Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Monday, November 21, 2005

New Favorite Site, and Why

New Favorite Site.

Just one reason why:

Sir Walter Scott: "A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect."

Indeed. I flatter myself that I'm an architect. And I dread encounters with mechanics and masons. Though often the architect can take advantage of them in the breach, it's not terribly sporting, and it's never much fun.

Of course, brute force sometimes is more effective. Then, I'm sure, the mason or mechanic finds the architect's feeble efforts equally tedious.

The questions are: When is the T-square mightier than the hammer? And where can I hide when it isn't?

Hilzoy's Failures of Will

Hilzoy, at ObWi, has written one of the best posts I've ever read in the blogosphere, and one of the most sagacious discussions of the Bush administration dynamic in the run-up to and prosecution of the war in Iraq. If you read nothing else this week, here or anywhere else, regardless of your political commitments, I urge you to take the time to read her long, wonderful post. Truly.

It's painful, and its truth, as with any reasoned discussion of a complex matter, is subject to debate. But no one can realistically question its rigor, sobriety, and facial legitimacy as an orientation toward the State of Things. Those in favor of the war, of "staying the course," as such, have a tall order before them in responding in kind. But I'm not holding my breath that anyone will try. No one's bothered to compliment the American public by mustering such a powerful argument in defense of the necessity of the war before. Hell, even a rambling effort not nearly as rigorous as Hilzoy's but at least as wordy would be a nice improvement over the pithy apothegms and bromides that have passed for a rationale to date.

Just go read, really.

ESSENTIALLY IMMEDIATE UPDATE: Unsurprisingly, Von, who holds a different view, has countered with a thoughtful post rejecting Hilzoy's analysis. So, at least at ObWi, always notable for its diversity of viewpoints and subtlety of thought, there is a deeper endeavor to support the war in itself. It's worth noting, however, that Von, at the outset of his discussion, acknowledges that notwithstanding his support for the war, he voted for Kerry in 2004, a "boob," due to Bush's negligent prosecution of said war. Which to me seems at least in part to concede the heart of Hilzoy's post concerning the electorate's failure of will in reelecting a man president largely based upon his prosecution of a war his behavior manifests an inability to win. (It's also worth noting that their respective analytic frameworks differ critically: while Hilzoy makes clear that she neither supports nor opposes a withdrawal; Von, on the other hand, strenuously insists that we must remain. The distinction is subtle, but has notable effects on their respective rhetorical strategies. I feel as though, at least in some sense, they are talking past each other.)

Friday, November 18, 2005


A series of unfortunately flawed hypotheses:

1. Waking with an eye-crossing hangover is no excuse for not riding one's bike to work.

2. Waking with an eye-crossing hangover on a blustery, snow-flurrying, sub-freezing morning with a wind chill in the teens (for those fortunate enough to be standing still) is no excuse for not riding one's bike to work.

3. In the shower, time stops. Hence, no matter how long one stays in the shower, one emerges at the same time.

3.1. Also, hot water leeches the residual alcohol from one's bloodstream at a rate defined by individual body chemistry, hence, were one to stay in the shower indefinitely (a matter of no consequence, in light of (3)), one would achieve a state of eye-straightened unhungoverness.

3.1.1. A tall glass of cold skim milk, washing down multi-vitamin and zinc tabs, has memory eliding properties that don't so much erase as they do take the edge off one's recollection of cross-eyed hungoverness preceding the therapeutic shower envisaged in 3.1. (And under (3), recall, it's not late yet. No seriously, just don't even look at the clock; wherever the hands are, they might as well spell out "EARLY.")

4. I am faster to work, door to door, when I ride in than when I bus, no matter how strong the wind and how weak my resolve.

4.1. And this is not because I refuse to learn the bus schedule in my new neighborhood.

5. The 90-Degree Turn Theorem of Windproofing: The more times wind has to change direction on its way from the outside of one's garment to the inside of one's garment, the less wind will penetrate to the skin. Hence, layering summer weight jerseys is an effective way to combat wind. To the extent this is true, it might have something to do with some Bernoulli-esque principle or another, but I prefer to think of it as a function of frustration. I like to imagine the wind frustrated. Especially when it feels as though the wind consists of evil nanomachines bearing straightrazors. Frustrated evil nanomachines. With nanostraightrazors.

6. Smacking someone's side-view mirror with one's messenger bag while on a bike comes with different ethical obligations than doing so with one's car, both of which differ from the ethical obligations that attend, say, hitting said mirror with a baseball bat.

November is the cruelest month. In fact, that's (7).

7. November is the cruelest month.

Softshell, skullcap, lobsterclaw gloves, neoprene socks -- I'm talking old skool, bitches. Still, all the technology in the world doesn't brace me for the view from the kitchen windows, first one lonely flake eddying idly at eye level above the patio, a scout, an invisible all-clear gesture perhaps, and then others, a few, then too many to count, swirling. I'm drinking a tall glass of milk, because it seems a more appealing idea than my usual orange juice.

In the hall an uncommonly complicated ritual of zipping and cinching and tucking, adjusting, using up all that time I didn't use in the shower. Finally outside, somewhat surprised at how mild it initially feels, a momentary suspicion that I've overdressed, which lasts precisely as long as it takes me to mount Sue and take off.

She's happy, quiet, smooth. I'm bundled, bound, my lobster claw hands fumble a bit with the bars, but the last time I wore them I had gears and brakes to worry about. This time all they need to do is hold a bar; they don't interfere.

Lingering at the bottom of the will for the light to change, playing out each spin like a climber's rope, gently, foot over foot. My cheeks feel rosy, my breath crystalline. The light facing Butle turns yellow and I let out the rope more generously now, releasing in full a moment after the light turns red, angling left across the line and to my place beside the berm, using the last of the hill to gather speed.

I don't feel protected inside so much clothing; I feel naked. I'm not overdressed.

Butler is reasonably quiet, and each bump on the pavement rattles my tailbone unpleasantly, even through my corduroy trousers and the padding of my tights. Was it only a week or two ago that I made this ride in baggy shorts?

Through Lawrenceville, I time most of the lights perfectly, easing by the line of cars backd up at Main, then at 40th Street, eyeing each car on the right warily for a door, each car on the left for any sign of an unsignaled right turn. I'm down low on the bars as though to evade the wind's regard, the palms of my hand resting gently where my bars' bullhorns turn upward jauntily, forearms laying on the cross bars comfortably, my new favorite riding position.

Somewhere in the twenties, on Penn, I pull up momentarily for a light asking the cross street permission to cross against the signal. On the corner a grizzled man retreating into a bedraggled plaid jacket, hip length, hides behind his sun glasses, cringes away from his hat, and speaks.

"Ain't it a little cold for a ride?" Hailing volume. Friendly voice, rough in all the right places.

"Sure is that," creeping a moment longer than necessary to deliver the line. "Shoulda thoughta that before I left the house."

He laughs; a moment shared. We'll both remember this encounter fondly later in the day. I'll write about it, I know.

Penn Avenue is quiet, no doors open in my path, no cars encroach unnecessarily on my left elbow. The back of my neck is flash frozen where my wet hair escapes the bottom edge of my synthetic skull cap, and my ears consider voicing some dissatisfaction notwithstanding their thin cover. At the top of my field of view, the top edge of my cycling sunglasses share a profile with a child's rendering of a seagull, a shallow articulated V.

Past the shops and nearing the 16th Street bridge, I contemplate the line of cars waiting at the light. The bridge intersection is the most complicated intersection after Lawrenceville, and where cars are lined up on the right waiting, some signaling a turn onto the bridge, I grow alert, weighing the benefits of trying to reach the light before it changes along the right side. When I'm sure I won't make the light, I either slow or head for the strip of pavement between the two lines of waiting cars.

Today, however, I figured to make the light before it greened and I was a jealous lover to my brisk pace. So I swept up the right of traffic, counting turn signals, and watching the cars creep to time a narrow passage between the inching cars and a large pick-up truck parked unusually close to the intersection.

