Patterico's Pontifications

7/21/2005

Dahlia Lithwick: Dishonest or Utterly Useless

Filed under: Dog Trainer,Judiciary,Scum — Patterico @ 7:59 pm



Beldar catches Dahlia Lithwick in a snide misrepresentation about Supreme Court nominee John Roberts:

[Judge John Roberts] doesn’t appear to be crusading for a wholesale national retreat to the good old days of executing miscreant ‘tweens (although he seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations).

I criticized an L.A. Times article yesterday for making it sound like Roberts approved of arresting a 12-year-old girl for eating a French Fry. I noted that anyone who actually bothers to read the opinion will plainly see that Roberts was unhappy that police arrested the girl.

Beldar says that “one could at least defend the LAT’s writers and editors as being merely stupid instead of dishonest. Perhaps they never actually read the opinion, or lacked the training to understand it.” I’d say they might have been “lazy” rather than “stupid.” It takes no particular training to read the passages of the opinion in which Roberts expresses his disapproval of the police actions in that case. It just requires a reporter who cares about getting it right — at least enough to read the opinion.

But, as Beldar also observes, it’s very hard to believe that Dahlia Lithwick, who is supposedly knowledgeable about the law, has not read the opinion. And if she hasn’t, what the hell good is she anyway?

And don’t try to tell me that this is simply exaggeration, like her ridiculous comment about the United States executing “‘tweens” (typically used to refer to 9 to 12-year-olds) for being “miscreant,” when execution is possible only for murder. (“Mabel! Them kids done raped and murdered another young girl! Dang miscreants!”) That comment is simply the usual Lithwick nonsense: cheap shots and gross exaggeration. But the “French Fry” comment is either a lie (as Beldar believes) or an inexcusably sloppy misrepresentation from someone in Lithwick’s position.

Folks, this is an important issue. The “John Roberts wants to arrest 12-year-olds for eating french fries” lie has to be nipped in the bud. It’s disturbing that someone as widely-read as Dahlia Lithwick believes that she can make a misrepresentation like this and get away with it. I am encouraging everyone with a blog who cares about a good judiciary to link Beldar’s post, and ask your readers to link it too. I also encourage each and every reader of mine to write Slate and demand a correction. The e-mail address is corrections@slate.com.

Let’s show Lithwick that she can’t get away with something like this.

UPDATE: Dahlia Lithwick has responded to Beldar. He sets forth her defense, and then utterly demolishes it, in this post.

54 Responses to “Dahlia Lithwick: Dishonest or Utterly Useless”

  1. “Roberts was unhappy that police arrested the girl.”

    We’re really touched by his emotions. Really.

    actus (a5f574)

  2. Actus:

    So what would you have liked Roberts to do? Rule the arrest unconstitutional, not because it was actually unconstitutional, but because he didn’t like it?

    Fredrik Nyman (d08b7e)

  3. Didn’t take long, did it?

    j.d. (0bc04d)

  4. Slate Slander

    Let the lies begin….

    Sierra Faith (a4b07f)

  5. french-fries: didn’t take long

    Yesterday, I pointed to a couple of pieces about the “french-fry case,” and how it will be sure to dog the Supreme Court Justice nominee John Roberts. I didn’t comment further, because I’m not a lawyer and, well, you all (most …

    evolution (5d4d56)

  6. Perfect, Actus, just perfect. Emotion should trump reason. Dumbass.

    Fred Z (83acf5)

  7. A q for you, Mr. Actus. Let’s strip away the vernacular and cut to the chase:

    If a judge personally does not like a particular law, what should he/she do?

    1. ignore it
    2, uphold it
    3. twist it

    John G. Roberts didn’t dodge the above issue, and he answered the q forthrightly. Let’s see how you match up to him.

    We await your answer.

    ras (f9de13)

  8. Breakfast: 7/22/2005

    Try one of these specials with your breakfast: The Skipper (BMEWS) is amused by the opposition to the Minutemen in San Diego. Outside The Beltway is amused by some oppotion to Roberts. PoliPundit adopts a position on Roberts. Patterico notes

    basil's blog (af7df9)

  9. “So what would you have liked Roberts to do? Rule the arrest unconstitutional, not because it was actually unconstitutional, but because he didn’t like it?”

    Why is everyone acting like he applied the law correctly? Cuz he’s Roberts the superstar?

    On the anti-lawyerdom hieararchy plain meaning soapbox that I’ve actually never gotten on, I had a hard time explaining to my partner how a result that “no one is happy about” is a “reasonable seizure.” The whole thing about no-one agreeing that it should happen seemed to her to make it the quintessence of unreasonableness. Logically or emotionally. Thankfully I don’t have to worry about this one too much.

