Cass R. Sunstein and Thomas J. Miles have an op-ed in today’s L.A. Times. It’s another one of those pointless exercises that tries to measure “activism” and “partisanship” with studies that purport to be “objective” while ignoring the real issue: are judges deciding cases correctly?

With regard to partisanship, Sunstein and Miles say:

[W]e examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.

We used clear and simple tests to code the decisions of these agencies as either “liberal” or “conservative.” For example, we counted an environmental regulation as “liberal” if it was challenged by industry as too aggressive, or as “conservative” if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him “neutral,” in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him “partisan.”

The problem is: what if all the decisions they are looking at are really liberal?

I can’t express the problem any better than this commenter did at the University of Chicago Law Blog:

Perhaps I am missing an element of the analysis in the LA Times article (which was really more of a synopsis), but it doesn’t seem like the partisanship ranking really tracks partisanship in terms of potential bias (the conventional connotation of the term). Imagine a world in which agencies have a “liberal” bias and that bias manifests itself in the agency’s willingness to overstep the bounds of its proper authority in defense of liberal positions. In that world, wouldn’t a justice who voted against upholding decisions that exceeded agency authority be described as “partisan conservatives” in this analysis even though the justice’s decisions were not influenced at all by the liberal/conservative result being reached by the agency?

Bingo.

Sunstein and Miles make a similar error when they examine “activism” vs. “restraint”:

If a justice regularly voted in favor of agencies, we deemed him “restrained,” because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him “activist,” in the literal sense that he frequently used judicial power to strike down decisions of another branch.

But here, they at least acknowledge that their artificial labels elide the question of whether the decisions are correct:

Note that the terms “restrained” and “activist” are purely descriptive, and so permit an objective test of judicial behavior. It is possible that a justice who is restrained, in our sense, is wrong, and that an activist justice is right.

Indeed. But, like studies that examine activism by reference to the rate at which justices vote to overturn laws, the caveat swallows up the utility of the analysis. As I said about a similar study in September 2006:

If California passed the “Imprison All Arabs Law of 2006″ tomorrow, and a court were to strike it down, this study would label such a ruling an “activist” decision.

Let’s take a couple of similarly absurd examples in the regulatory context. Let’s pretend that the FDA, without any good reason, imposes a 20-year certification process for a new cure for cancer — one that has saved millions of lives throughout the rest of the world with no side effects. If a court struck that down, Sunstein and Miles would label that decision “activist” — even though it would be obviously correct.

If the court upheld a bribery-induced FDA approval of thalidomide as a cure for morning sickness, that would be “restrained” — even though the regulation the court upheld would be insane and would lead to tragic birth defects.

Why do we keep paying attention to studies like this?

UPDATE: More here.

[Posted by WLS]

Last week the cover story in the Weekly Standard was titled “The Stupid Party — How Democrats Earned The Epithet Reserved For Republicans.” I’m not going to try and recapture all the points made by the author, James Ceaser, Prof. of Policites at UVA, but he draws parallels between 1968 and 2008, while discussing the journey of the Dem. party in between. Some of his points are not earthshaking, but events of the past 9 months do seem to bear out the reasonableness of the comparison.

In the 1960s, the Democrat party was taken down not by an assault from the right, but by an assault from the left. The conservative wing of the GOP was waxed by LBJ and the mainstream Dems in 1964, and there was no reason to believe any element of the GOP would recover in time to make a meaningful race out of 1968.

But, in the aftermath of the radical meltdown of the Dems in Chicago, leading to the election of Richard Nixon, the real damage done to the Dem party by the assault upon it by the radical cultural left was only fully recognized by the overwhelming repudiation of the agenda and values of the radical cultural left in 1972, and the re-election of Richard Nixon.

As Ceaser points out, after this repudiation — if they couldn’t beat Nixon after 68-72, who could they beat? — the radical cultural left retreated to the universities in the 1970s and 1980s, and control of the party was re-assumed by the more mainstream traditional liberal establishment that reflected the legacy of FDR, JFK, and LBJ. Carter, Mondale, Dukakis, and Clinton were all orthodox liberals, though Clinton saw the benefit of the “New Democrat” construct in a general election campaign. But the radical cultural left never was able to seize control of the agenda, other than anecdotally during the Clinton Administration in moments of weakness and pandering.

(more…)

[Guest post by DRJ]

I’m branching out for news from other States – but not too far because this story comes from New Mexico. It seems a low-tech fence (article and picture here) has worked to limit illegal immigration in New Mexico:

“Taking the low-tech approach, the Border Patrol erected three miles of fencing this year around Columbus, where a 1916 raid by Pancho Villa killed 17 Americans and drew an American military force led by Gen. John J. “Black Jack” Pershing. The 15-foot-high metal fence extends west of town about 2.7 miles and east of town three-tenths of a mile. To the west of Columbus, a waist-high, concrete-filled metal vehicle barrier extends well beyond the fencing. Border Patrol officials wouldn’t disclose how much of the vehicle barrier the National Guard has constructed.