I don't think about the adjustments I make. My legs sort it out. I'm all eyes and ears. Running scenarios. Modular behaviors. My riding eyes are almost interchangeable with my driving eyes; I watch for the same subtle signals; I covet grace, unconsciously resisting braking and rapid changes of speed like a mule the yoke.

What my eyes see my other systems process and evaluate, and herein lies the problem. Sometimes intelligence is massaged, spun, distorted.

And so it was that I failed to anticipate that the blue pick-up truck on the left, creeping forward, would arrive abreast of the yellow parked pick-up truck as I would. The blue truck, positioned further right in the lane than the other vehicles and prematurely angling toward the curve as though lunging toward an agreeable task, was a beast's closing jaw and I was the Millennium Falcon streaking toward an uncertain fate.

Between the trucks a keening noise occupied my constricting throat and my eyes shot back and forth between the two shoulder-level side-view mirrors, which, unbelievably, were lining up just in time for my passage, leaving my lean upper body less clearance than it requires facing square. A wobble due to a bump in the road stopped my heart as I contemplated ricocheting between these trucks toward the ground, all thumps and clangs and grunts. As I reached the mirrors, I tightened my midriff, lowering my shoulders like a running back piercing a sliver of daylight in the line of scrimmage, right shoulder dropping lower and pulling back to avoid the lower and more threatening mirror. My keening had become a drawling yell which stopped abruptly with the clap of my bag against the parked truck's mirror.

Then I was free, the jaws snapping shut behind me I imagine, and had about thirty feet to sort out the intersection, which was by then the furthest thing from my mind. As I drew even with the quarterpanel of a silver Mazda sedan, I realized belatedly that it was turning right and almost certainly had no idea I was there. If the car had signaled, my intelligence organizations had failed to observe it, and I was terribly exposed. Immediately I locked the rear wheel and arched my thighs into a controlled skid, gauging the level of danger, freed as only a new hazard can free me from the jarring memory of a blameless mirror smote. The skid worked out perfectly; I dropped perhaps half my speed as the Mazda turned across my path at spitting distance, began pedaling as it passed, and streaked past its bumper with a foot or two to spare, my respiration soft and even, my legs innocent of trembling, and a hint of sweat between my back and base layer, under my bag.

Just another ride to work.

Only settled into my office do I realize the depth and power of my hangover. Queasy all morning, suggestions of vertigo accompany abrupt changes of direction and most other movements, a bottomless craving for milk and chocolate, an odd aversion to the water my body most needed. How did I ride to work? How would I make it home?

At 6pm, the air is more frigie, the wind stiffer, my softshell black and dangerously invisible. Crossing in front of the Omni from Liberty toward Penn, a woman wound drum tight inside a peacoat, startled by an apparition sneaking by a stopped car toward the crosswalk, murmurs almost too soft to hear, "Try obeying the traffic signs."

Baffled by the insinuation -- what traffic sign? what offense did I commit beyond being where she least expected me? -- I say the first thing that comes to mind: "Try staying in the crosswalk, Officer."

An odd exchange of unnecessary cruelties to offset the streetside poetry of the morning's encounter, two diametric exempla of how one tends to give as he receives, and an air of dissatisfaction in the night.

I like that I'm invisible to pedestrians in the evening, silent and stealthy. That my invisibility extends to squirrels and cats has proven hazardous in unexpected ways, but it seems a small price to pay for barely even being there, a shadow, a driver's suspicion the source of which he cannot name, some shimmer in a mirror for a moment espied in his peripheral vision, sight and processing.

On Smallman Street the breeze is at my back, my toes numb not from the cold but from the pressure of squeezing thick neoprene socks into tight shoes, I approach my maximum comfortable spin. Only once, for no more than ten yards, halfway home to Lawrenceville, does one strong gust reach down like an invisible hand and grasp my chest, stiffening my blood and stealing my speed until in a moment I have lost nearly all of my speed. In its wake, I imagine powering home through a sustained wind of such strength; soon enough, I promise myself, before returning to more pressing matters: the darkness, the pavement, the chin I remember having but can no longer feel, the zipper digging into my neck.

So perhaps my commute isn't the quiet, bucolic idyll of rolling hills and brooks -- brooks! -- by moonlight that Brian enjoys during his new commute, any more than my newly stripped down bike is akin to his newly well-equipped cruiser. My route, like his before, is the city -- potholes, traffic indifferent to proximity piloted by cellphone yammering young professionals, car doors yawning mandibularly for a shivering Jonah racing inexorably toward his fate, unpredictable pedestrians and the merciless consequences of one's own fecklessness -- but at any temperature, in any condition of body or road, it exceeds its alternatives.

Thursday, November 17, 2005

Best. Caption. Ever

Below a wire service photo of Islanders Goalie Garth Snow, who lost his helmet in a collision last night, the Trib sports section had this to say:

Ouch! Islanders goalie Garth Snow holds his head while laying on the ice after the Thrashers' Marian Hossa (18) knocked it off while attempting to score during the first period Wednesday in Atlanta.

Wednesday, November 16, 2005

Just Your Friendly Neighborhood "Handholding" Humanist

Majikthise flags this amusing quiz care of the New Humanist regarding the sort of humanism to which one subscribes.

Mind you, if humanism isn't your bag, you'll probably skew the results (and one wouldn't want to do that with such a serious inquiry); the question isn't whether you are a humanist. Here are my results:


You go out of your way to build bridges with people of different views and beliefs and have quite a few religious friends. You believe in the essential goodness of people , which means you’re always looking for common ground even if that entails compromises. You would defend Salman Rushdie’s right to criticise Islam but you’re sorry he attacked it so viciously, just as you feel uncomfortable with some of the more outspoken and unkind views of religion in the pages of this magazine.

You prefer the inclusive approach of writers like Zadie Smith or the radical Christian values of Edward Said. Don’t fall into the same trap as super–naïve Lib Dem MP Jenny Tonge who declared it was okay for clerics like Yusuf al–Qaradawi to justify their monstrous prejudices as a legitimate interpretation of the Koran: a perfect example of how the will to understand can mean the sacrifice of fundamental principles. Sometimes, you just have to hold out for what you know is right even if it hurts someone’s feelings.

What kind of humanist are you? Click here to find out.

Monday, November 14, 2005

Adopting the Rhetoric of the Right

Michael at too much about nothing hosts a very interesting discussion about the potential hazards to the left of co-opting the incendiary, authoritarian language of the right. The comment thread, in particular, is where it's at.

Saturday, November 12, 2005

Alito on Antitrust

So this morning, returning home from a night of uncharacteristic debauchery, I proved once again that I am sadly, woefully, entirely definitely in the right line of work, since apparently even schlepping home from a bunch of silliness I can't escape my own legal maunderings.

There I was, driving down Bigelow Boulevard within an order of magnitude of the speed limit, when it hit me: I hadn't read a single comment about Judge Alito's record in antitrust cases.

So I decided to call a friend with a scholar's background in antitrust, with a healthy dose of econ and 20th century intellectual history (focus on econ) buried in his rather extraordinary mind, and ask him. I caught him on his way into work, the business he maintains while working full-time as an associate to the New York office of a blue chip law firm, said the perfunctory hello and jumped right in:

M: So I'm thinking, I don't know anything about Alito's record on antitrust, do you?

B: No. But the Supreme Court avoids antitrust cases like the plague . . .

M: Yeah, but it seems to me that notwithstanding the recent lull in sort of serious formative antitrust cases, in lieu of the disputatious [I actually used that word] stuff that comprises most anti-trust litigation these days, it seems to me there's going to have to be another golden age of sorts as the big boxes take over each other and everything else.

B: That may be true.

Unfortunately, right about then, B had to go, leaving me, still en route home, entirely unsatisfied.

Well, Google being what it is, it gave me these sources, proof positive that other people have had the same thought. Furthermore, at least in my mind, what I'm reading in these places provides another reason to be leery of the sort of justice Judge Alito would be in the cases that ought to matter most to us.

