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Eric writes, "The question was whether The Times went about making its decision [to reveal the Bush administration's violations of FISA] in a responsible way." Marty and David's responses (citing Eric Lichtblau's column) have devastated any suggestion to the contrary (at least to my satisfaction; Eric P. seems unconvinced). I see little to add to their very strong posts on that question.
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else)-despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark. Whether a President ever may legitimately act contrary to a statute is itself a controversial question. I believe the answer is yes, in extremely rare and limited circumstances (circumstances that clearly were not satisfied in the FISA or torture controversies). But how can it be faithful to our system of government for the President to act contrary to federal statutes in secret?!
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If I can wade into the debate on the Times' publication of the Risen & Lichtblau NSA wiretapping story, I think the Times acted relatively carefully but James Risen's subsequent solo book "State of War" was quite reckless. The original story by the Times didn't explain specifically how the wiretapping had occurred, and therefore didn't give America's enemies a roadmap to avoiding future interception. The original story just said that calls and e-mails were "intercepted," which in and of itself doesn't reveal anything about sources and methods.
In contrast, Risen's solo book gave our enemies the roadmap. It explained that the NSA program took advantage of the fact that much of the world's telephone and Internet trafffic happens to be routed through U.S. switches. When passing through the U.S., the book explained, the NSA could and did access the foreign-to-foreign calls that were momentarily inside the U.S. No warrant needed; everything was available and easily vacuumed up.
If you're part of a foreign government or a terrorist group, that's extremely valuable information to have. You now know to avoid any technologies that might inadvertently route communications through the U.S. because the NSA is going to look at everything that touches the States. Want to avoid wiretapping? Stick to communications systems that stay local. The NSA may still be able to get snippets, but they won't get everything.
I don't know how to calculate the long-term damage to our national security caused by this disclosure in Risen's book. But I would expect it was (and will be) enormous.
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David, there was nothing "abstract" about what The Times was doing. Are you saying that any possible harm to national security was negligible, or irrelevant?
I did not argue that The Times should not have disclosed the existence of the program, a question about which I have no opinion, having no access to the relevant facts. The question was whether The Times went about making its decision in a responsible way. Nothing in Lichtblau's account gives one confidence that it did. One ought, at least, to wonder whether the "unseemly competitive motive" of newspapers--you put it so much less heroically than Lichtblau does--should be expected to result in publication decisions that serve the national interest in the post 9/11 world. Let us examine the evidence rather than consult the oracles at the Columbia School of Journalism.
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Eric Posner claims not to be able to discern from from Eric Lichtblau's column just why the Times changed its mind between 2004 and 2005 about publishing the story revealing the Bush Administration's unlawful wiretapping program.
What's the great mystery?
Apparently, in 2004 Administration officials asked the Times not to publish because, among other things, they insisted that there was never any serious legal debate
within the administration about the legality of the program; that DOJ had always signed off on its
legality; that the lawmakers who were
briefed on the program never voiced any concerns; that there were tight controls in place to guard against abuse; and that the program
would be rendered so ineffective if disclosed that it would have to be
shut down immediately.
Risen and Lichtblau questioned these representations at the time, but couldn't persuade their editors that they were untrue. What changed in 2005? Eric P. says that Eric L. "does not really tell us." Really?
Continued at Balkinization
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Perhaps I am tainted by having once been a journalist, but although Eric raises a host of interesting questions that could be plucked from a good Columbia School of Journalism class on reportorial ethics, all of which may be hard to answer in the abstract, I should think that a govenrmental practice of surveilling numerous American citizens that is in direct contravention of an existing federal statute (indeed, a statute that makes such violation a felony); that is justified only by reference to a vaguely worded subsequent statute that provides so little clear support that it must be augmented by a controversial claim of preclusive executive authority entitling the President to act in violation of a congressional enactment; and that precipitates a near mass walkout by the highest levels of the Justice Department because they believe that the law is being flouted woud be a pretty good case for . . . publishing! As for why there was a delay, I do not know. And perhaps The Times can be faulted, if this is Eric's point, for undue delay. But insofar as Eric means to suggest that somehow this information should not or would not have been published by a responsible newspaper weighing all the right questions, and that it was only some unseemly competitive motive that can explain its ultimate decision to print this news, then I for one am glad that in this instance we had an "irresponsible" daily rag up and running.
