Patterico's Pontifications


A Decision Worthy Of Scalia

Filed under: Court Decisions — Justin Levine @ 11:02 pm

[posted by Justin Levine]

DRJ has already given a good rundown of the Supreme Court’s decision in Medellin v. Texas.

I just had to point out the [PDF] opinion by Chief Justice Roberts manages to channel some of Scalia’s best moments when he body slams the dissent with some veiled sarcasm.

One choice passage –

The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self execution) using the wrong standard (clarity) in the wrong place (the treaty language).” Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty.


The interpretive approach employed by the Court today— resorting to the text—is hardly novel.

More Fallout from Hillary’s Bosnian Fable

Filed under: 2008 Election — Patterico @ 9:27 pm

Allah has video. Hilarious video. Watch the third clip especially.

Why Is Doug Kmiec Endorsing A Guy Who Voted Against Roberts and Alito?

Filed under: General — Patterico @ 8:24 pm

When Doug Kmiec issued his recent puzzling endorsement of Barack Obama, I asked a simple question:

Prof. Kmiec, that’s all very nice. I’m happy that you feel that, if you vote for the guy who disagrees with aspects of your allegedly fundamental beliefs, he’ll do his best to respect your point of view. But, you see, there is a candidate — his name is John McCain; you might have heard of him — who actually supports the principles for which you claim to stand. Why you are refusing to support him?

The Wall Street Journal Law Blog spoke with Kmiec and asked him exactly that. Here is his response, such as it is:

I have nothing against McCain. Indeed, he was my candidate in 2000, and I would still think him the better choice in 2000. But, perhaps like my time, his time has passed. John’s understanding of warfare is the understanding of, as Tom Brokaw put it, the greatest generation. Just as shock and awe did not prevail in Iraq, McCain’s under-estimation of the cost of deployments both in terms of money, life, and international standing, make him not well suited to protect our national security in a time of terrorist threat.

If nothing else, Kmiec is continuing his streak of issuing bizarre and incomprehensible pronouncements. If you can make heads or tails of that, more power to you. McCain underestimates the cost of war, and therefore can’t defend us against terrorism. But he woulda been great in 2000! (This makes even less sense when you consider that Kmiec endorsed Romney — even though Romney constantly tried to compete with McCain for the title of “Toughest on the Iraq War.”)

Kmiec’s reasoning gets more mush-headed the more you read:

President Reagan used to tell all of us in his administration, and the public generally, that his proudest achievement was making the country feel better about itself. I believe Obama is committed to giving us reason to feel better about ourselves.

Good Lord.

Memo to Kmiec: there is no reason the American public should particularly care about your opinions on the war, or Obama’s ability to inspire people. The only reason the public at large might actually care about your endorsement is because you theoretically know something about picking good judges. In endorsing Obama based on some incomprehensible argument about the war (incomprehensible because you endorsed Romney, and still say McCain was the right choice in 2000), you are opining outside your area of expertise. Prof. Kmiec, you are, like all of us bloggers, free to pontificate on areas outside your expertise. You are free to endorse who you like, and to blog it — wallowing in the pigsty of narcissism in which all of us bloggers happily roll around every day.

But your opinion is considered valuable primarily (if not only) because of your legal background and knowledge.

Prof. Doug Kmiec is, to use the famous phrasing of the Simpsons’s fabled attorney Lionel Hutz, a law-talkin’ guy. That’s why people listen to him. He is a professor of constitutional law, a former law school dean, and a former head of the Office of Legal Counsel. It’s his legal background that gives him, in theory, expertise in recommending solid judges. (I won’t attack that expertise by referring to his endorsement of Harriet Miers; many good and smart people endorsed her, from Bill “Beldar” Dyer to John Cornyn.) And it is that supposed expertise, combined with the President’s role in nominating federal judges, that gives Kmiec’s endorsement whatever credibility to which it was presumptively entitled — before he blew that credibility by issuing an endorsement that failed to make the case for his preferred nominee.

So what does Kmiec say about the issue of judges — the only one we should really care about when evaluating his recommendation?

One of the hardest things to reconcile was my concern with the Supreme court, which I do think President Bush, somehow miraculously, deserves credit for. The Chief Justice and Justice Alito are unparalleled. But I view those appointments not as partisan appointments, but rather appointments that, as Roberts tried to articulate, are designed to take politics out of the Court. So when my fellow conservatives say that even thinking about Senator Obama betrays the importance of Supreme Court appointments, I think they’re smuggling in an improper premise – that there aren’t people of integrity from both parties that can do constitutional interpretation in the vision of a limited judicial role.