The American Antitrust Institute offers this curt summary (at this link, find analysis of all of the antitrust decisions Judge Alito was involved in deciding):

The American Antitrust Institute requested Michael J. Freed, one of its Advisory Board members, to look into the record of Judge Samuel Alito with respect to antitrust. He found no relevant articles by Judge Alito, but identified a small group of cases in which Alito sat as judge where antitrust issues arose. While one must to some extent read between the lines in order to find the outlines of a position, it appears that Judge Alito is not favorably disposed toward the private enforcement of the antitrust laws. The one case in which he seemed most friendly to an antitrust claim was decided over fourteen years ago. Mr. Freed concluded from this research that "Judge Alito is not likely to be a supporter of antitrust enforcement."

Antitrust isn't generally the controversial, divisive, or easily accessible topic that, say, abortion is. Indeed, it is dense, implacable, and seems a bit aloof from the day to day lives of laypersons. But like genetic privacy, intellectual property generally, and other topics that are only beginning to emerge as critically important to the country in the coming decades, I think antitrust law figures in there as well.

Why? Because if there isn't a renaissance in antitrust regulation and enforcement, and soon, our children may never know what it's like to wander into a little candy store or a vintage boutique, as little by little a few mega-corporations encroach upon the marginal market sectors they haven't already infected.

This may be an outcome that at least some bargain-hunting Americans may view as inoffensive, but independent commerce lies at the heart of the best that capitalism has to offer, and exists in symbiosis with the diversity Americans should celebrate every day of their lives.

In Which Bitch Ph.D. Supports a Pro-Life Bill

Recently, I gave Dr. B a hard time in connection with her comments about Judge Alito's pending confirmation hearings. Moreover, in conversation with friends who are fans of Dr. B, I've been a bit dubious (albeit agnostic on the assumption that there are aspects to the brouhaha to which I am not privy) about her banning of Paul Deignan from the comment thread to the same post I criticized (and, interestingly on much the same substantive grounds as Deignan did), which has turned into a bit of a teapot tempest in Dr. B's blogging circle.

But I haven't quite been able to bring myself not to visit her always engaging and entertaining site, and today I'm reminded why. Always primed to throw a curveball, Dr. B yesterday announced her support for the Elizabeth Cady Stanton Pregnant and Parenting Students Act of 2005, a bill introduced by Elizabeth Dole (R--N.C.), which "would establish a pilot program to provide $10 million for 200 grants to encourage institutions of higher education to establish and operate a pregnant and parenting student services office. The office would serve pregnant and parenting students and help students who are considering adoption instead of abortion."

What renders her apparently unequivocal support somewhat surprising (note, however, she acknowledges that she's basing her support on the write-up contained in the above-cited article), is that the bill comes from an anti-abortion senator and is being touted principally by the anti-abortion lobby.

At first blush, at least, the draft bill looks like the sort of sensible legislation that can come from widespread political cooperation between the parties when some of the partisan rancor is dropped in favor of a respectful effort to identify common ground, a process of compromise it's hard to imagine the Framers didn't have in mind in devising our system of government. These sorts of things provide a welcome change from business as usual inside the Beltway. Dr. B's detailed articulation of why the Act would be a step forward, notwithstanding its origin in the anti-abortion camp, reinvigorates my faith in her willingness to deviate from reflexive rhetoric and evaluate policy proposals on their merits rather than their provenance.

It seems foolish, and against the country's best interests, not to make every reasonable accommodation to mother's seeking to better themselves through education.

Friday, November 11, 2005

Today's Raft of Inconsequential Bad News

First, Arrested Development, a show I've only recently come to realize is brilliantly funny, is getting the axe. Its third season (in progress) has been chopped to 13 episodes, and all signs are that this is the end of the run. What a g'damned shame. One can only hope that, like Family Guy, a cult groundswell will illustrate the error. And in the meantime, I still have a season and a half that I haven't seen, which is something. (In slightly better news, Seventh Heaven is going down too, and it's high time. But that it could get a ten-year run while AD gets only 2.5 is as pathetic as it is inexplicable (unless, as appears to be the case, a show's ratings are inversely proportional to its creativity).)

Second, some people shed allergies as they age; I, however, seem to be following the opposite path. After entering adulthood with no known food allergies, in the past five years I discovered I had an allergy to tree pollen, which made it difficult for me to enjoy fresh apples, pears, plums, and other fruits in those delectable families. Though I never ate a ton, my discomfort in doing so eventually grew to a degree that I just stopped. And though I can have them in even mildly cooked form (although recently I had an issue with some dried nectarines), I still miss them.

Today, absently, I grabbed a granola bar out of a post-halloween bowl of goodies. After eating it, however, I got itchy throat and tongue syndrome, familiar from the onset of allergic reactions to the above-named fruits. The ingredient list included no reference to fruit of any kind, but did indicate almonds, peanuts, sunflower seeds, and other candidates. I continue to eat a bunch of peanuts, so I think I'm okay there, but almonds would be a dreadful loss, and would also bode ill for my future ability to eat nuts generally, since my allergies appear to be progressive with age.

I love too many foods too much to be losing them like this. It's really not fair.

The French Connection

For fans of Ferrari, Paris, F1 drivers, and good old hard-core driving porn, have I got a film for you. Rumor has it it's an F1 driver in a Ferrari terrorizing the streets of Paris.

A few observations: BUS!!! The Arche de Triomphe!!! Shit look out!!! The final verdict: Paris pigeons are way more alert than New York pigeons; little bastards can move when there's a Ferrari bearing down on them at 200 kph.

Serious driving porn -- like Gran Turismo 4 except real.

(Hat tip, Brian.)

Thursday, November 10, 2005

Gulag? What Gulag?

Talkleft and Majikthise call attention to an amendment to a defense appropriations bill submitted by Republican Senator Lindsay Graham that, in effect, overrides the Supreme Court's ruling in Rasul v. Bush.

In Rasul, the Court held over the strenuous protestations of the White House, that aliens detained, as enemy combatants or otherwise, were protected by the federal habeas corpus statute. Thus, they were entitled, as a matter of law, to challenge the propriety of their detentions and their conditions of confinement. The Court further held that, notwithstanding Cuba's ultimate sovereignty over the land on which these combatants were detained, detained parties had access to other related recourse under federal law, including under the federal question statute and Alien Tort Claims statute. What the Court did not rule is that these protections were constitutional in nature; the statutory basis of the jurisdiction found in that case, therefore, could be obviated by statutory enactment rather than constitutional amendment. Congress's broad discretion to broaden or restrict the jurisdiction of Article III federal courts was undisturbed by Rasul.

The relevant text of the amendment, an addition to 28 U.S.C. 2241, follows:

(e) No court, justice, or judge shall have jurisdiction to consider---

(1) an application for a writ of habeas corpus based on policies established by the Secretary of Defense under section 1071(a) of the National Defense Authorization Act for Fiscal Year 2006 filed on behalf of an alien who is detained by the Secretary of Defense as an enemey combatant; or
(2) any other action, challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant.

The amendment, at least that part concerning habeas jurisdiction, is rendered retroactive: that is, it "shall apply to any application or other action pending on or after the date of the enactment."

According to TalkLeft, the talking points Graham is circulating unabashedly sketch out the intended consequence of the amendment, which sets out to preclude detainee challenges to:

* The legality of their detentions
* The propriety of returning detainees to their home countries
* Adequacy of medical care at Guantanamo
* Quality of the food
* Speed of mail delivery
* Allotment of exercise time and other conditions of confinement

TalkLeft also notes that this goes beyond Guantanamo on its face, probably extending to any secret detention camps maintained by the CIA, and indeed doesn't appear to contain any geographical limitation whatsoever, raising at least a question as to whether it can apply to designated "enemy combatants" detained on American soil. Granted, there may be a constitutional challenge available in that circumstances, but does anyone doubt any such challenge would be strenuously opposed by the White House?

While one can understand the need for incarceration of enemy combatants, the more such a designation elides basic protections that lie at the very core of what makes this Country what it is, the more important it is that those so designated have a full and fair opportunity to litigate the designation itself, if nothing else. This amendment, however, by taking away habeas protection makes that impossible. It's possible, the writ of habeas corpus lying at commonlaw long before it was codified, that the Court would rule such an amendment unconstitutional (and take a beating as an activist court, no doubt). But who wants to take that chance?