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According to our colleagues at Trailhead the Clinton campaign has questioned whether Obama lied when he claimed to be a law professor at U of Chicago. Formally his position was Senior Lecturer. In a way this is almost too silly to merit a response: when you’re taking aclass from someone employed by a university you almost certainly call that person “Professor.” Q. E. D. But it is true that law schools make scores of fine distinctions between faculty members, in part because university rules reserve certain titles for people who have passed faculty committees that evaluate scholarly merit. So technically, the Clinton folks are right— “Senior Lecturer” is not synonymous with “Professor,” and inside the ivory tower people care a lot about such titles, just as in the ancien regimes of Europe a Viscount who claimed to a Count was a fraud; a Baronet who passed himself off as a Baron would have been taken to task by those with a legitimate claim to that status.
During my twelve years at Stanford (first as an Assistant, then an Associate, then a Full and now a Chaired Professor of Law if you care about such things) many Adjunct Faculty, Visiting Lecturers, Senior Lecturers, Teaching Fellows and Scholars-in-Residence have referred to themselves as “Professors” when dealing with the media and the general public and no one, to my knowledge, has thought that honor or honesty required us to correct the technical misimpression.
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Elsewhere on Slate, Eric Lichtblau describes the "inside drama" behind The Times' wiretapping story, a drama in which our hero confronts the arrayed forces of the U.S. government, momentarily stumbles, picks himself up, brings the Bush administration to its knees, and learns important things about the world (that government officials sometimes lie, for example).
Many people have wondered why The Times did not report the NSA program in the fall of 2004, when Lichtblau and his colleague, James Risen, uncovered the story, but instead waited until December 2005. If the Times did not believe the administration's national security reasons for keeping the program secret, it should have published in 2004. If it did believe those reasons, then it should not have published in 2005. The only legitimate explanation for its change of heart would have to be some additional information or event that came to its attention between the fall of 2004 and December 2005. What was it?
Lichtblau does not really tell us, but several possible explanations emerge from his account.
1. Reporters had become increasingly distrustful of the Bush administration. Too many of the things it said turned out to be false.
2. The sense of outrage about 9/11 had faded, and reporters were less likely to give the government the benefit of the doubt.
3. Over the course of those 13 months, the reporters learned that the program was unlawful.
4. Risen decided (on his own?) to publish the story in a book he was writing. The Times did not want to be scooped by its own reporter.
The first and second explanations have some psychological plausibility, but, to my mind, they are not persuasive. Anyone with any knowledge about how the U.S. government has behaved in the past, in normal times and during emergencies, could not possibly believe that government officials are always to be trusted. Could The Times' reporters really have been so naïve? More likely, The Times' editors feared a public backlash if The Times expressed excessive skepticism about the government's motives in the wake of 9/11. Actually, more than three years after 9/11. That hardly speaks well for The Times, either.
As for the third explanation, Lichtblau says that he and Risen already knew about internal Justice Department disagreement about the legality of the program in the fall of 2004. And The Times did not need to use the legal issues as an excuse for publication; it reported the SWIFT monitoring program without claiming that this program was of doubtful legality. (Ironically, as Jack Goldsmith relates in his book, The Terror Presidency, government lawyers who had expressed doubts about the legality of the program had won the day, and were working to put the program on sounder legal footing, long before the story was published.)
This brings us to the fourth explanation. Can it really be the case that The Times was forced to publish by a reporter? One can only feel queasy. The actual decision to publish was, in effect, made not even by The Times' editors, who might be expected to take a broader view of things, but by a single reporter acting on his own? Is the drama supposed to be a comedy, or a tragedy? ("'You sure you know what you're doing?' I asked finally. He shrugged." Mamet? Pinter?)