There’s nothing miraculous about Bush’s success in this area, Prof. Kmiec. Bush ran on a platform of nominating judges in the mold of Justices Scalia and Thomas — and as far as was politically possible, that’s exactly what he did. Now John McCain is running on a platform of nominating judges in the mold of Justices Alito and Roberts. Your candidate, Obama, voted against Roberts and against Alito.

The issue isn’t whether there are people of integrity from both parties who “can do constitutional interpretation in the vision of a limited judicial role.” The question is whether the man you are endorsing is a man who will nominate such people. How in the world can you expect him to, when he cast unprincipled and nakedly political votes against two nominees whom you consider “unparalleled”?

It’s too bad the WSJ Law Blog didn’t pose this question to Prof. Kmiec. What the hell; I have e-mail. I’ll do it myself.

UPDATE: Beldar suggests Kmiec’s endorsement results from temporary insanity. Doesn’t that defense inherently have an expiration date?

Reforming the Mexican Legal System

Filed under: International — DRJ @ 6:28 pm

[Guest post by DRJ]

I always assumed the American legal system was similar to the Mexican system but the American system works better because America is a more stable society and Mexico is plagued by corruption. Then I read this article in the El Paso Times.

I did not realize how different the legal systems were before Mexico implemented recent sweeping reforms. I hope these reforms and the transparency they bring will help Mexicans improve their government and their lives. They certainly need help given the escalating levels of violence in Mexico. In Juarez alone, 3 off-duty police officers and more than 15 people were murdered in the past few days.


Godfather Bratton

Filed under: Current Events,Dog Trainer — Jack Dunphy @ 4:43 pm

[Guest post by Jack Dunphy]

KNBC television reported yesterday that LAPD Chief William Bratton employed some very colorful and cinematic language in seeking to quash dissent within the department over the recent SWAT controversy. “You’re all familiar with ‘The Godfather’ movie” he told reporters, “and throughout most of the movie the Corleones are getting banged around pretty good and then Michael makes a statement that all debts will be settled. And at the end of the movie, all debts are settled in a very bloody way . . . I’m more than willing to take the slings and arrows for a couple more weeks, but like Michael Corleone, I’ll get my time.”

Thus is the chief of police threatening what one can only hope is a figurative rather than literal rubbing out for anyone who dares to question his wisdom. As of this writing, the remarks have received no coverage in the Los Angeles Times. Try to imagine our sophisticated betters at the Times being just as blasé if former Chief Daryl Gates had said anything even remotely similar.

Even worse, the Los Angeles Police Commission, Bratton’s titular bosses, held their regular weekly meeting this morning, yet no one on the Commission dared remind the chief that his comments might have been a bit over the top, and that anyone of lower rank who had said the same thing would be facing a lengthy suspension.

It’s hard to say who comes out looking worse in this, Bratton, the editors at the Times, or the police commissioners.

— Jack Dunphy

PATTERICO ADDS: Jack, remind me again why you write under a pseudonym?

Boston Law’s “Gang of 22”

Filed under: Current Events — DRJ @ 2:12 pm

[Guest post by DRJ]

Driver reveals that the Boston College Law School faculty or, as she calls them, the “Gang of 22”, have joined in a letter that ‘disinvites’ Michael Mukasey to be the law school’s commencement speaker. Quoting from the Wall Street Journal:

“Neither the faculty nor the students were consulted” before the invitation was issued, the letter advises. And though the professors realize that Mr. Mukasey’s job has “complex professional difficulties,” his role as a symbol for waterboarding conflicts with “the ideals of Boston College Law School and [its] Jesuit principles.”

This is not the way I pictured Jesuits in those Tom Clancy novels.


Supreme Court Sides with Texas

Filed under: Constitutional Law,Court Decisions — DRJ @ 1:06 pm

[Guest post by DRJ]

No, this isn’t an NCAA basketball thread although I’m sure the ‘Horns would welcome assistance from any source. Instead, this post is about Texas death row inmate Jose Medellin whose Supreme Court case was discussed last fall here and here.

Medellin was convicted by a Texas court for the brutal 1993 rapes and murders of two young girls and sentenced to death. Medellin appealed, unsuccessfully, and in 2003 filed a claim in international court asserting a violation of international law. Specifically, he claimed that as a Mexican citizen (born in Mexico but residing in the US since age 6), he was not allowed to consult with the Mexican consul after his arrest as provided in a treaty implementing the 1963 Vienna Convention. In 2004, an international court ruled that Medellin’s conviction and those of 50 other Mexicans on death row in several states violated the treaty provision and recommended new court hearings for each.

President Bush directed the DOJ to support Medellin’s appeal in the Supreme Court because Bush had agreed to abide by the international court decision and ordered states to comply. He contended that state courts were bound by his order. (Bush also issued an order that ended US recognition of the provision, but it did not apply to Medellin’s case or to the other Mexican inmates whose cases predated Bush’s order.) Texas argued that the President could not override contrary state court decisions and laws.

