Category: Politics


The Meaning of “Well Settled Law”

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: “well settled law.” One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term ‘well settled.'”

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito’s equivocation as merely a product of confusion over terminology. Indeed, Alito’s hesitation to accord Roe the status of “well settled law”–he finally said only that it must be accorded “respect” as “very important precedent”–cannot be understood in an internally coherent way.

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A Tale of Two Blogospheres: The Red and the Blue

politicalparties1a.jpgI’ve been quite surprised that the vast majority of the larger blogs linking to us at Concurring Opinions have been conservative blogs rather than liberal ones. After all, many (though not all) of us at Concurring Opinions consider ourselves to be liberals. Despite criticisms of the conservative blogosphere as an echo chamber, I’ve been impressed that conservative bloggers are linking to us. Many of us have tried our best to be balanced rather than partisan, and perhaps this is why we’ve received many links from the conservative blogosphere. What continues to strike me as a bit odd, however, is the great disparity in links from the prominent conservative blogs versus the prominent liberal ones.

This phenomenon got me thinking more broadly about the liberal blogosphere versus the conservative blogosphere. With the caveat that this is just my personal impression, I think that the conservative blogosphere is much better integrated in its intellectual and activist dimensions. For example, the conservative political blogosphere seems much more deeply connected to the legal blogosphere, where political bloggers seem to more routinely tap into the expertise of law professors about various legal issues. Indeed, many of the prominent political bloggers in the conservative blogosphere are academics; fewer of the liberals are.

This strikes me as representative of a larger difference between the Left and Right. The Left must better connect its intellectual and activist sides. Indeed, an article about Markos Moulitsas Zuniga, the founder of Daily Kos (one of the largest and most influential liberal political blogs) states:

Moulitsas is just basically uninterested in the intellectual and philosophical debates that lie behind the daily political trench warfare. By his own admission, he just doesn’t care about policy.

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What Else?

question.jpgCongress is gearing up to investigate the NSA domestic surveillance program. That’s better than Congress doing nothing—but it doesn’t give much reason to cheer. The NSA program is only one of a recent series of disturbing revelations about the Administration and the war on terror: detention of suspects with little or no process; secret prisons in Europe; people being hooded, stuffed in planes, and delivered to foreign governments; and, quite possibly, the use of torture.

If Congress is serious about checking Presidential powers, it needs to look far beyond what it already knows has taken place.

Rather than simply get to the bottom of domestic surveillance, Congress needs to get a better handle on what else the Administration is doing and plans to do in this war.

At this point, very little seems unimaginable. Are there, for instance, American citizens held secretly in this country or abroad? What kinds of interrogation techniques have American officials practiced and what are they trained to do? What plans are currently in place to get information from a captured suspect in the event of a ticking bomb? Are other agencies involved in spying without warrants? Have people been removed from the United States without a hearing? Under what circumstances are detainees denied counsel? Has the government asked anybody to give up U.S. citizenship in exchange for dismissing criminal charges?

Have family members of a suspect been taken into custody to exert pressure on the suspect? Has there been spying on leaders of political organizations or members of government? Who will be rounded up in the event of another attack? Is there a plan for martial law?

Congress has the resources to explore these kinds of issues. Congress might of course—and, to a large extent, it probably should—conduct its investigation without revealing what it finds to the general public.

But the bottom line is this: when all is said and done, history must show that whatever happened in the war on terror, Congress knew about it and gave approval.


Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad’s view of Israel and the holocaust, contains the following paragraphs:

“Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail,” [a news organization] quoted Ahmadinejad as saying.

“Although we don’t accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?” he said.

“If the Europeans are honest they should give some of their provinces in Europe — like in Germany, Austria or other countries — to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it.”

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they “say.”

It isn’t as though Reuters doesn’t believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad’s earlier “call in October for Israel to be ‘wiped off the map'” “sparked widespread international condemnation.”

“Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran’s 1979 Islamic revolution.”

Jews trace their roots in Israel back to Biblical times.


Memory on the Sewanee Campus

sewaneeflags.jpgIt doesn’t take a lot of skill to predict that this New York Times article about the controversy over what we used to call “The University of South” and what’s now called “Sewanee: The University of the South” is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the “Sewanee” part of its name. Alumni have been concerned (to put it mildly) that it’s not just about the name, however. They think there is a lot more at stake on the campus–like how the University deals with its distinguished and complex history. At the center of that history is the University’s founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

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Is this right?