So Lichtblau does not give us an account for the delay that is both plausible and appealing. Lichtblau also never mentions whether he and his editors discussed the issues that would seem most obviously pertinent to the question of publication: was the program effective?; would it have been seriously undermined by its disclosure?; was it illegal?; and, what should reporters reasonably believe, given their limited knowledge of what is going on? Surely his editors thought about these things. Or was it just a question of PR: will people praise us for our brave reporting or condemn us for undermining national security? Failing to address these questions in his account (he dismisses the national security worries as "clichés" rather than explaining why he disbelieved them), Lichtblau gives the impression that he is and was indifferent about what the answers might be. Was it just a matter of skewering the government that had lied to him, national security be damned?
Several questions are raised by this episode. Suppose The Times or some other newspaper stumbles upon yet another government counterterror program that has been kept secret and whose value depends on secrecy. One question is a matter of substance: if the value of a counterterror program depends on its being kept secret, under what circumstances should the media nonetheless report it? As long as the program has any news interest (as it always will)? Only when the program might, if misused, cause harm to Americans or others (as it almost always will)? Only when there are legal doubts about the program (as there often will be)? Is the effectiveness of the program relevant, and does the administration have the burden of proving the effectiveness of a program (how, exactly?) in order to persuade a newspaper not to publicize it? Lichtblau does not address any of these questions; indeed, he gives the impression that he has never even thought about them.
The second question is the Who Decides question. Lichtblau says that the Times was spurred into action when it heard that the Bush administration was thinking of seeking a Pentagon Papers-style injunction against publication. Of course, the press has expressed longstanding opposition to prior restraints. However, in an ideal world, wouldn't it be better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality? How was The Times to know whether the secret program was lawful or not? And how was it to evaluate its effectiveness and the importance of continued secrecy? Indeed, a trial was held; the administration made its case. It's just that The Times was the prosecutor and the judge. And whatever the editors of The Times might have really thought, their hand was forced by a single reporter acting on his own.
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In an incredibly opaque speech to the U.S. Chamber of Commerce yesterday, Treasury Secretary Henry Paulson implied that he would seek "the same type of regulation and supervision" for investment banks as that which exists for commercial banks. He made the comment while defending the Fed's moves to front $30 billion to support the rescue of the ailing Bear Stearns investment bank. But, Paulson stopped short of encouraging a massive regulatory push -- saying that "recent market conditions are an exception from the norm" and that "bank regulation . . . is fundamentally different from non-bank regulation."
It's not clear yet how much legal or regulatory change is coming to emerge from the Bear Stearns crisis, or the sub-prime mortgage meltdown. But a front-page article ($) in Monday's Wall Street Journal speculated these crises would bring a tectonic shift in the way American law treats business:
The idea that less regulation is better for the economy has held sway in Washington since the Reagan administration. Now that consensus is crumbling, posing a potentially costly challenge to business no matter who wins the White House in November.
The crisis in the nation's housing market, the recent turmoil on Wall Street and a series of safety scares involving food, drugs and toys are driving both political parties to reconsider how much companies and markets should be relied upon to police themselves.
Even under the pro-business Bush administration, it appears the question isn't whether the government will enact tougher rules for various parts of the economy, but just how much stricter those rules will be. The new climate has some business groups girding for battle against what they fear could be onerous new requirements.
"We're in for a potentially significant regulatory response," said Glenn Hubbard, dean of Columbia University's business school and a former chief economist for the Bush White House, referring to the credit crunch and its impact on financial markets. "The hope is we won't overreact."
Today's reactions ($) to Paulson's speech seem to confirm that such a tectonic shift is underway. I think some regulatory improvements are in order, but like Prof. Hubbard, I think there's also a significant risk of overreaction here. And more broadly, I worry that we might be looking to law as a false panacea for all that ails American capitalism today -- and specifically, what afflicts the mortgage market. There are limits to what the law can accomplish, and I don't know that re-regulation or toughened financial laws will do what we want here. What do you think -- is this tectonic shift away from deregulation a good idea? What is the proper role for law in America's financial markets?
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Jack's got it right when he writes: "
In short, consultation of foreign or international sources will not inevitably nudge interpretation of a constitutional term to the left or to the right -- any more than would consultation of historical context or contemporary legal practice in the United States. That fact counsels shifting away from blanket condemnation of foreign consultation, and toward demands that it be conducted with no less methodological rigor than is expected in historical exegeses and 50-state surveys.