    But also, if a judge is supposed to act unemotionally, why add in his emotions? So that we’re touched?

    actus (a5f574)

  10. Why is everyone acting like he applied the law correctly? Cuz he’s Roberts the superstar?

    Because he did. We understand (and reject) your emotional argument to the contrary. Do you have a legal one?

    Patterico (756436)

  11. “Because he did. We understand (and reject) your emotional argument to the contrary. Do you have a legal one”

    What did petitioner argue?

    actus (a5f574)

  12. This was not even a case of upholding an arrest that would lead to trial and conviction. There was no further action taken against the child. The issue was whether the Fourth and Fifth Amendments gave a cause of action (e.g. Bivens) to the child and her parents to sue the authorities for money for what was done to her.

    nk (8214ee)

  13. What did petitioner argue?

    Actus, why don’t you do us all a favor and read the opinion before you comment further.

    Patterico (756436)

  14. It cuts to the heart of conservative vs liberal philosophy re judges.

    I’ve read a lot of stuff on Roberts at various left leaning sites the last few days and I don’t think you can expect a lib to recognize or credit what Roberts did here. Being as generous as is possible they just do not understand the concepts involved.

    He said the law was moronic but there weren’t constitutional issues involved so there was nothing he could do. That’s what cons mean by ‘judicial restraint’. Libs would prefer he declared the law unconstitutional – and its clearly not unconstitutional to make it illeagal to eat on the subway, although tossing a 12 year old in the pokey for it is frankly stupid…I’d even go so far as to say it is abusive.

    BTW, I wonder if they caught a mother breast feeding her baby under a blanket if they’d have tossed her in jail too. Idiots.

    Dwilkers (a1687a)

  15. Thumping Dahlia Lithwick

    I’ve both challenged and defended Dahlia Lithwick here. Time to break the tie! Beldar quotes this passage from a recent Slate piece on Judge Roberts: He doesn’t appear to be crusading for a wholesale national retreat to the good old days of executing…

    New World Man - a cell of awareness (d18ece)

  16. Actually Dwilkers, conservative and liberal justices have been very wary of creating private tort actions out of the Bill of Rights as far back as I can remember. Even CJ Warren Burger, when he was looking for a viable alternative to the exclusionary rule, asked Congress to pass a law creating a remedy for wrongful arrest instead of enacting it judicially. Please also consider that there are common law causes of action for false arrest, false imprisonment and malicious prosecution. That the plaintiffs were proceeding under the Fourth and Fifth Amendment theories meant that they could not make a case under the common law. (That was also the situation in Gonzales v. Castle Rock). I make these points to rebut Ms. Lithwick’s implication that Judge Roberts wants tweens arrested.

    nk (47858f)

  17. “Actus, why don’t you do us all a favor and read the opinion before you comment further. ”

    I did. I agree with petitioner. Don’t act like the only counter-argument to the decision is emotional. Though I admit that it really is unsurprising that a result that “no one is happy” about is an “unreasonable seizure.”

    “He said the law was moronic but there weren’t constitutional issues involved so there was nothing he could do.”

    One constitutional issue was the fourth amendment right to be free from unreasonable seizure. He thinks this result was reasonable. The child, and others, think not.

    actus (cd484e)

  18. Say, actus, you’re wicked smart – tell us how the ocurt was wrong, particularly in light of Atwater.

    eddie haskell (8fd1a1)

  19. “Say, actus, you’re wicked smart – tell us how the ocurt was wrong, particularly in light of Atwater.”

    The petitioner provided a way to distinguish Atwater. I agree with it.

    actus (cd484e)

  20. One constitutional issue was the fourth amendment right to be free from unreasonable seizure.

    It’s unreasonable “search and seizure”, not unreasonable seizure. That’s about searching someone’s home or other private places. It has to do with obtaining evidence against someone without a warrant.

    Gerald A (add20f)

  21. “It’s unreasonable “search and seizure”, not unreasonable seizure. That’s about searching someone’s home or other private places.”

    Its also about seizing them. Like, putting them in handcuffs and jail. Or do you imagine there are no constitutional protections for that? Ask patterico. He’s a DA no?

    actus (cd484e)

  22. The petitioner provided a way to distinguish Atwater. I agree with it.

    Where did the petitioner provide a way to distinguish Atwater?

    Gerald A (fe1f90)

  23. I did. I agree with petitioner. Don’t act like the only counter-argument to the decision is emotional.

    Then you shouldn’t have phrased it as a question. It’s an annoying tic of yours, and it strongly suggested you didn’t read the opinion.

