast, the Democratic base doesn’t have the discipline or infrastructure to stay on a functional message, and the Dem old guard seems almost dotteringly distracted from their supposed principles.

    Roberts WILL be confirmed, and rightfully so, while the Dem squander any potential for credibility on one dog and pony show after another.

    Hey, fiery rhetoric is a staple of politics. But a shred of justification helps.

    biwah (f5ca22)

  3. Senator Leahy calls Judge Roberts names, no one cares

    From Yahoo News:
    Sen. Patrick Leahy says Supreme Court nominee John Roberts holds “radical” views and has been an “eager, aggressive advocate” for policies of the far right.
    While stopping short of announcing his opposition t…

    The Unalienable Right (7a057a)

  4. I was freaked out by the documents where Roberts decries the exclusionary rule.

    But i’m curious to see any work he did for the bob jones shelter-my-bigotry case.

    actus (a5f574)

  5. I haven’t seen his arguments against the Ex.Rule per se, although he argues against suppression in a few cases, obviously. But he was acting as government counsel.

    I don’t like these positions either, but let’s get real: they don’t tell us about what he will decide as a justice. And I don’t think the admin really knows what he will decide either. His record DOES show him not to be an idealogue. Justices can, and practically tend to, switch their views once appointed. I think this could be truest for a litigator who eats nails for breakfast (albeit a polite one), such as Roberts, who suddenly finds himself surveying both sides of these issues.

    Speaking of politeness, civility is going to be important as well, if we are going to get out of the new tradition of incomprehensible 5-4 decisions with 19 concurrences every time.

    Sure, the admin should release the docs. Sure, those docs will raise more questions (though inconclusively). But politically, this is warmed over Chicken-Little stuff.

    The savvy move would be to confirm Roberts and let attention stay on where it belongs: the economic and oil crises and the futility of this war. And, of course, the next nomination. Can’t wait for that one.

    biwah (f5ca22)

  6. Lew Clark: I suggest you start using as your home page.As to theproblem of the pressure groups leading the democratic political leaders around by the nose–The fact that none of the Democratic Senators or members of the House are able to set an agenda is the main problem the Democratic party faces. They are all opportunists without any beliefs except hatred of the U.S., hartred of republicans, hatred of Christians and love of Government. That is why I think the 2008 Democratic Presidential Nominee will be a Governor like Richardson of New Mexico or Warner of Virginia. Actus, Daily Kos, and all the other leftwing nut cases will not be in evidence in setting Warner’s or Richardson’s policies and therefor I believe that either candidate will win. If the left wing fanatics continue to call the shots, The Democrats have no chance.

    john (fb05db)

  7. “They are all opportunists without any beliefs except hatred of the U.S., hartred of republicans, hatred of Christians and love of Government.”

    Um, sure…

    “If the left wing fanatics continue to call the shots, The Democrats have no chance.”

    Maybe, or maybe its simpler. Do the Dems want to impale themselves on their current base’s hardline stance on abortion and guns, without regard for what the voters they NEED (but maybe don’t want) think about these issues…or not?

    don’t answer that.

    biwah (f5ca22)

  8. Actus-

    The exclusionary rule is a very, very radical concept in American law.

    Nowhere else in the world has it. Even the European Court of Human Rights ruled in 2003 (or 04, I forget) that convictions based on illegally seized evidence are totally acceptable.

    Basically, the fact that you’re a criminal shouldn’t be overshadowed by the simple fact that you got busted as the result of someone’s screw up.

    Angry Clam (a7c6b1)

  9. “The exclusionary rule is a very, very radical concept in American law.”

    America is a very radical concept.

    “Basically, the fact that you’re a criminal shouldn’t be overshadowed by the simple fact that you got busted as the result of someone’s screw up.”

    Or someone’s abuse. What 4th amendment do we have if we have no exclusion?

    Also, I’m on to Orrin Kerr’s (of Volokh Conspiracy) argument that we need an exclusionary rule in electronic surveillance law (wiretap act / ECPA / stored communications act) in order to develop a common law / statutory interpretation tradition of these statutes.

    actus (5b2f21)

  10. “What 4th amendment do we have if we have no exclusion?”

    Duh. That one’s easy, man. The criminal would still have exactly the same rights as he would for any other constitutional violation- injunction against further intrusions, and Section 1983 damages in a civil action for the harm done to him (for the invasion of privacy or whatnot).