* Here's Mr. Dooley on interpretation: "I niver r-read th‘ constitootion an I niver seen anny wan that r-read
it, but it must be all right, for an’ because ‘twas made wan hundherd
years ago or more be min that is now dead an’ in their graves. ... Could thim pathriots do wrong? Did they know what was best f’r
us afther fightin’ f’r our liberties? I should smoke a ham."
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Douglas W. Kmiec
So many kind and thoughtful people have taken the time to write or comment upon my recent endorsement of Sen. Barack Obama for president asking for additional explanation that it has become impossible to answer each individually, so with great respect, but far less time than I would like, please accept these supplemental thoughts as an expression of gratitude to all who wrote in agreement or disagreement, and with civility.
As many know, I was first attracted to government by Ronald Reagan, who lives in my memory as a great leader and an inspiring communicator. Sen. Obama has these gifts as well, but of course, mere rhetorical flourish without defensible substance would be worth little. Is there more to Sen. Obama? I believe there is. President Reagan often said his proudest achievement was making America feel good about itself again. Sen. Obama is trying to give us genuine reason—good reason—to have that feeling again. Indeed, he may have already partially succeeded. Having taught several generations of students over 35 years, I have never seen young people more alive and interested in the political process. His witness is encouraging them to look to civic and public involvement as a way of finding their own purpose—a purpose that they intuitively want to be in service to others.
How else do I perceive Sen. Obama restoring the American ideal?
By saying to the world, we intend to hold ourselves to international standards of decency and justice. (I note that Sen. McCain picked up part of this theme yesterday in a speech here in Los Angeles—good for him. Sen. Obama's influence is resonating well beyond me and my students.)
By honoring the memory of those who died on 9/11 (and the 4,000 men and women of our armed forces who have perished in Iraq) with the honest assessment that our national safety is not enhanced by fighting the wrong war at a tremendous cost of life and resources.
By saying to the average working person in America, your work matters, and it will be compensated at a family wage; your retirement will be safeguarded from corporate fraud and manipulation—be it by cooking the books a la Enron or the legal abuses of a shadow banking system that by profligate lending practice has precipitated the mortgage meltdown and the bail-out of Bear-Stearns.
By recognizing that we create our own immigration problem by failing to fix an immigration system that neither safeguards national security nor permits genuine unmet labor needs to be filled on unexploited terms.
By saying to a nation of consumers that happiness is not found in mindless consumption and that we have an obligation to better stewardship of the environment and to develop alternative sources of energy—for our own health and well-being and that of our children and grandchildren—and, of course, as a matter of national security as well.
By saying to his fellow candidates for president in both parties, let's end the name-calling; the politics of division based on race—understanding that we have had enough of black anger pitted against white resentment, that we indeed must say to those who seek office on those divisive terms, "Not this time." It is better for us to understand that failing schools are failures for all concerned—whether you're the student graduating without knowing how to make change or the customer who is shorted.
By understanding the significance of faith as a source of meaning in the life of our nation and our individual lives; that religion and freedom depend on each other (something, by the way, both the senator and Mitt Romney said just in slightly different phraseology). Freedom is enhanced by the "habits of the heart" and virtue nourished by religion, and at the same time, religious faith only matters if it is not coerced. None of us is entitled to have our personal faith enacted into law, but we can expect the law to accommodate, not grudgingly at the point of a lawsuit, but empathetically as a matter of good will and common sense all religious practices that do not endanger the public order.
And should he be elected president, by saying to his co-equal branches, I understand this is a constitutional system, and I have an obligation to use power wisely and not look for every opportunity to expand it or use it foolishly, as in the dismissal of my own U.S. attorneys with little thought and even less justification.
Will the election of Sen. Obama accomplish all these things?
Perhaps not, but like the Gipper used to say to us: If not us, who? If not now, when? Many of our allies are watching us, and while we should never pursue a course to win the approval of others, when the course we have followed proves not to be true, we must change direction if we are to have any hope of reaching our proper destination. The sentiment reported by those who live and work in capitals around the globe is that Sen. Obama's successful campaign to date, in itself, has signaled to the world that—well, to pick the Reagan phrase again—it is "morning in America" because
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the America they knew as an ally committed to peace and freedom and not hazy, ill-conceived forms of pre-emptive war is back;
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the America they thought was the gold standard for the rule of law is back;
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the America that could recognize its own shortcomings, be it racial or gender inequality, and right itself was back.