    I invited you to make an argument not rooted in emotion, and (other than saying “I agree with the petitioner”) you have declined to do so. Don’t act like I didn’t give you a chance.

    I think you have a hard time dealing with footnote 23 to the Atwater opinion, which strongly suggests that this exact scenario is comparable to the facts of Atwater. Perhaps you just don’t like Atwater — but then, you wouldn’t want Roberts to be an activist and ignore Supreme Court precedent that cannot be rationally distinguished, right?

    And if you argue that it can be distinguished, you should explain Atwater’s footnote 23. Try saying something more than a lazy “I agree with the petitioner” since the opinion gives no indication that the petitioner even addressed that very compelling argument regarding that footnote.

    Patterico (0be63e)

  24. Since we have you here, Actus, would you care to comment on the subject matter of the actual post? In case you forgot, it relates to Dahlia Lithwick’s dishonesty or incompetence. Which sin do you believe her guilty of?

    Patterico (0be63e)

  25. “Where did the petitioner provide a way to distinguish Atwater?”

    Roberts addresses it in his opinion.

    “I invited you to make an argument not rooted in emotion, and (other than saying “I agree with the petitioner”) you have declined to do so”

    I agree with the legal argument made by petitioner. Do I need to cut and paste it?

    I don’t see how I need to get around footnote 23. A brief mention in an oral argument to a similar case? The Atwater court was not ruling on the facts of Hedgepeth, and did not know the facts that distinguinshed Hedgepeth from Stwater. A distinction the petitioner made which I agree with.

    I also think that roberts dicta-ish rant about discretion at the end of the opinion is wrong-headed. Of course there are times when the 4th amendment is served by increasing discretion — times like this one.

    As to the point of the post I think its perfectly fine to berate roberts for finding this situation a reasonable seizure.

    I think its idiotic to think that the only counter arguments are emotional ones. It is, however, clever to bring up Roberts emotional arguments.

    actus (cd484e)

  26. actus – Are you saying that you believe that legislation that requires arrest (i.e., eliminates a LEO’s discretion) violates the Fourth Amendment right to be free form unreasonable searches and seizures?

    eddie haskell (8fd1a1)

  27. As to the point of the post I think its perfectly fine to berate roberts for finding this situation a reasonable seizure.

    She did far more than that. She indicated that he approved of it on a policy level. Do you deny that she did that?

    And if you admit it, then do you agree with her?

    And if you do, what’s your proof?

    Patterico (0be63e)

  28. “Are you saying that you believe that legislation that requires arrest (i.e., eliminates a LEO’s discretion) violates the Fourth Amendment right to be free form unreasonable searches and seizures?”

    In the factual circumstance that hedgepeth presents it does. I at least believe that there are strong legal, non-emotional arguments against in favor of this position.

    “She did far more than that. She indicated that he approved of it on a policy level. Do you deny that she did that?”

    She called it a part of parent-child relations. That was the “rational relation” that Roberts found for the arrest: notifying parents of their kid’s violations. I think its correct to berate roberts result. I don’t know what other possible rational relations were submitted for him.

    Lithwick should have communicated the emotional argument that roberts made.

    actus (cd484e)

  29. “In the factual circumstance that hedgepeth presents it does. I at least believe that there are strong legal, non-emotional arguments against in favor of this position.”

    Heh. typo. Against finding it “reasonable.” In favor of the position that it is unreasonable.

    actus (cd484e)

  30. She called it a part of parent-child relations.

    No, she didn’t. She said that Roberts seemingly found arrests like the one in that case “a cornerstone in good parent-child relations.” (My emphasis.) “Cornerstone,” not “part.” By the use of this language, she clearly meant to convey that Roberts endorsed the policy — when he quite clearly did not.

    Incidentally, Lithwick has responded to Beldar’s criticism, with exactly your argument, Actus: she was referring to the rational basis articulated by Roberts. Beldar has an excellent response which I will link in an update. He demolishes her defense quite thoroughly.

    Patterico (0be63e)

  31. Lithwick is consistently terrible. Too much journalist, not enough lawyer.

    slickdpdx (592355)

  32. ” Beldar has an excellent response which I will link in an update. He demolishes her defense quite thoroughly.”

    I still wonder what other rational relations were advanced for Roberts to pick from.