A refrain I sometimes hear is that “there are no conservative organizations for law students, except for the Federalist Society.” For one recent example of this, see this comment at Confirm Them:

Most law schools (I went to a top 25 school) have a large, strong liberal activist groups which include the ACLU groups, Gay-Transgender groups, Environmental Groups, American Constitution Society (the anti-Federalist Society), and various “Human Rights” groups. The ONLY conservative group on most law campuses is maybe the Federalist Society and a Republican group here or there.

I don’t think this is correct, based on my own observation. At Columbia when I attended, there was a number of conservative or conservative-leaning student organizations: Christian law student society, Catholic law student society, LDS (Mormon) law student society, pro-life organization (Coalition for Life), plus the Republican student organization and the FedSoc. And I may be forgetting one or two. In any case, there’s at least six conservative organizations at that bastion of conservative thought Columbia University.

My current employer is Thomas Jefferson law school. It’s a school that an observer would almost certainly characterize as leaning left. Again, there is more than the FedSoc. TJSL has a Republican group, a Christian law student society, and the FedSoc; it also has an LDS law student society in the process of organization. (I know, because I’m their faculty advisor).

Over the tiny sample size that I’m particularly familiar with, the accusation that the FedSoc is the only conservative organization on campus is quite clearly not true. But perhaps my own lack of data is hindering me here. Are there any schools where the FedSoc is truly the only conservative voice on campus?

(Note — The broader argument — that left-leaning student organizations outnumber right-leaning organizations — is true at both of the schools with which I’m familiar, and I see no reason to believe it’s not true in many other schools. I’m speaking to the particular statement, which to me seems hyperbole, that the FedSoc is the only conservative organization at law schools.)


A frightening idea

tenco.jpgFrom a message to a conservative e-mail listserv:

I just received a suggestion from [name redacted] that Judge Roy Moore be nominated to the U.S. Supreme Court. What a great idea. Let’s all call President Bush and our congressmen, representatives and senators, supporting this suggestion.

It’s hard to think of a worse candidate. Whatever one thinks of Alito, Roberts, Souter, Scalia, Thomas, Ginsberg, Breyer, whoever — and I disagree with much about the politics Alito, and with various decisions and statements of each of the Justices — at least it’s clear that they all share a basic understanding of how the rule of law operates.

The same cannot be said for Moore.


1950s and 2000s Conservatism


Last spring I went to a talk by Phyllis Schlafly at the University of Alabama. It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor on a good day. And I left with an “I love capitali$m” poster, which is one of my prized possessions.

Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can’t throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.

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Stealth Legislation

capitol-2a.jpgWant to pass a controversial law? Why debate it? Why discuss it? Why hold hearings about it? Just slip it into a massive budget bill that nobody could possibly vote against. And it gets through.

I don’t know if such a technique has a name, but I’d call it something like “stealth legislation.” It is the tactic of attaching a particular legislative measure to a bill that’s sure to pass. This what is happening with the 9th Circuit split. The 9th Circuit is a large unweildy federal court covering the entire West Coast. For years, proposals to split it up have been discussed, but little progress has been made. That’s because California accounts for the lion’s share of the cases, nobody wants to split off California into its own circuit court, and nobody wants to split California in half or into pieces. The problem has been difficult and there’s been a big struggle over resolving it.

But instead of debating the issue, of resolving it through a legitimate legislative process, some in Congress have chosen a different approach:

Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.

While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.

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Another Note on the Influence of Bloggers

In response to Dan’s post on the influence of bloggers, Oren Kerr and Todd Zywicki chime in here and here. The discussion reminds me of a story that I recently heard. Each year, the Republicans in Congress have a retreat to the Greenbrier resort in West Virginia. This year one of the major themes at the retreat was the role of blogs in the 2004 election. In particular, most GOP Senators think that Daschle was largely brought down by local bloggers who played watch dog to the local, pro-Daschle press by highlighting positions taken in Washington that were to the left of his constituents. I don’t know that this blip has transformed itself into any deep and abiding interest (and hence influence) on the Hill. Still, the message at Greenbrier seems to have been that politicians ignore the blogosphere at their peril.