I am not quite as prepared as the readers of the foreign press to be quite this rejoicing this early. This is especially true since I disagree with Sen. Obama, the partisan elected official, in many, many ways. But his having campaigned not as a partisan but as a unifying force, my endorsement is best seen as a public acceptance and friendly reminder of the covenant his campaign is making. Like a restriction running with the land, the endorsement follows the covenant. If the covenant is breached in campaign or in office, the endorsement will be renounced more loudly than it was given. In short, I am counting on Sen. Obama the president to keep Sen. Obama the presidential candidate's word—namely, that he intends to pursue policies aimed at transcending the politics of hate and division.
That, for example, on abortion, which I know to be a grave moral evil and that I understand Sen. Obama to see as a matter already legally settled, that he will nonetheless work to reduce the incidence of the practice by what he has stressed—the importance of families and churches conveying the importance of "having young people show reverence toward sexuality and intimacy."
That on the definition of family, we will not undermine the significance of responsible procreation for the long-term health of the nation even as we work to end invidious discrimination and misunderstanding toward homosexuals in our society.
That when there are calls for government involvement, the first thought won't be the bigger the government the better, but rather the very thoughtful questions Sen. Obama has already raised during his campaign such as: When should government intervene? And what can it usefully do?
And especially because—in his precampaign partisan role—he voted against two individuals who I know to be the very definition of "impartial judge" that we will work together to keep politics out of the courts; that just as some states have successfully developed merit systems for judicial appointments, both parties will stop seeing the judicial branch as the ideal placement for those who will advance our favored political philosophy regardless of the law as written.
Let me end this already too long explanation by saying my endorsement is not about animosity toward John McCain or Hillary Clinton. I was a McCain backer in 2000, and as the father of five, including three daughters who are pursuing professional lives, I respect Mrs. Clinton's desire to break the glass ceiling.
It's just that their public moments—like mine—are past. John McCain's understanding of warfare and national security is an extension of "the greatest generation," but it is no disrespect to say that just as "shock and awe" did not prevail in Iraq, Sen. McCain's conceptions of military deployment are ill-suited to meeting the far more nimble and insidious nature of the present terrorist threat. Again, his most recent address suggesting a "league of democracies," while not without its difficulties in terms of running the risk again of only dealing with our friends, shows a glimmer of the independently minded, pre-Bush McCain, and I urge him to continue to develop thoughts that take him beyond outworn models of base deployments that we cannot afford and that in some circumstances provoke more than secure.
And Mrs. Clinton is to me not advantaged, but disadvantaged, by her previous time in the White House. The ranks of capable, intelligent, well-prepared women who could serve as president are long and deep. In all seriousness, and with apologies to the Adams and Bush families, as I understand democracy, we ought not to return to those quarters someone who—directly or indirectly—will merely attract the ideas and personnel of the past.
Taking a leave of absence from my GOP home was not my first choice. As Ronald Reagan said, he didn't leave the Democratic Party; it left him. I feel the GOP left me. Some do not see the trajectory from Romney to Obama as plainly as I do, and it would take an equally long letter to elaborate, and I will spare every reader who made it this far that burden. Let me just say, Gov. Romney well understood the significance of family, faith, and fiscal responsibility. In too many ways, the present administration was the most fiscally irresponsible of our lifetime, prayed aloud but ignored the teachings of faith to seek peace and pursue war only when warranted and, in so doing, jeopardized the well-being of every family in America. I love my family, my faith, and my country too much to entrust the next four years to any candidate who would stay upon a course that has been so badly misdirected.
My gratitude, again, to all who have written.
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Two thoughts in response to Marty's provocative questions:
First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide with that of the appointing president. While the DNI is higher up the food chain, I suspect the office could be structured so as to look pretty similar. The more formal one makes the DNI's independence—in other words, the harder his removal is for the president to effectuate—the more difficult the question becomes. But at a minimum, it should be possible to create an office with a term of years and a strong norm against removal for reasons other than misconduct.