    It shouldn’t be a get out of jail free card.

    Angry Clam (a7c6b1)

  11. “The criminal would still have exactly the same rights as he would for any other constitutional violation- injunction against further intrusions, and Section 1983 damages in a civil action for the harm done to him (for the invasion of privacy or whatnot)”

    Good luck getting that 1983 past the jury from jail.

    actus (5b2f21)

  12. “It shouldn’t be a get out of jail free card. ”

    Its not. Go find some other evidence on the guy. Oh, and train your cops too.

    actus (5b2f21)

  13. “Good luck getting that 1983 past the jury from jail.”

    Hey, that’s his problem, not ours. Life sucks, get a helmet (or stop committing crimes).

    “Its not. Go find some other evidence on the guy.”

    Sometimes it is. It should never be. The exclusionary rule should be scrapped.

    Angry Clam (a7c6b1)

  14. “Hey, that’s his problem, not ours.”

    Exactly why we have the exclusionary rule.

    actus (5b2f21)

  15. And what I find really interesting about your formulation is that the vindication of one’s fourth amendment rights depends on statute — 1983 — and thus can be taken away by legislation. Odd.

    actus (5b2f21)

  16. No Constitutional provision is self-executing, as far as jurisdiction goes, in federal courts.

    Complaining that using 1983 to vindicate the Fourth Amendment (which is what needs to be, since the vast majority of law enforcement is done by the states) is like complaining that vindication of the First Amendment depends on statute- 1331.

    You’re goddamn right that legislation can take away the vindication of the Fourth (or the First!) by lawsuit in federal court. Congress has plenary power over the jurisdiction of the federal courts.

    Angry Clam (a7c6b1)

  17. “Exactly why we have the exclusionary rule.”

    Because we can’t trust those awful juries, we need a lone judge, accountable only to other judges, to do it…

    Angry Clam (a7c6b1)

  18. For true poetry, you need a circle reference in the post.

    TCO (3c2924)

  19. I’m worried Roberts is gay. The Democrats will find out and then out him to try to intimidate him.

    TCO (3c2924)

  20. Clam: what about the argument for the exclusionary rule as a means of keeping errant cops in check? The only reason there’s any motivation whatsoever to toe the legal line is that the ends presently do not, in fact, justify the means. Imagine the sorts of “compromising” that would have taken place over the last 218 years if this major check were not in place. I submit that this, perhaps, is a huge piece of why our justice system has remained as humane and relatively fair as it is over the years.

    Tom (eb6b88)

  21. “No Constitutional provision is self-executing, as far as jurisdiction goes, in federal courts. ”

    I find it rather odd that you want to take away the only thing that makes the 4th amendment an effective deterent.

    actus (a5f574)

  22. A lawsuit is absolutely inadequate to redress Fourth Amendment violations, and our courts have recognized this for at least 120 years. A lawsuit does not restore the LIBERTY interest to victims of government carelessness, overreaching, and malice, misplace the burden on victims to sue, do not provide the same level of deterrence.

    And on the pragmatic side, giving all prisoners Fourth Amendment causes of action threatens to bankrupt our cities and encourage litigiousness among inmates. Who wouldn’t want to give that motion for 4th A. damages a shot from their prison cell. And public defenders would be doing most of them. Unless…don’t tell me…we’re just going to let private attorneys “self-regulate” and take contingency cases as a sort of free-market check on the kind of police misconduct which is already the status quo? Totally out of whack.

    It’s easy to oppose enforcement of defendants’ rights against the government in a knee-jerk manner, but this one would have so many adverse consequences and be so lopsided and unjust, it might do some good to think about it beforehand…as the courts have done. The American policy is that it is better to let the guilty walk than to convict the innocent. It is also sanction government overreaching and misconduct in a way that they can understand – exclusion.

    Mapp v, Ohio is the modern case establishing the Ex. Rule. But before that there was the Weeks decisions (1914): “If letters and private documents can thus be seized and held AND USED IN EVIDENCE against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” (emphasis added)

    And even further back…Boyd (1886): “[The Fourth and Fifth Amendments] apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers TO BE USED AS EVIDENCE to convict him of crime or to forfeit his goods, is within the condemnation . . . [of those Amendments].” (Caps added)

    These decisions go straight to the legitimacy & necessity of exclusion, and the elevation of the rights of the innocent over the imprisonment of the guilty, in the American system.

    biwah (f5ca22)

  23. This all goes for criminal 4th A. violations. Tellingly, in civil 4th A. violations, the remedy is a lawsuit.

    It’s about the stakes in a particular case, and in criminal the stakes are LIBERTY, as in, where will your ass be for the next __ years. That’s an unacceptable price for government shenanigans in our system.