This is a biggy. TalkLeft and Majikthise are urging readers to call their senators, and the Center for Constitutional Rights is tracking some interesting materials, letters and such from authoritative sources, concerning Graham's amendment. They characterize this as a "stealth amendment;" whether you like it or not, something this serious shouldn't be considered in the dark -- the word ought to be spread before we let our Senate flout a hundred years of international law and centuries of the Anglo-American tradition in a short-sighted attempt to protect this administration from the consequences of its own avariciousness.

Hilzoy's also on the case.

UPDATE: A slightly defanged but still bothersome variation on the Graham Amendment passed yesterday, but it's not a law yet.

Wednesday, November 09, 2005

Becker and Posner on Campaign Finance

Both Becker and Posner disapprove of serious limitations on campaign contributions, but Becker is adamant about the importance of disclosing the identities of contributors. Lots of jargon, but both discussions are interesting, especially in the subtleties that distinguish the academics' respective paths to the same (approximate) conclusion.

Tuesday, November 08, 2005

WTF -- Pittsburgh and Pennsylvania Slighted

CNN offers a quick summary of election activity around the country today, focusing, and justly so, on the gubernatorial campaigns in New Jersey and Virginia, which both have been about as nasty as these things get.

But in acknowledging the number of "major cities" voting for mayors on this fine autumn tuesday, New York, Detroit, San Diego and Atlanta are the only ones mentioned.

What about Pittsburgh?

And Pennsylvania has its own surprisingly contested Supreme Court retention election as well.

When did we become a less major city than Detroit or San Diego?

It's really sort of sad.

More Real Concern About Alito

Again, in the interest of equal time, and because I'm drawing more people from elsewhere on the ideological spectrum (and a warm welcome to visitors from Protein Wisdom), I'm inclined to further reaffirm my personal displeasure with a conservative nominee, even (or perhaps especially) one with the tremendous intellectual fire power of Sam Alito.

Armand at Bloodless Coup quotes Professor Walter Murphy of Princeton, evidently a friend of Judge Alito with whom he finds himself intellectually aligned in a few regards, as follows: "[Alito] is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I." Professor Murphy notes that the two agree that Roe v. Wade was wrongly decided (though I must insist, for the umpteenth time, that such a belief is a far cry from espousing the tumult that inevitably would follow overturning a thirty-year-old precedent with such far-reaching effects, and I think it basically unknowable, on the record we currently have, whether a Justice Alito would in fact work to effectuate that result).

Aside from admiring Murphy's sentence structure and his uncommonly perfect grammar, one also might find in this comments an assessment of Alito apt on the record and fair in substance. They also suggest why the left might oppose Alito's nomination, notwithstanding his intelligence and undeniable qualification.

And a word on qualification: in sheer intelligence and experience, Robert Bork also was qualified. But I use the term more technically than that to require, in addition to general aptitude in legal and constitutional analysis, a less than radical view of the constitution. Radical views, on the right and left, serve important roles in intellectual and public discourse regarding the role of the constitution and the direction of American law, but, notwithstanding the substantial systemic redundancy designed to hedge against the arrogation to undue power of any one official, jurist, or branch of government, I don't believe there is much room for radicalism on the Supreme Court, and I have only a marginally greater tolerance for it in the courts of appeals.

Bork was a radical, and hence unqualified. Alito, a rightist jurist, is not to my thinking radical. He may be, however, especially dangerous, if unchecked, to the prorities of the left, and as such perhaps should be vehemently opposed.

It has been suggested, and polls support it, that a majority of the country simply does not want a justice who will vote to overturn Roe v. Wade, or who will endeavor to kill the right to abortion with a thousand cuts. Increasingly, the commentaries of people like Professor Murphy, lead me to believe that Alito would be such a justice. Evidently, it would behoove Alito's opponents to back off the talking points, stop trying so hard to find in his eminently restrained jurisprudential writings things that aren't there (to wit, much in the way of evidence concerning how he would rule when less bound by precdent than he was as a circuit judge), and start paying attention to the bigger picture, where the key to victory (non-confirmation, that is) may lie.

Go check out Armand's post for more of Murphy's comments and a link to the rest.

UPDATE: Faiz Shakir at Think Progress just contacted me concerning the Princetonian's potential misquotation of Murphy regarding Judge Alito's opinion on Roe. If you're interested in following up further, check out his post on the issue. Do not, however, interpret my link, which I offer out of respect for his effort to reach me, as an endorsement of Shakir's sly characterization of what might be a simple journalistic SNAFU as a "cover-up." This strikes me as unduly inflammatory (in precisely the vein for which I've criticized TP recently), since the post's title, containing this insinuation, belies its own conclusion: "What we still don’t know is Alito’s true opinion on Roe."

Monday, November 07, 2005

Equal Time -- Good Reasons Not to Confirm Judge Alito

Law Prof Geoffrey Stone, without resorting to inappropriate and insupportable readings of Judge Alito's opinions, and without resulting to pithy soubriquets or impetuous smears, provides a focused birds-eye view of what valid reasoning leading to a senator voting against Judge Alito's confirmation might look like. (In all seriousness, as straightforward as it is, this is my favorite thoughtpiece on the nomination so far).

He notes two relevant questions: "First, what type of justice will he be? Second, what is the proper role of the Senate?" On the first topic, Professor Stone focuses on the idea of judicial restraint. In this regard, he sees in Alito echoes of Chief Justice Rehnquist, and on this basis opines that Judge Alito ought not be confirmed.

Consider the positions of Chief Justice William Rehnquist, perhaps the best example of a modern judicial conservative. Rehnquist maintained that there is no constitutional right to abortion, no First Amendment protection of the journalist-source privilege, no constitutional prohibition of government-funded vouchers to support private religious education, and no constitutional right to prevent the government from examining your bank records. All these positions can readily be seen as examples of judicial restraint.

On the other hand, Rehnquist also maintained that affirmative action[,] campaign finance regulation, restrictions on commercial advertising, public takings of private property even with just compensation, government decisions not to fund religious expression, and certain federal laws regulating firearms are all unconstitutional. By no stretch of language or logic can such positions be characterized as “judicial restraint,” to say nothing of “strict construction” or “interpreting rather than making law.”


It would appear that Samuel Alito is a rough approximation of William Rehnquist in terms of his perspectives, values, philosophy, and probable judicial approach. * * * * Whether that is good, bad, or indifferent depends on what you expect of a Supreme Court justice. For me, it is bad. In my judgment, the primary responsibility of the Supreme Court is to protect the relatively powerless in our society against the inherent dangers of the democratic process and to protect the process itself against the most powerful elements in our society when they attempt to manipulate the system for their own partisan or personal advantage. On my view, Rehnquist was not a “good” justice. Too often, he used his authority to promote the interests of corporations, the wealthy, mainstream religions, and law enforcement, and disregarded the interests of minorities, women, political dissenters, the press, and the disfranchised.

Okay. Note the magnanimity. The acknowledgment that this is about viewpoint rather than inherent worth. No intimations of conspiracy, of jumping at the opportunity to satiate some snarling idealogue hiding behind a judge or justice's seat on the bench. Just an honest assessment of patterns, apparent inclinations, and consequences, and a careful if brief explanation of why Professor Stone, based on the patterns and what they suggest about Judge Alito's (defensible in terms) inclinations, and given what he perceives to be the consequences of confirming Alito in light of these concerns, believes Alito ought not be confirmed.

In order to maintain the vote-no position, however, Professor Stone recognizes that one must consider the claim that confirmation is all about the "up or down vote" -- you know, the one the Republicans made sure Harriet Miers never received -- and the degree to which the Framers believed the Senate ought to defer to the Executive with regard to a nomination of such importance. Professor Stone pretty much demolishes the conventional wisdom on this one, too, and not by invective, but by simple marshalling of historical facts.

Presidents routinely assert that the Framers gave them the power to appoint justices and that the Senate should therefore defer to them in the absence of extraordinary circumstances. But that isn’t our history. At the Constitutional Convention, the Framers clearly intended the Senate to play an active role in giving its Advice and Consent to judicial nominations. Indeed, until the very last day of the Convention, the Framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive could exercise undue authority if granted carte blanche authority to appoint federal judges, who would then serve for life. It was only on the final day of the Convention that the Framers decided that it would be unwieldy for a multi-member body to make nominations and reluctantly assigned the responsibility of nomination to the president.