Today, the US Supreme Court ruled in favor of Texas:

“The president may not “establish binding rules of decision that pre-empt contrary state law,” [Chief Justice John] Roberts said. Neither does the treaty, by itself, require individual states to take action, he said.

Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented. The international court judgment should be enforced, Breyer wrote. “The nation may well break its word even though the president seeks to live up to that word,” he said.

Justice John Paul Stevens, while agreeing with the outcome of the case, said nothing prevents Texas from giving Medellin another hearing even though it is not compelled to do so. “Texas’ duty in this respect is all the greater since it was Texas that — by failing to provide consular notice in accordance with the Vienna Convention — ensnared the United States in the current controversy,” Stevens said.”

I’ll leave it to the Constitutional scholars to parse the Medellin opinion. What strikes me is how predictable these positions were, albeit in hindsight:

Bush invoked and stood firmly behind executive power, something he emphasized even before he was elected President. Chief Justice Roberts recognized the tension between the powers of the federal government and the states and (apparently) meticulously analyzed the boundaries of those powers and of the treaty.

In the dissent [pp. 50-et seq], Breyer focused on the importance of international law, as he did in joining the majority in earlier death penalty opinions and in this article. Souter and Ginsburg joined in the dissent.

Finally, beginning at p. 44, Stevens saw “great wisdom” in Breyer’s dissent but nevertheless concurred in the majority decision. He concluded that the treaty was not self-executing and thus was not incorporated into domestic law. However, he seemed displeased with Texas for putting the US in breach of an international treaty and urged Texas to grant Medellin a hearing even if one was not required in order to balance the “honor of the Nation” against the “modern cost of compliance.” (In an argument that shows he clearly doesn’t know the Texas audience, Stevens also noted that “… the cost to Texas of complying [with the notice provision] would be minimal … *** It is a cost that the State of Oklahoma unhesitatingly assumed.”)

Medellin committed his brutal rapes and murders when he was 18. He’s 33 now. Having exhausted his appeals, the State of Texas plans to ask for an immediate execution date as soon as the Supreme Court decides the Baze lethal injection case.


My Letter to the Readers’ Representative Regarding the Error in the John McCain Hit Piece

Filed under: Dog Trainer,General,Terrorism,War — Patterico @ 12:01 am

I have sent the following e-mail to Los Angeles Times Readers’ Representative Jamie Gold:


A March 28 article titled “John McCain is betting big on Iraq” states:

Postwar investigations, including the 9/11 Commission Report and a report this month financed by the Pentagon, found no evidence of a “collaborative relationship” between Al Qaeda and the Iraqi regime.

The use of quotation marks around the phrase “collaborative relationship” indicates that both reports used that phrase. But neither the 9/11 Commission Report nor the Pentagon report contains the phrase “collaborative relationship.” Here are links to the 9/11 Commission Report and the Pentagon report. Neither uses the phrase “collaborative relationship.”

I think your writer may have been quoting a “staff statement” prepared by the staff for the Commission, as distinguished from the final report by the Commission itself. The distinction is meaningful. The New York Times quoted Commissioner Kean as saying of the staff statement: “This was a staff statement, and we’ve had commissioners who have disagreed occasionally with the staff statements, and this may be one of those occasions.”

And indeed, the conclusion regarding Iraq/Al Qaeda contacts was worded differently in the Commission’s final report, which took care to refer to an absence of “collaborative operational relationship” — while the report listed many contacts between Iraq and Al Qaeda.

The inclusion of the word “operational” in the 9/11 Commission Report was a critical difference that reflected the opinion of many Commissioners that there was indeed a series of contacts between Iraq and Al Qaeda, that, in the words of one, amounted to a “cooperative relationship” — just not an operational relationship that culminated in the 9/11 attacks. For a full explanation of why the use of the word “operational” in the final report is critical, you can read my post here (and the links therein).

I suggest a correction along these lines:

A March 28 article stated that: “Postwar investigations, including the 9/11 Commission Report and a report this month financed by the Pentagon, found no evidence of a ‘collaborative relationship’ between Al Qaeda and the Iraqi regime.” In fact, that phrase did not appear in either report. The phrase appeared in a statement prepared by the staff of the 9/11 Commission, while the 9/11 Commission’s final report alluded to the lack of a “collaborative operational relationship.”

Put simply: the article asserts that two reports used a phrase that neither actually used. I think a correction is in order.

Yours truly,

Patrick Frey

Previous post here.

I’m not even bothering with the bit about “Bush administration claims that Hussein appeared linked to the Sept. 11, 2001, attacks.” I’m sticking with the clear, provable falsehood.

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