    And, Angry Clam, did I really hear you cite the EUROPEAN COURT OF HUMAN RIGHTS as authority for what we should do in the good ol’ U. S. of A?


    biwah (f5ca22)

  24. I read Leahy’s statement, but I’m still not sure how this got on the subject of the 4th amendment (I’d be grateful for any URLs that shed more light on this), so what follows may be OT, but…

    As far as indemnifying criminals against evidence acquired in violation of the 4th amendment, I think it’s a little too complicated to just be summarily dismissing the charges on grounds of a 4th amendment violation-

    1) Does the alleged crime constitute a threat to national security (esp during times of heightened national threat) – if so, I think it should be fully prosecuted.

    2) If not, I think charges should be dismissed, BUT the accused should go on a hotlist and be monitored by all relevant authorities, i.e. the 4th amendment deflects the first bullet, but the perp better watch his step thereafter.

    This would help prevent both authorities and terrorists from abusing the laws designed to create a society that is both safe and democratic.

    Scott (57c0cc)

  25. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, SHALL NOT BE VIOLATED…”

    Any Textualists in the house?

    [crickets chirping]

    biwah (f5ca22)

  26. Don’t be too quick to congratulate yourself on swinging an “unassailable” argument.

    The word “unreasonable” was put there for a reason, i.e. it is meant to be understood by its present day interpretation, which includes present day events such as threats to national security and which form a context that prevents the wording from being used as a suicide pact.

    Scott (57c0cc)

  27. You might have noticed that I emphasized the prohibitive language against the unreasonable S & S’s themselves. That prohibition does not leave room for a namby-pamby POST-conviction civil remedy. Or maybe I’ve just been brainwashed by a century or two of judicial acitvism…

    As for the bone you have to pick, i.e. definition of “unreasonable,” what passes as “reasonable” has been pried open wider than a dozen Chunnels. Law enforcement has just about any means of getting evidence admitted on national security issues through exigencies, inevitable discovery, and the third-and-a-half branch of government FISA court. Your paranoia that we will hang ourselves with our own individual rights is widely shared, but in this case, unfounded.

    Every time I hear that “suicide pact” line, I instinctively assume “the position”, cuz there’s no doubt about what’s coming next.

    I’ll trade you, line for hackneyed line: How about, “They who would give up an essential liberty for temporary security, deserve neither”…?

    Meanwhile, judges are admitting blatantly false testimony by cops in run-of-the-mill felony cases, every minute of every day, everywhere, under the nice little system we’ve got right now. Congratulate myself? No.

    biwah (f5ca22)

  28. “Meanwhile, judges are admitting blatantly false testimony by cops in run-of-the-mill felony cases”

    Wow – you gave that straw man a thorough beating didn’t you. Go back and read my last post – I said “unreasonable” can be used to lend context to the charges, said context being threats to national security; in other words “run-of-the-mill felony cases” based on wrongfully obtained evidence can (and should) be dismissed under the 4th amendment, and were not what I was referring to.

    As for your “bone picking” statement – how about your “crickets chirping” quip? Will you apply the same standards to those?

    Scott (57c0cc)

  29. My point was that I reserve congratulations for when something has actually been accomplished, and shredding your vague, unworkable, unconstitutional propositions doesn’t count.

    biwah (f5ca22)

  30. biwah – I’d ask you what part of the text of “shall not be violated” demands that the consequence of the violation be the exclusionary rule, but I know that your answer would be non-textual.

    eddie haskell (8fd1a1)

  31. “shredding your vague, unworkable, unconstitutional propositions doesn’t count”

    Reflecting on things you haven’t done amounts to fantasization, which explains a lot.

    Scott (57c0cc)

  32. hi eddie,

    thanks for not asking, but I’m going to go out on a limb anyway and answer with a question.

    What is a prohibition? What does “shall not” mean?

    If I say, “thou shall not steal”, is that consistent with then saying, “but if you happen to steal a gun, you may shoot whoever you like. Just be advised that once we’ve assessed the extent of the victim’s death or injuries, that victim may come to us and ask that we tell your parents what happened.”