That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington’s nomination of John Rutledge as Chief Justice of the Supreme Court was rejected by the Senate because of opposition to his stance on the Jay Treaty, and during the 19th century the Senate refused to confirm 25% of all Supreme Court nominations. There is nothing at all new about confirmation battles.

Indeed, one might say that Professor Stone has hoisted the GOP on its own originalist petard.

(Hat tip.)

O What A Tangled Web . . . .

This is a classic moment over at CNN. The main story at the moment involves a tornado victim and a lake, because of the thousands of people who probably died in the last twenty-four hours, that's the flashiest one, and we all know flashy death exceeds matters of global import for headline value at the websites of record.

Meanwhile, in the sidebar, where the tornado death has relegated what passes for real news at CNN, we find these two headlines in the first and second position on the list:

Five U.S. soldiers charged with detainee abuse

Bush: 'We do not torture'

Now, how are we to make sense of this? Well, in connection with the first article, we learn that United States military prosecutors -- Commander-in-Chief George Bush's subordinates, that is to say -- are charing five soldiers with beating several Iraqi detainees. That article goes on to note: "The announcement came on a day when President Bush told reporters that the United States does not condone torture."

Meanwhile, at the top of the seconda article, the article addressing at greater length the remarks briefly paraphrased in the first article, we get this:

President Bush vigorously defended U.S. interrogation practices in the war on terror Monday and lobbied against a congressional drive to outlaw torture.

"There's an enemy that lurks and plots and plans and wants to hurt America again," Bush said. "So you bet we will aggressively pursue them but we will do so under the law."

He declared, "We do not torture."

Over White House opposition, the Senate has passed legislation banning torture. With Vice President Dick Cheney as the point man, the administration is seeking an exemption for the CIA. It was recently disclosed that the spy agency maintains a network of prisons in eastern Europe and Asia, where it holds terrorist suspects.

So we don't "torture," but we evidently do unecessarily beat detainees. And even though we don't torture, our own military does prosecute people for doing things that sound an awful lot like torture. Which would almost sound like an admission that we do, in fact, "torture." Maybe there's more to it . . . wait, there it is --

"Our country is at war and our government has the obligation to protect the American people," Bush said. "Any activity we conduct is within the law. We do not torture."

Well, hel, if "any activity we conduct is within the law," and torture is illegal under the Geneva Conventions, we have a perfect syllogism -- and activity we conduct must not be torture under the Geneva Conventions. Pretty tidy when you think about it.

Oh and a propos, the International Herald Tribune, extensively quoting Colonel Lawrence Wilkerson, former Chief of Staff to Colin Powell during his tenure as Secretary of State, reports that all roads with regard to prisoner abuse lead to Cheney's office.

Colonel Lawrence Wilkerson, former chief of staff to Colin Powell, then the secretary of state, told National Public Radio he had traced a trail of memos and directives authorizing questionable detention practices up through Secretary of Defense Donald Rumsfeld's office directly to Cheney's staff.

"The secretary of defense under cover of the vice president's office," Wilkerson said, "regardless of the president having put out this memo" - "they began to authorize procedures within the armed forces that led to what we've seen."

He said the directives contradicted a 2002 order by President George W. Bush for the U.S. military to abide by the Geneva conventions against torture.

(Hat tip Billmon care of Dr. B.) As Dr. B. observes, there's really not a single sentence in the IHT article that isn't jaw-dropping, even in light of the many familiar aspects of it. IHT might not be the most authoritative source, but consider their extensive reliance on Colonel Wilkerson, who's not exactly some nut-job isolated in a Montana shack with no plumbing or electricity.

More On Academic Exercises and Nominee-icide

In a comment to a recent post regarding the fiercely pro-privacy, and seemingly pro-gay-rights thesis Judge Alito authored as an undergraduate at Princeton, which the Bush Administration mouthpieces dismissed as an "academic exercise," Binky suggested that such an "exercise" was what scuttled Bill Clinton's nomination of Lani Guinier to the Justice Department's Civil Rights division. Without a link or an explanation, however, uninformed little me had no idea what she was talking about.

Now, chiding me for not picking up on the reference (which to be fair occurred when I was a freshman in college studying engineering and all but indifferent to politics), Binky followed up privately providing a link to a 1993 article from the Columbia Journalism Review, which provided more detail.

The story seems more than a little germane to what seems to be my little crusade the last week or so to identify every misrepresentation of Judge Alito's record, most of which occur more out of ignorance and repetition than out of any sinister motive. The fact remains . . .

Lani Guinier (and I confess that what follows tracks only the CJR article, so to the extent it's wrong, so am I), was attacked during the pendency of her nomination for having authored scholarly articles that some construed as being downright radical with regard to affirmative action. After explaining the aggressive right wing campaign to discredit Guinier, based in large part on selective quotation of the articles in question, the article noted that the Washington Post's Michael Isikoff largely adopted in his coverage not only the summaries but even the results-oriented quotations employed by the right wing smear campaign. The article continues:

Scholarly articles should not, of course, be immune from scrutiny in a confirmation battle. But two standards ought to be met: one, that the selected passages accurately reflect the author's overall views and, two, that the writings are relevant to the nominee's potential responsibilities. Of course, press coverage of all bodies of work should meet those standards. But the length and complexity of academic writing may make it particularly difficult to summarize and particularly easy to distort. In addition, "scholarship is a conversation," as Yale law professor Stephen L. Carter puts it, in which academics throw out ideas partly to "provoke a response." Journalists should be hesitant to treat such tentative recommendations as concrete policy prescriptions.

No such reticence was exhibited in the coverage of Lani Guinier's scholarly writings. Too few reporters questioned whether her theorizing was relevant to a third-tier, though important, job within the Justice Department. Too many reporters uncritically accepted Bolick's and other conservatives' depictions of her views, the same quotes appearing over and over again in such publications as Newsweek, the Los Angeles Times, and U.S. News & World Report. Too few reporters made a concerted effort to explain her views on her own terms before offering others' criticisms of them. And too many reporters substituted code words, such as "quotas," "affirmative action," and "reverse discrimination," for a genuine dialogue on the sensitive subject upon which her writings focus -- the continuing effort to thwart blacks' effective participation in the political process. The result was a portrait that University of Chicago law dean and constitutional scholar Geoffrey Stone calls a "cartoon." [emphasis mine]

Now, in particular, the role provocation plays in an academic discussion ought to have no place in judicial opinions, and thus that particular cautionary note is distinct to the academic context and not relevant to the discussion of Judge Alito's nomination.

The other language, however, is dead on point to the instant problems I've been discussing on this site. The truth is, too many commentators and reporters are substituting pithy or facile readings of intensely nuanced opinions. The import of those opinions may be subject to dispute, as may be what they do or don't say about Judge Alito's likely conduct as an Associate Justice of the Supreme Court, but where x, y, and z, are legitimate interpretations of a given opinion, reporters that run with some left-wing idealogue's strident insistence that a, b, and c, all horrible apocalyptic outcomes, are in fact what the opinion means doesn't make it true.

If reporters and editors are expected to fact-check, why shouldn't they also be responsible for checking out whether there is any sort of support for a given pundit's most facile inflammatory suggestions. I know this rejection of he-said she-said reporting is old news by now, but in an information-intensive venue like the debate that ought to surround the confirmation of a nominee to the Supreme Court, shouldn't the standards be higher? This seems all the more obvious where there is an extensive written record. I come across interpretation after interpretation of Judge Alito's work that, if written on a final exam in a law school class wouldn't earn the student higher than a D for that question, where due to grade inflation a C is perilously close to a failing grade. It's not about right or left -- it's about finding somewhat of a consensus from relatively indifferent attorneys who know how to read this stuff. It's refusing to write about something in 250 words where 500 words are the minimum that will suffice. It's simple honesty.