But along James Johnson’s ranch, which runs right to the Mexican border, the barriers have cut down on pickups freely crossing the common frontier with loads of drugs and illegal immigrants. “We don’t get the very dangerous drive-through traffic that we used to. … I like the fence,” said Johnson, 32, whose family owns 157 square miles of farm and ranch land. “I think the fence is a very good idea. It will not work in all areas, but there are very strategic areas where it will do a good job.”

Border Patrol apprehensions for drugs and illegal immigration on this part of the border are down sharply for 2007.”

Most of the town’s residents support the fence, although it has cut down on the Minutemen’s responsibilities:

“Being a Minuteman in New Mexico is getting pretty fricking boring,” said Robinson, a Pennsylvania transplant. “There are not illegals here to be found.”

So far, the low-tech fence has worked more reliably than the high-tech virtual fence Homeland Security has partnered with Boeing to provide. I’m not against high-tech but there’s nothing wrong with low-tech, especially when it works:

“Few politicians envision fencing the entire 2,000-mile U.S.-Mexico border. Plans call for 700 miles of fencing, and only 370 miles of that by the end of next year. But the low-tech hardware near the main official border crossings in New Mexico seems to discourage crossings along the state’s 180-mile border with Mexico.

“It’s like the toothpaste effect. They were squeezing them in Arizona, and now we’re pushing them,” said Sharon Mitamura, a Luna County sheriff’s deputy and border veteran who’s seen the flow of immigrants drop as they’re forced to cross away from inhabited areas. “A lot of it is desolate desert, and we’ve had some fatalities; but as far as I can tell, it’s made an impression. It’s slowed it.“

Fences work. Build the fence.

— DRJ

[guest post by Justin Levine] 

In terms of radical leftwing academics, I can think of very few who are both good writers and have ideas that should be taken seriously.

However, one such person that comes to mind is Mike Davis, a Southern California historian and author of the bestselling book The Ecology of Fear: Los Angeles and the Imagination of Disaster.

One provocative chapter in that book is entitled “Let Malibu Burn: A political history of the Fire Coast.”

An excerpt of that chapter can be found here. [Recommended reading in light of the fires we’ve had in the area the past few days.]

Naturally, you can challenge Davis on a number of levels, but one of his underlying points seems to be beyond debate at this juncture – wildfires in Malibu are a naturally reoccurring phenomenon that are guaranteed to return to haunt us every few years. So unless we radically rethink how that area is to be zoned and constructed, people will be indirectly subsidizing the Hollywood limousine-liberal millionaires of the area who use a disproportionate amount of state firefighting resources and disaster relief in order to keep rebuilding the area the same way and maintain their lifestyle.

Davis’s own take –

A perverse law of Pyne’s new fire regime was that fire stimulates development as well as upward social succession. By declaring Malibu a federal disaster area and offering blaze victims tax relief as well as preferential low-interest loans, the Eisenhower administration established the precedent for the public subsidization of firebelt suburbs. Each conflagration, moreover, was punctually followed by rebuilding on a larger and more exclusive scale as land-use regulations and sometimes even the fire code were relaxed to accommodate fire “victims.” As a result, renters and modest homeowners were displaced from areas like Broad Beach, Paradise Cove and Point Dume by wealthy pyrophiles encouraged by cheap fire insurance, socialized disaster relief and an expansive public commitment to “defend Malibu.”

Food for thought.

Taking a page from (Malibu resident) Rob Reiner’s own playbook, I would propose a new California proposition amending the state constitution to increase real estate taxes on Malibu homeowners with such funds being dedicated to firefighting resources in L.A. County. We need to do it for the children you understand….

[Guest post by DRJ]

On August 26, 2007, about 2 weeks before General Petraeus’ Congressional testimony on the surge, the AP’s Steven R. Hurst reported that there had been “at a minimum” double the number of Iraqi deaths from sectarian violence as there had been a year before. This report was apparently based on AP tracking from government, police, and other sources:

“This year’s U.S. troop buildup has succeeded in bringing violence in Baghdad down from peak levels, but the death toll from sectarian attacks around the country is running nearly double the pace from a year ago.
***
The AP tracking includes Iraqi civilians, government officials, police and security forces killed in attacks such as gunfights and bombings, which are frequently blamed on Sunni suicide strikes. It also includes execution-style killings largely the work of Shiite death squads.

The figures are considered a minimum based on AP reporting. The actual numbers are likely higher, as many killings go unreported or uncounted. Insurgent deaths are not a part of the Iraqi count.”

Yet on October 21, 2007, in reporting airstrikes during US and Iraqi military actions in Sadr City that may have killed 49 insurgents, Hurst noted a previously unmentioned tendency by police, government and hospital sources to overstate casualties:

“The U.S. military said its forces killed an estimated 49 militants during a dawn raid to capture an Iranian-linked militia chief in Baghdad’s Sadr City enclave, one of the highest tolls for a single operation since President Bush declared an end to active combat in 2003.