All of which seems to me a perfectly dreadful idea, and I'm frankly a little bewildered by its attraction for the people most offended by the intelligence policies of the current administration. After all, having a long-term occupant of that office would ensure continuity across administrations in an area in which there is simply no political consensus as to the proper posture of the executive branch. If you imagine it existing now, it would allow Bush to appoint Obama's DNI. The reason the FBI director's term of years is defensible is that Americans basically agree on the apolitical nature of the investigative function and want to insulate it from the shifting political winds. A similar consensus, I suppose, exists for much intelligence collection and analysis. But no such consensus exists for a lot of intelligence policy over which the DNI has charge. Would we really want Bush to appoint Obama's point person on warrantless wiretapping, renditions, and interrogation?
An Obama administration would presumably handle a lot of things within the DNI's purview differently from a Bush administration. And the Republican who runs against Obama four years from now, should Obama win in the fall, would presumably criticize and promise to change Obama's intelligence policies. If we make the DNI's position apolitical, we greatly reduce the capacity for political debate over and change in intelligence policy.
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(Cross posted at Balkinization)
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Jack, to answer your questions, as pithily as possible, I understand judicial restraint as underenforcement of constitutional norms, not the position that there are few or no constitutional rights or only those constitutional rights that reflect my political preferences. And you are right to point out the difficulty of making comparisons to foreign constitutions; a conversation for another time, perhaps. But enough about me! I'd rather hear about your views than talk about mine, which are warmed-over leftovers of the work of the constitutional law professors I cited earlier.* You seem to have something new to say.
In earlier posts, you said, or seemed to say, that if Dahlia doesn't like the way that Supreme Court justices "invent rights," then she should start or join a social movement ("If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time."). This puzzled Dahlia, who has been operating under the assumption that part of her job was to spot errors and inconsistencies in the court's decisions: "If you really mean it that ‘social movements' will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. ... So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold."
In our latest exchange, I tried to make a case for judicial restraint. The argument was a normative argument (judicial restraint is good) but it also depended on an empirical claim (good for both political sides, so they can, in principle, agree to it). Your response in your second-to-last post (yes I did fall down the rabbit hole into Balkinizationland) was:
Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. ...
If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric's) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.) ...
Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn't always caught up with the reality.
And a great deal more in this vein, very much in the spirit of your response to Dahlia. If it is true that judges will (for example) exercise judicial restraint if and only if (?) changing substantive agendas favor that posture, then there isn't much point in discussing whether judicial restraint (however defined) is good or bad, is it? Or in encouraging judges to exercise it? Or in encouraging elected officials to seek out judges with this inclination? Nor does there seem to be much point (Dahlia's concern) in criticizing judges for deciding cases inconsistently with their professed judicial philosophies, other than, perhaps, to point out to them that they have deviated from party orthodoxy. We can do no more than wait for substantive agendas to change.
This is certainly one view. The decline of judicial restraint was not only determined; it was overdetermined. And if it should reappear, that would be determined or overdetermined as well. Am I to be faulted for thinking that you were caught in the snarls of the determinacy paradox? I am glad that you reject this view.
But then, what is your view? I am trying to reconcile the following half-understood fragments. 1) A suggestion that Supreme Court justices do politics; does that mean narrow partisanship is unavoidable, or is it possible that justices could be made to see that some judicial philosophies are better, for the public and for themselves and their parties, than others? 2) Is the version of originalism that you have been peddling such a philosophy? Or is it just of theoretical interest (the "right" way to interpret the Constitution even if no judge ever adopts it)? Or perhaps a strategy for liberal or progressive judges who would like to hoist conservatives by their own petards? 3) How do these ideas fit with your political science style discussions, which emphasize the importance of social movements, politics, appointments, and the like? Easy on the humor please: we are literal-minded here in flyover territory.
*Jack's Balkinization co-blogger Mark Graber notes correctly that in my earlier post I was referring only to law professors who have advanced the views I am defending here. For the work of political scientists in a similar vein, see his post here.