    Beldar does a good job of making a joke not funny. Specially a joke that links to the whined about text of the opinion: “no one is happy”

    actus (cd484e)

  33. actus – Your answer to my question suggests that you think that there are circumstances in which a statute making arrest mandatory on probable cause would not be unconstitutional under the Fourth Amendment. What specific “factual circumstances” do you think make the statute in Hedgepeth violative of the Fourth Amendment (without ignoring Atwater)?

    eddie haskell (8fd1a1)

  34. “Your answer to my question suggests that you think that there are circumstances in which a statute making arrest mandatory on probable cause would not be unconstitutional under the Fourth Amendment”

    A statute mandating arrest when there is probable cause of a murder for example, would not violate the fourth amendment.

    “What specific “factual circumstances” do you think make the statute in Hedgepeth violative of the Fourth Amendment (without ignoring Atwater)?”

    That the crime was a minor consuming a french fry. That while it is reasonable to give discretion to the police to arrest when there is probable cause, that needed deference does not extend to blanket policies of zero tolerance arrests.

    actus (cd484e)

  35. I have a few other “jokes” I could make. How about these?

    Anthony Kennedy doesn’t appear to be crusading for a wholesale national retreat to the good old days of cross-burning (although he seemingly finds burning American flags to be a cornerstone of good citizenship).

    That could be my “joke” about Kennedy’s vote to join Texas v. Johnson, despite his concurrence that clearly indicates he hates flag-burning.

    Clarence Thomas doesn’t appear to be crusading for a wholesale national retreat to the good old days of lynching gays (although he seemingly finds imprisoning them for their private conduct to be a cornerstone of a society with strong values).

    That could be my “joke” about Thomas’s dissent in Lawrence, despite his clear expression of disdain for the law he voted to uphold.

    Either one would be a completely dishonest cheap shot. Yet, somehow, I can see either one emanating from the keyboard of Dahlia Lithwick.

    Patterico (5e0057)

  36. I think those are hilarious. Specially if they link to the opinion whose first line dispells the joke.

    Make one about scalia ranting about the homosexual agenda.

    actus (cd484e)

  37. actus – You acknowledge that a “zero tolerance/mandatory arrest” statute is not per se unconstitutional. On what constitutional basis, as opposed to a mere policy preference, do you determine that an arrest for murder (or the arrest in Atwater) comports with the Fourth Amendment but the arrest in Hedgepeth does not?

    eddie haskell (8fd1a1)

  38. He doesn’t have one. He’s a proponent of “I like it, therefore it is Constitutional” and “I don’t like it, therefore it is unconstitutional” adjudication.

    Angry Clam (f05866)

  39. “On what constitutional basis, as opposed to a mere policy preference, do you determine that an arrest for murder (or the arrest in Atwater) comports with the Fourth Amendment but the arrest in Hedgepeth does not?”

    The punishment is different. The reasonableness in the state arresting a suspect who faces the potential death sentence is different than the reasonableness in arresting a suspect who faces a 25 dollar fine. This is true given how extensive a seizure an arrest is: searches, photographing, handcuffing, perhaps being held for a few days, perhaps more if a long weekend.

    “He doesn’t have one. He’s a proponent of “I like it, therefore it is Constitutional” and “I don’t like it, therefore it is unconstitutional” adjudication.
    The constitutional difference is in the word “reasonable.”

    Some people may confuse this with policy, and it is unsurprising that bad policies are unreasonable.

    Hey clam, what have you heard about roberts’ 11th amendment pronouncements?

    actus (a5f574)

  40. Actus- you started from the conclusion that a jurisprudence must include the holding in Griswold in our last discussion, remember? There’s no “reasonableness” dodge there.

    Also, 4th Amendment reasonableness is about probable cause, not about proportionality, and arrests are not “punishments” under the 8th Amendment. These two things are not me spouting my personal views, either, but the actual caselaw, as it stands, of the Supreme Court.

    Regarding the 11th Amendment, I haven’t heard much, which isn’t surprising… there aren’t a lot of states in the D.C. Circuit.

    Angry Clam (f05866)

  41. “Actus- you started from the conclusion that a jurisprudence must include the holding in Griswold in our last discussion, remember? There’s no “reasonableness” dodge there.”

    There I nakedly agree with teh fact that we need to find some way to protect us from the “moral majority.” Here there is something different going on.

    “Also, 4th Amendment reasonableness is about probable cause, not about proportionality,”

    Its just that the text seems to say reasonable. Limiting it to probable cause gives us a result which I think we can fairly describe as unreasonable in this situation. But then again, I’m not one of those ‘stare decisis is fo suckas’ lets stick to the text types.

    “Regarding the 11th Amendment, I haven’t heard much, which isn’t surprising… there aren’t a lot of states in the D.C. Circuit.”