    I would humbly submit that I say “thou shall not steal”, and then I catch you stealing, you’re on notice that I will make you give it back.


    Speaking of fantasies, I’d love to hear more about your “hotlist” idea.

    I know it pains you to let a person walk after they violated the Law, but it happens. Where the 4th A. is concerned, it happens when law enforcement acts so egregiously that all the evidence is tainted.

    This country was founded on the assumption that power corrupts, and the empirical knowledge that tyranny results. Thus, the decision was made that nothing is any damn good without freedom – not even safety.

    biwah (f5ca22)

  33. “Speaking of fantasies, I’d love to hear more about your “hotlist” idea.”

    That bit was vague, I’ll grant you, but does every idea have to be fully fleshed out on the initial proposition to be at least seriously explored? Last I checked this was just a chat board, not the US Congress. I was trying to envision some kind of “third way” as an alternative to either letting the perp walk free and clear, and encouraging cops to behave like thugs.

    My basic idea was to have three tiers of legal response to charges that violate the 4th amendment

    1 – Minor perps like car thieves, dope smokers etc – dismiss, no monitoring

    2 – Serious perps like murderers or heads of statewide drug cartels – dismiss, with monitoring

    3 – Terrorists or other threats to national security and their abettors – I propose that any search or seizure in pursuit of identifying such persons qualifies as “reasonable” and therefore the 4th amendment would offer no protection in this case.

    Scott (57c0cc)

  34. I’m happy to talk substance.

    What you describe is what I roughly envisioned from your earlier post. What is this “monitoring”? How does monitoring differ from normal police investigation of suspected serious felons? How do you monitor a murderer without actually imposing a punishment (e.g. electronic bracelet)? Keep in mind that punishment typically has to be preceded by conviction, which typically has to be preceded by proof of guilt B.R.D. Logical and downright sane, no?

    As for surveillance/wiretaps, those are authorized based on P.C., regardless of some suppression motion. As always, get P.C. and activate the wiretap. Inadmissible evidence is admissible for obtaining warrants – pretty much anything suffices for a warrant, it just takes time. Surveillance under your monitoring system would be no quicker and, seemingly, 100% redundant of what you could do under a warrant.

    How often do murderers get off for 4th A. suppression anyway? Practically never, and at that echelon of seriousness there is a lot of proven police misconduct. You want to exacerbate that?

    It’s drug cases that are most dependent on a single class of evidence (contraband) that suppression is fatal to the case. This aspect of drug cases, together with the greed motive, is why there is a uniquely high level of police corruption in drug enforcement, including planting of evidence and testilying.

    As a critic of most of the gov’t’s drug enforcement policies, I see this as just desserts for trying to keep such a repressive and asinine policy going. But as I pointed out earlier, cops know what to say most of the time, so suppression is an extraordinary remedy granted only (by my count) by a significant minority of judges.

    As for national security, what you propose is carte blanche for the gov’t to hang anyone for capital crimes using false evidence because there is no check on police power. And at the end of the day, there’s very little ground to stand on for any suspected terrorist to move for suppression of evidence. There are a myriad methods for the gov’t to bypass the basic 4th A., and I’m not arguing against all of them, just that what we have was crafted with national security in mind, and as a result is quite sufficient. The only next step, detention without charges or trial, has already been taken. Where do we go from here, and how is your plan any different from what we have?

    biwah (f5ca22)

  35. “As for national security, what you propose is carte blanche for the gov’t to hang anyone for capital crimes using false evidence because there is no check on police power.”

    Well, it would need to be tightened to cover only evidence directly relevant to proving the perp was a threat to national security, but in general when it comes to terrorism my feeling is that terrorists should not be sheltered by the constitution. I think it’s important that a country be able to expand and contract the scope of its laws according to national threat level, beyond just a simplistic binary war/peace toggle.

    I’ll respond to non-national threat part of your post later.

    Scott (57c0cc)

  36. Sure. I too may attempt to get something done today other than blogging about hypotheticals.

    Re national security, no problem – 9.8 out of 10 rational people (the 0.2? hey, this is America) agree that standards should be tend to admit any evidence against a suspected terrorist, as long as it is relevant to the charge and the evidence is open to cross-examination and substantive challenge.

    If our system has any shortcomings in this regard, they can be tweaked without bluntly excepting any area of law from the Fourth (or any) Amendment. It’s a conceptual distinction, but one that has big ramifications.

    biwah (f5ca22)

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