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In the New York Times this week, Adam Liptak takes a long overdue and somewhat tepid look at the fuzzy math Justice Scalia used in his concurrence in Kansas v. Marsh when he concluded that "The rate at which innocent people are convicted of felonies is less than three-hundredths of 1 percent - .027 percent, to be exact". Scalia sleeps well knowing our system works so brilliantly.
The problem, of course is that .027 percent is a hoax, and reading the piece, I was stuck once again that a justice generally considered to be so bright could get something this important so fundamentallywrong. But one need only look at the study Scalia cites (by Joshua Marquis, a stalwart of the prosecutorial lobby) to understand the error of his ways.
Marquis came up with the number that Scalia adopted much like a toddler solving a problem in a kindergarten math workbook: He took the total number of exonerations, (north of 200 now) picked a gratuitous multiplier (10 purely for rhetorical purposes), and then divided by 15 million—the total number of convictions during the period of years he considered.
As I've previously pointed out, here's why that's a ludicrous methodology:
Comparing exonerations to felony convictions is like arguing that the Ford Pinto was safe because compared to the total number of automobiles sold in the United States, not many of them blew up. The proper way to determine the failure rate of the Pinto is not to use the total number of cars sold as the denominator, but rather the number of Pintos sold. Likewise, the denominator in Marquis' fraction shouldn't be the 15 million felony convictions over the past 15 years, but rather the number of similar cases in which innocence is actually disputed.
Marquis' most glaring error is his failure to acknowledge the fact that most felony arrests aren't contested. In fact, 95 percent of them are resolved by plea rather than trial. Thus in 19 out of every 20 felony cases, there is no contested issue of guilt and no real claim of error.
Only trials in which someone is convicted while maintaining his innocence should be consideredin computing an error rate. Of Marquis' 15 million felony cases, 14.25 million were pleas. When the denominator in his fraction is changed from 15 million to 750,000, the error rate jumps from the arguably ignorable 3 in 10,000 to more like 50 in 10,000.
And Marquis's numbers become even more disturbing with further analysis. Because of the overwhelming demands involved in reinvestigating a crime with an eye toward exoneration, it is almost exclusively defendants sentenced for rapes and murders whose cases get scrutiny from groups like the Innocence Project. The chances that a drug defendant is going to interest them are virtually nil. Thus the only people who have any meaningful access to the possibility of exoneration are a tiny subset of criminal defendants. Murders constitute only 0.8 percent of all felony cases,and rapes less than 2 percent. In other words, less than 450,000 of Marquis's 15 million felony convictions came in cases where the defendant has had a real shot at exoneration.
It is true that murder cases go to trial far more often than run-of-the-mill drug sales or check forgeries. In fact, some 44 percent of murder cases actually go to trial, with an average conviction rate of about 85 percent. But even taking this into account, of the 150,000 murder cases in Marquis's 15 million, only 66,000 homicide defendants maintained their innocence through a trial, of which just over 56,000 were convicted. Using similar trial and conviction rates for rapes yields somewhere south of 200,000 contested convictions in serious cases.
So what are the real numbers? Liptak cites a small Virgina sample of closed rape files from 1973 through 1988, which suggested a false conviction rate of between 6 and 9 percent. Another study, (by my colleague at Seton Hall, Michael Risinger) which looked at death row DNA exonerations among defendants sentenced to death between 1982 and 1989 for murders involving rape suggested that at least 3.3 percent were innocent.
A few percent may not sound like a lot, but imagine a failure rate of just 1 percent elsewhere in our society: If 1 percent of heart stents failed upon implantation, an additional 100,000 people a year would die, If commercial jets had a 1 percent chance of crashing after take-off almost 400 planes a day would fallout of the sky. Quite simply 1 percent is not an error rate we are be willing elsewhere and it's not ok to accept it in our criminal justice system. Of course as I've just finished explaining, the actual number is almost certainly much higher than that anyway.
In the end, whether the actual number of innocent people wrongly convicted is 3 percent or 9 percent, what is certain is that many thousands of innocent people are languishing in our nation's prisons tonight. And that is not a number Justice Scalia or anyone else should be willing to accept.