This distillation to the point of incoherence approach was applied to Guinier, who came to be known as the "Quota Queen," ostensibly due to her belief that affirmative action would be successful only where roughly proportional results were achieved among the races. The article explains the falsity of this widely promulgated claim and attendant soubriquet:

He and those who regurgitated his analysis ignored her comment in the Virginia Law Review that, while she could be accused of "outcome-oriented jurisprudence," her "focus on legislative rules, not decisional outcomes, adequately answers this criticism." And Guinier never proclaimed (authors rarely proclaim in footnotes) that the law mandates "roughly equal results." When read in conjunction with the sentence that follows, Guinier seemed to be claiming that "substantive equality" should be measured both by "the process," which "must be equal," and "the results," which "must also reflect the effort to remedy the effects of a century of official discrimination." This complex idea was reduced to: Lani Guinier does not believe in "equal opportunity."

"Strip Search Sammy," anyone? (I should note that Lindsay took the time to defend her views regarding this case on this weblog with far more robustness and cogence than pretty much any proposition I've read anywhere in the MSM about Alito. I still find pithy soubriquets to by symptomatic of an underlying tendency to oversimplify; wit is no substitute for rigor and nuance.)

Next, the CJR article considers the broadly parrotted claim (by Neil Lewis, among others) that Guinier had written that Virginia's black governor was "inauthentic," an Uncle Tom, for having prevailed in his election due to widespread white support. Carefully analyzing Guinier's scholarship, which it found dense and convoluted, CJR concluded:

To state that Guinier considered Wilder inauthentic was wrong. Most press accounts, however, didn't even provide the basic definition of "authenticity" as used in voting rights terminology. To many journalists the subtext of this racially loaded charge -- that Lani Guinier called Doug Wilder an Uncle Tom -- was too important to leave out, but not important enough to try to understand or explain.[emphasis mine]

This continues to sound familiar -- suggesting, for example, the durable but demonstrably (and objectively) false meme that Judge Alito would have ruled that the FMLA did not protect state employees. And here's the problem:

To Stuart Taylor, Jr., a columnist for American Lawyer Media newspapers who criticized Guinier in three columns, such "condensation" of long, scholarly articles "is unavoidable, and the judgment as to how much context must be provided to be fair is a subjective one." Many journalists didn't bother much with context. In fact, many reporters relied on Taylor -- whom New York Times reporter David Margolick describes as "one of the few people in Washington or anywhere else actually to wade through" her articles -- for their context. Taylor says he received several frantic calls from reporters asking for a quickie summary of Guinier's views to be used in articles due later that day. That gave Taylor, an opinion columnist with defined views on civil rights, a disproportionate influence over the debate.

Not bothering with context. Not wanting to "wade through" dense legal writings.

The article concludes with the observation that a situation is ripe for such misrepresentations where a nominee has a long paper trail and opponents have the impetus to oppose fiercely the nominee's confirmation. It proposes that "In the future, the press will have to work harder to ensure that the nominee's opponents don't set the agenda and dominate the debate."

But that's exactly what's happening here. Mind you, the "nominee's opponents" are my political allies, and indeed are people with whom I cast my lot, on this issue and others. But that offers no comfort when a debate that could be about the issues and about what qualities Americans want in a judge instead becomes a smear campaign entailing broad-based misrepresenation of the nominee's views and writings (typically compounded by an utter lack of explanatory caveats concerning his ethical boundaries as a judge on an intermediate appellate court) in lieu of an acknowledgment of the man's tremendous talent, impeccable profesional record, and clear humility and restraint. And the media are complicit in attending to and relying upon these patently biased and all-too-frequently self-evidently (and sometimes unapologetically) uninformed commentators in lieu of those with no particular axe to grind and the background to speak intelligibly and with at least some semblance of objectivity about the gravaman of Judge Alito's opinion, taken in isolation and as a whole.

The CJR offered four solutions to improve the quality of reportage. While they are tailored to a person nominated to serve as a government attorney, they are close enough to the relevant concerns in the judicial context as well.

First, reporter[s] need to evaluate whether a nominee's philosophical theories will decisively affect the job he or she is to do. Second and most obvious, reporters need to read the articles, in their entirety, and decide for themselves, perhaps with the aid of scholars, what they in fact say. And the articles must be engaged on their own terms, not terms borrowed from previous partisan debates.


Third, reporters must be committed to explaining a nominee's views in totality, not the most controversial parts. And fourth and most difficult, the press, must look beyond the easy code words, like "quota queens," to facilitate a real discussion . . . . [emphasis mine]

I'm not holding my breath, but when even the most reliable media can't be trusted to furnish useful, accurate information, neither can be trusted the populace's behavior which necessarily relies, at least in part, on those sources for determinative information. This is just another instance where a journalism that substitutes equal-time for various interested parties to repeat their talking points for objective, critically informed analysis is no more than campaign literature or a fund-raising wing for the PAC's behind the bowdlerizations.

And Binky's reference to the Guinier story just reminds us that it's really an old story. It'll change when enough of us want it to. And to those who would suggest that the blogosphere has had a salutary effect on this phenomenon, I should hope that my recent critiques at least give one pause before adopting that proposition: I would like to think the truth is easier to find now than it was then, given the proliferation of bright and insightful sources, but when the chips are down it seems the talking points still are most of what emerges, and that the mainstream idealogues, as quoted in the mainstream press, continue to set the terms of the debate.

Sunday, November 06, 2005

Brevity Is the Bane of Twits

Who is the latest to get it wrong on Alito? No one special, just Neil A. Lewis of the New York F*&king Times. Lewis offers two howlers today, both discredited in detail on this site last week.

1. "In his dissent from [Rybar, Judge Alito] said a gun deal in Pennsylvania should not have been convicted because Congress did not constitutionally have the right to enact the law on machine guns."

Well, no, actually. What Judge Alito wrote is that Congress had failed to establish, in the way it enacted the law in question, that it had constitutional authority to pass the law. Judge Alito held that this outcome was compelled by the Supreme Court's decision in Commonwealth v. Lopez Judge Alito noted, however, that had Congress offered a clear jurisdictional provision, or had offered empirical data explaining how the activity it sought to regulate affected interstate commerce, it might well have passed constitutional muster.

More generally, I take issue with Lewis's reference to Congress's "rights." Congress has no rights. It has enumerated powrs. Judge Alito would have ruled that Congress had failed to demonstrate how the activity in question fell within one of Congress's enumerated powers.

2. Judge Alito "ruled in 2000 that the Family and Medical LEave Act did not apply to state employees."

Wrong again. And I'm sick of explaining why. Professor Althouse does a better job of it anyway. Not that Mr. Lewis could be bothered to check that out.

Not impressive at all from the Newspaper of Record, but typical, sadly.

Friday, November 04, 2005

And Not One Second Too Soon

Construction begins on the new World Trade Center, with an etching in plywood forms of the footprint of Santiage Calatrava's wing-clipped revision of his formerly soaring transportation hub. The cropping of the hub, like the overfortification and deracination of the Freedom Tower and Pataki's unilateral excision altogether of the International Freedom Center (I'm not sure whether it was the focus on "international" or "freedom" that did it) from the cite, was a bitter disappointment for those of us who saw in tragedy an opportunity to celebrate New York's singular spirit and beauty by creating something respectful but utterly daring, were shocked to see something audacious evolving through the design process, and then were crushed when a red tape tourniquet and an exhausting and ill-fated endeavor to satisfy every constituency in the city with a checkbook cut off the blood supply entirely.

Even so, I'm sanguine: I count this as a good day, indeed a fine day. It's time to build. Time to move on -- not to forget, but merely to ask: What's next?

Another Angle on Alito's Opinion in Alexander v. Whitman

Fred Vinson kindly cites this weblog in his discussion of Judge Alito's concurring opinion in Alexander, which is turning out to be a central player in the grande guignol that is the run-up to Alito's confirmation hearing in January (and it's only November -- what fun we'll all have this holiday season). I'm not entirely sure he gets what I was saying, and I'm pretty much certain I'm unclear on exactly his point. But in any case, his writing prompted me to leave a comment, which I'd like to reproduce in relevant part here.