    Oh I doubt he’s written an opinion on it. I’m curious if he’s said anything about it in other fora.

    actus (a5f574)

  42. “There I nakedly agree with teh fact that we need to find some way to protect us from the ‘moral majority.’ Here there is something different going on.”

    Yeah, this time, you’re the “moral” majority.

    “Its just that the text seems to say reasonable. Limiting it to probable cause gives us a result which I think we can fairly describe as unreasonable in this situation. But then again, I’m not one of those ’stare decisis is fo suckas’ lets stick to the text types.”

    I’m hoping you could also explain what this text means: “[t]hese two things are not me spouting my personal views, either, but the actual caselaw, as it stands, of the Supreme Court.”

    “Oh I doubt he’s written an opinion on it. I’m curious if he’s said anything about it in other fora.”

    Good luck finding it. He’s got very little un-privileged work.

    Angry Clam (280c3c)

  43. “I’m hoping you could also explain what this text means: “[t]hese two things are not me spouting my personal views, either, but the actual caselaw, as it stands, of the Supreme Court.”

    That was the “fo’ suckas” line. Like I said above: The petitioner distinguished Atwater — which even though recent, was ruling on a novel issue — in a way that allowed the court to find a reasonable result.

    We shouldn’t be surprised that a textual command for reasonablenes also strikes down bad policies.

    actus (a5f574)

  44. Lower courts are bound to respect the decisions of higher courts- it is judicial impropriety otherwise. See, for example, Stephen Reinhardt, who has stated that he will refuse to enforce, on habeas, California’s three strikes law, despite the Supreme Court holding it constitutional.

    The “creative” use of precedent, like that urged by petitioner, is an invitation to bad-faith judging.

    Stare decisis is for suckers when its from the same level of court; it isn’t when its a command of a superior court. Lower court judges have absolutely no proper discretion to disobey.

    Angry Clam (280c3c)

  45. “The “creative” use of precedent, like that urged by petitioner, is an invitation to bad-faith judging.”

    Its really not that creative to constrain a holding to the facts it mentions in discussing why it reached its holding.

    actus (a5f574)

  46. Yes it is.

    “Limiting a case to its facts,” is sleight-of-hand overruling.

    Angry Clam (280c3c)

  47. ““Limiting a case to its facts,” is sleight-of-hand overruling.”

    And extending a case to new, different, facts is making law.

    actus (a5f574)

  48. If they’re not *meaningfully* different, then it’s applying law, not making it.

    Patterico (756436)

  49. actus – According to your answer to my question, you believe that the Fourth Amendment prohibits arrests for minor offenses. What is the textual support and/or precedent (leave your policy preferences out of it) for your claim that potential punishment upon conviction determines the constitutionality of an arrest?

    eddie haskell (8fd1a1)

  50. “What is the textual support and/or precedent (leave your policy preferences out of it) for your claim that potential punishment upon conviction determines the constitutionality of an arrest”

    The textual support is the command that these seizures must be reasonable. Which includes taking into account several circumstances, including the need to give discretion to officers, etc…

    But its not just potential punishment. Atwater was concerned with giving discretion to officers. Hedgepeth does not have that concern: the decision to arrest is discretionless and mandatory.

    actus (cd484e)

  51. actus – I figured I wouldn’t get anything other than “THE LAW ACCORDING TO ACTUS.”

    eddie haskell (8fd1a1)

  52. “actus – I figured I wouldn’t get anything other than “THE LAW ACCORDING TO ACTUS.””

    You mean the text of the constitution, ‘reasonable,’ isn’t enough?

    actus (cd484e)

  53. actus – You have not cited any case in which the Supreme Court has held that arrest for a minor infraction is unreasonable under the Fourth Amendment. As the discussion in Hedgepeth makes clear, the court has refused to add a layer of reasonableness scrutiny beyond “probable cause,” which is the text of the Fourth Amendment that you ignore.

    You are free to say the Supreme Court is wrong (even as you offer little to no justification for your view) and ignore its rulings, but Judge Roberts is not. And that’s something that you either get or you don’t.

    eddie haskell (8fd1a1)

  54. “actus – You have not cited any case in which the Supreme Court has held that arrest for a minor infraction is unreasonable under the Fourth Amendment.”

    It was an issue of first impression for Atwater — discretionary arrest for a minor infraction, so there is likely not a case discussing the scenario of a mandatory arrest policy for minor infractions.

    Are seizures really not examined for issues besides probable cause? Like length of time of the seizure?

    actus (cd484e)


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