Iraqi police and hospital officials, who often overstate casualties, reported only 15 deaths including three children. Iraqi government spokesman Ali al-Dabbagh said all the dead were civilians.”

Some readers may recall that this is the same Steven R. Hurst who wrote about Capt. Jamil Hussein, a source for numerous AP reports of Iraqi deaths and atrocities. For instance, this AP/Hurst report dated January 4, 2007, proclaimed Iraqi officials had acknowledged Hussein did exist and that he had been threatened with arrest for speaking to the media.

Now that the US and Iraqi military and police actions may be working, it seems the AP’s new accepted wisdom is that casualties are often overstated. Where was this accepted wisdom the past 4 years?

Or maybe it’s because the elusive Capt. Jamil Hussein is no longer in charge of the AP’s Iraqi casualty figures.

— DRJ

[Guest post by DRJ]

Over 7 fires are burning in California including fires in San Diego County that have forced 250,000 people to evacuate. Officials have urged people to evacuate when they see fire, whether or not they’ve been told to evacuate:

“Unrestrained fires stoked by gale-force winds raged across San Diego County today, forcing more than 250,000 people from their homes and scorching 100,000 acres, a county official said, in the worst of more than a dozen blazes racing across Southern California.

“If you see a fire, please evacuate immediately. Don’t wait to be told to leave,” San Diego Mayor Jerry Sanders said at a news conference this morning. Among those evacuated were hundreds of patients at Pomerado Hospital and a nursing home in suburban Poway, officials said.”

Officials are doing what they can but battling fires on so many fronts has put a severe strain on area fire departments:

“Gov. Arnold Schwarzenegger proclaimed a state of emergency in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara and Ventura counties. At least one blaze, the Santiago Fire in Orange County, was believed to be arson, officials said this morning. Two other fires might have been caused by downed power lines.”

In addition, there are fears that the Malibu fire (2400 acres burned, 10% contained) could spread to area trigger points and jeopardize 12,000 to 14,000 more people living in the surrounding area.

— DRJ

[Guest post by DRJ]

The verdict in the Holy Land Foundation terror trial in Dallas will be announced today, October 22, 2007, at 10:00 AM CST, which means it’s happening right now. I’ll update this when the verdict is made public.

[Note: The Final Final Update has been bumped to the top and earlier updates are beneath the fold. Also note that the quotes contained in the Final Update were correct when posted but, apparently, the linked article was subsequently replaced by a new version. The article initially stated there was a verdict of guilt as to one defendant on one count but that has been changed. I’m correcting this post to reflect that change.]

Final Final Update, 10/23/07 @7:00 pm CST: Even more amazing, the earlier Fort Worth Star-Telegram report linked in the Final Update was apparently wrong. There was not a conviction as to one defendant but there was a mistrial:

“Jurors finally indicated that they had reached verdicts last Thursday. But their decisions were sealed until Monday because federal District Judge A. Joe Fish was out of town.

As Fish read the results, it appeared that jurors had acquitted Abdulqader on all charges, El-Mezain and Abdulrahman Odeh on most charges, and failed to reach decisions on any counts involving Baker, Elashi or Holy Land itself. But even that partial result was precarious. When the judge polled each juror whether he or she agreed with the verdicts – normally a formality – things turned chaotic, as three jurors disavowed the vote.

Fish sent the jury back to resolve the differences, but after about an hour, they said they could not continue, and the judge declared a mistrial.”

See also comment 14, below.

— DRJ

(more…)

Catching up on my blog reading, I see that Eugene Volokh has posted the relevant portions of the recent decision holding that conditions at the L.A. County Jail constitute cruel and unusual punishment. The reasoning ends up having some apparent precedent in the law — and yet, is shocking in its silliness. Even sillier is the sophomoric way in which it’s expressed. Here is an example:

The Constitution clearly does not allow prisoners to suffer the deprivation of adequate food or water. Just so, prisons may not deprive those in their care of a basic place to sleep — a bed; for like wearing clothing, sleeping in a bed identifies our common humanity.

That many individuals, for cultural or health reasons, choose to sleep on the floor in no way detracts from this point. A predilection for camping under the stars or the soothing touch a hard futon may have on a sore back is entirely different in kind from stripping an individual of the option of using a bed. Quite simply, that a custom of leaving inmates nowhere to sleep but the floor constitutes cruel and unusual punishment is nothing short of self-evident.

Quite simply, that this opinion is badly written is nothing short of self-evident.

UPDATE: In case you don’t click through to Volokh’s post, I should make it clear: the inmates weren’t really sleeping on the floor. They were sleeping on mattresses, which were on the floor. Apparently, this is unconstitutional.