Here's an interesting thought that doesn't make it into my analysis of Alexander. Alito writes:

First, I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment.

I see no reason why the following syllogism isn't available:

1. In Alito's ideal view, there would be no "human beings" that are not "constitutional persons."

2. The Supreme Court has held that fetuses are not constitutional persons.

3. Therefore, fetuses are not human beings.

Of course, he ascribes the above minor premise to the Supreme Court, not to his own moral compass or legal convictions. Thus, in itself this reveals nothing about his position on the matter once he's untethered from the obligation of an intermediate appellate court judge to uphold the law of the court of last resort.

The fact remains, however, that it's odd and unfortunate phrasing with something for everyone. Anyone in the anti-abortion camp who's truly mollified by that paragraph isn't reading it critically enough. The same, of course, is true of anyone on the other side of the debate.

To be clear, I offer this not because I have any conviction about it faithfully interpreting Alito's view, but merely because I think it illustrates the many intepretations, from the most absurd end of each ideological extreme to the other, available in such a "gnomic" opinion.

I still believe that, unless he wrote ungrammatically or incoherently (something I've yet to observe in his opinions), all that Alito found "unfortunate" was the opening for litigious mischief he perceived to be an inescapable consequence of the majority's non-constitutional "human beings" heuristic (and for the close readers, that's all the majority did -- assume for purposes of argument (but not decide) that mother's claim that her fetus was a human being from conception), only to demonstrate that she still had no claim under governing law.

Judge Alito's Academic Enterprise

I'm not sure why this isn't getting more play.

Mr. Leahy said, "I don't know how you do a fair and honest hearing by the end of the year." Adding a new wrinkle to the portrait of Judge Alito's views, The Boston Globe reported Wednesday that as a student at Princeton the judge had written a paper arguing that prohibitions against sodomy should be overturned and "discrimination against homosexuals in hiring should be forbidden."

The same paper, on "the boundaries of privacy in American society," argued for greater restrictions on government searches and surveillance and also recommended the creation of a federal privacy "ombudsman," according to a copy obtained from a Princeton library.

Several conservatives said they did not yet know enough to comment about the paper. Steve Schmidt, a spokesman for the White House, said it was "an academic exercise."

An "academic exercise?" A paper arguing for sweeping privacy protections authored by a judge whose opinions betray a clear libertarian bent? Given what poor readers the mouthpieces of the left have revealed themselves to be, I'm not sure why anyone thinks the right is viewing him with any more fidelity to the man he really is, and the justice he'll actually be.

This is the far right's "hand-picked candidate?"[1] I'm just not so sure.

1. NYT quoting an upcoming advert from People for the American Way.

Cooler Heads on Alito -- Maybe Not Prevailing, But Cooler Anyway

I've done my little part to disabuse the open-minded of some dubiously uncharitable interpretations of Judge Alito's opinions (and to the folks from PointOfLaw, welcome), and I don't know that I'll have cause to write at length again. For now, I'm just going to aggregate what I take to be sites that are fighting the good fight -- not for or against Alito, just for fair readings of his work and realistic acknowledgments of what limitations such readings impose on what one can conclude about the sort of judge Alito is.

Julian Sanchez continues his engaging dialog with ThinkProgress.

Randy Barnett flags Ann Althouse's post regarding Alito's putative conservatism, identifying it as more the judicial restraint variety than the ideological movement conservatism variety.

Barnett also offers thoughts on Alito as the "Triumph of Roosevelt over Madison," which is also, according to him, the triumph of Scalia's conservatism over Thomas' (which I'm not going to assess, except to note that it's always nice when someone recognizes that these two justices aren't nearly as monolithic in their sympathies and jurisprudence as the media (and the President) sometimes suggest). For Barnett, this is unfortunate: a Rooseveltian account of the Necessary and Proper Clause, Scalia's and perhaps Alito's, calls for substantially more restraint, sticking us with a state of law that Barnett disapproves.

Ted Frank and Dave Kopel reach the same conclusion that I did -- that in Rybar, Judge Alito was trying to follow in good faith the Supreme Court's ruling in Lopez when he argued that the Commerce Clause did not authorize congressional regulation of intrastate possession of machine guns absent a proper jurisdictional hook or congressional findings demonstrated a direct impact on interstate commerce.

Orin Kerr flags the Yale Law Journal's posting in .pdf form of Judge Alito's student note, Samuel A. Alito, Jr., Note, The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court, 83 Yale L.J. 1202 (1974). Yep, law students, that article you submitted in a form that was little more than a stack of disconnected information about a general area of law that, magically, was accepted for publication, and which you then completely reconfigured and rewrote from scratch, all 25 pages and 200 footnotes of it, in 18 hours of coffee-fueled panic . . . well, in thirty years, when you're tapped to some prominent position, it's going to come back to haunt you. Wait, I thought you were the one who rewrote it from scratch in one night. That was me? Holy shit you're right! I totally forgot.

And on a lighter note, Alito's a bit rumpled.

If you want more from law-oriented sites, it's probably linked at SCOTUSBlog. If you want more media, it's probably linked at How Appealing.

Happy hunting.

Thursday, November 03, 2005

Three Cheers for the Post-Gazette

Notwithstanding the deficiencies identified in the post immediately preceding this, some mainstream outlets have been getting it right, or are catching up. Michael McGough, of the P-G's National Bureau (yes, a local paper that still has one), makes an insightful and at least somewhat persuasive argument that Judge Alito's views on abortion may not differ radically from Justice O'Connor's. What's more, he makes his argument based on -- gasp! -- his detailed reading not only of the relevant Alito opinion, but of the relevant opinions authored by Justice O'Connor.

As I did in another case, McGough emphasizes that no one has a crystal ball:

It is possible that, once on the court, Judge Alito would be more willing than Justice O'Connor to uphold restrictions on abortion, particularly those designed to protect the interests of husbands of women contemplating the procedure.

But the evidence offered for that proposition -- Judge Alito's dissenting opinion in a 1991 Pennsylvania case -- isn't the smoking gun his critics say it is.

He then proceeds to the legal crux of the test at issue in Casey, as the law was when that case came before the Third Circuit court of appeals, and then as the Supreme Court later ruled.

In a 1983 dissent from the majority's holding that it was unconstitutional for the city of Akron, Ohio, to require that abortions after the first trimester be performed in hospitals, Justice O'Connor proposed a different legal standard for deciding whether a restriction on abortion violated the Constitution -- one that worried abortion-rights supporters at the time.

First, Justice O'Connor wrote, the court should determine whether a particular restriction was an "undue burden" on the right to abortion. Only if the answer was yes would the court go on to subject the regulation or law to "strict scrutiny," which means that a regulation is upheld only if it serves a "compelling government interest" and does so by the "least restrictive means."

This was essentially the test that Judge Alito and his colleagues used in 1991 when they considered the constitutionality of the Pennsylvania Abortion Control Act. The majority found that the spousal notification requirement was an undue burden; Judge Alito came to the opposite conclusion.

At Step One of Justice O'Connor's two-step process, he determined that there was no undue burden because the spousal notification provision did not give the husband veto power. Judge Alito quoted Justice O'Connor as saying that an undue burden would not be created by "a state regulation [that] may 'inhibit' abortions to some degree."

Then having determined that the requirement wasn't an undue burden, Judge Alito moved to Step Two -- identifying a "compelling interest" -- and found it in a married man's "interest in the welfare of a fetus he has conceived with his wife."

But surely Judge Alito must have misread Justice O'Connor's test, if Justice O'Connor came to the opposite conclusion when the Pennsylvania law reached the Supreme Court? Not necessarily.

He then quotes Kathryn Kolbert, the attorney for Planned Parenthood in Casey, as suggesting that it was Justice O'Connor's position that evolved. "O'Connor's view of what was an 'undue burden' changed significantly," Ms. Kolbert said yesterday. "The Casey opinion was one of the most feminist decisions in history."

Like McGough, I'm not interested in taking sides or prognosticating. But this is the sort commentary Americans need to inform their decision whether to avidly implore their senators to work to sink Alito's nomination, not the slipshod see-what-sticks approach I criticized below.

ON THE OTHER HAND UPDATE: Armand at Bloodless notes that two of the four former justices Alito yesterday identified as his favorites (Rehnquist, White, Harlan II, Brennan (Brennan? Yes, Brennan)), White and Rehnquist, were the only two justices in dissent to the Court's decision in Roe v. Wade, and that White is not typically named as one of the more extraordinary justices, which only adds a layer of curiosity. (A propos Justice Harlan, recall my reference last week to his dissenting opinion in Poe v. Ullman, as considered by Michael).

Lies and Lying Liars -- A Lefty Cries Bullshit on Pretty Much Everything the Left is Saying About Alito

The liberal blogosphere, my peers and mentors, my sources of information and my sources of entertainment, are proving embarrassing in their reflexive attempts to excoriate the nomination of the Honorable Samuel Alito to replace Justice O'Connor on the United States Supreme Court. See this comment, collecting links (not every link necessarily contains an example, but several do.)

So hasty are they to imagine that a nominee perceived as adequate to mollify the far right in fact should be a mollifying nominee to the right that they are missing clear signals to the contrary. Their fears may prove justified. And in a more abstact sense, I share those fears. Nothing that follows should be read to suggest otherwise.

And it's not just the bloggers -- Slate's legal commentator, Dahlia Lithwick, darling of the left and straightshooter as well as she voted most-likely-to-be-the-subject-of-a-not-so-secret-crush-by-law-geeks-like-me-who-don't-even-know-what-she-looks-like, is one of the biggest culprits with a dubious drive-by embedding a number of questionably pejorative interpretations of his decision in a single convenient paragraph in this piece. Et tu, Dahlia? (See also Bazelon, Emily, but I don't have as much of a crush on her so it hurts less.)

Anticipating what a judge will do vested with lifetime tenure and an end of all direct beholdenness to others, having attained the pinnacle of his profession, has proven an entrely dubious enterprise. I don't pretend to know how Judge Alito would rule on any pet issue of mine. And anyone who does might as well be reading tea leaves for all the guarantee the traditional extrapolative endeavors furnish. But it's simply reckless and discrediting to willfully, or ignorantly, misconstrue his rulings in an effort to reinforce one's worst assumptions about the motives and effects of the nomination.

The title of this post is somewhat misleading. I don't have the time to scrutinize the many thousands of words being spilled in the process of smearing Alito with any substance close to hand, nor to read the hundreds of opinions he's authored as a circuit judge. But I'm operating on a basic principle -- if I can find one central reckless misreading (or non-reading, as is obviously all too often) of an Alito opinion by a given commentator, lawyer or otherwise, than I can no longer rely on that commentator's analyses of any of his other opinions.

Unless I run out of bile, or choke to death on my tears (there are some real disappointments to follow, shaking my faith in some of my favorite weblogs), the following discussion will leave me few of my traditional guiding lights on whom to rely, which saddens me. In this one instance, at least, the blogosphere, the supposedly self-correcting enterprise that lives to point out the fallacies that infect soundbite politics and the mainstream media, proves no wiser, no more rigorous, than those ideological tools it so reliably excoriates.

Pull up a chair. This is going to take a while.

A few prefatory caveats:

1. Politically, I am largely left of the mainstream Democratic party, something regular readers are unlikely to contest except, perhaps, as to isolated issues. Believe me. Don't. The fact remains, and there is a year of archives here to support my proposition.

2. As a consequence of (1), I would not nominate Alito to the Supreme Court had I the power. Whether he's a leading light of the right, or merely a moderate and restrained jurist, he does not interpret the constitution with the flexibility I believe that enterprise requires in a rapidly changing world.

3. Some of the misreadings identified below arise, unsurprisingly, from the fact that many prominent commentators lack legal training. Granted, judicial opinions ought to be accessible to laypersons, and many are. Consequently, non-lawyers certainly are not precluded from commenting on these matters; indeed, the polity for its vibrance depends on such conversations. That said, there are certain legal issues that elude reduction to a few simple sentences or an elegant syllogism. Predictably, I have found it is with regard to these cases that the commentariat is most unreliable. Unfortunately, even with those cases that appear fairly straightforward, there tend to be critical nuances that are non-obvious, and significantly alter the landscape of what's written and what the writing suggests about the opinion's author.

4. What's worse, the prominent non-lawyer bloggers who make mistakes (or who willfully manipulate Alito's words to create a false portrayal) tend to be those bloggers most frequently quoted by the inchlings, like this humble writer, and the echo chamber turns misreadings into gospel all too quickly.

5. Vanity Note: For those I haven't already told, and I've told many (who wouldn't), I had the, er, pleasure of interviewing for a position in Judge Alito's chambers a couple of years back. He did not offer me the position, and the interview was somewhat unpleasant, all things considered. So if anyone has an ulterior motive to bash him, it's poor, jilted me.

6. I mean no disrespect to anyone singled out for criticism here (Bitch Ph.D., on whose convenient list I principally rely, in particular). I intend, however, to make my little contribution to the error-correcting function of the blogosphere noted above, in any area where I have the background, wherewithal, and inclination to do so.

Now, there is so much already out there that I could begin almost anywhere. But certain cases have pinged loudest on the left's ever-vigilant radar, and Bitch Ph.D., a blogger I generally regard very highly, perhaps inadvertantly catalogs them well. So we'll begin with her list. In what follows, blocks of italicized text designate direct quotations from her weblog.

1. He opposed Americans' ability to sue state employers for violating the Family & Medical Leave Act. Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer.

The case in question is Chittister v. Dept. of Community and Economic Dev.. Judge Alito authored the opinion for a unanimous panel. In that case, the court was faced with the question

whether Congress validly abrogated the states' Eleventh Amendment immunity when it enacted provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. SS 2601-54, that require a broad class of employers, including states, to provide their employees with 12 weeks of leave "[b]ecause of a serious
health condition that makes the employee unable to perform the functions of the position of such employee" and that permit employees to sue in federal court for violations of the Act. We agree with the District Court in this case and with the other Courts of Appeals that have considered this question that Congress did not validly abrogate the states' Eleventh Amendment immunity when it enacted these

I start with a disclaimer: this case exceeds the ambit of my full scrutiny; I simply lack the time to compensate for my lack of expertise in this area. Fortunately, one respected (if by no means universally liked) commentator has taken the time to explain the holding -- in particular, its limited scope. Law Prof Ann Althouse took up common misunderstandings about the scope of this ruling here and, when that proved insufficient, revisited the case's subtler points a second time.

The critical aspect of her discussion is found in the second of these two posts, an essentially irrefutable rejection of Dr. B's flippant misreading: "Work for state government? Tough shit, no unpaid leave for you if you have a baby or your husband gets cancer." As Althouse observes, "[D]enying the existence of Fourteenth Amendment power would not make the FMLA unconstitutional. It is independently supported by the commerce power, even for state employees." Althouse explains that Chittister's effect was not to obviate FMLA's protection for state employees, but rather to deny them access to retrospective relief under the Fourteenth Amendment.

She may not be entirely right, but she's almost certainly right about the Fourteenth Amendment / Commerce Clause distinction, and thus she also appears to be right that someone at Daily Kos, Senator Barbara Boxer on the Daily Show, and Law Prof Pam Karlan on the NewsHour with Jim Lehrer were patently wrong in essentially concurring in Dr. B's brief assessment.

Read her posts for more nuanced discussion; I'm not nearly qualified enough to parse the details. I am, however, bright enough to recognize that her anlysis is legally robust (see also PointOfLaw.), and, while I'd be happy to be corrected on this, (see caveat 2, supra), Technorati does not yet disclose an effective rebuttal.

ASIDE: Legitimate questions pertaining to the Eleventh Amendment lurk in this case, and I'm not even sure I'm smart enough to describe them accurately. Certainly, the Eleventh Amendment was reinvigorated -- and many would say to the detriment of disadvantaged parties -- by the Rehnquist Court, and there's nothing to suggest things will be different under Roberts' leadership. But these are not the aspects of this case the commentariat is focusing upon; instead, they're sticking with demonstrably false statements suggesting that the case decides far more than it does.

2. * * * [Alito] also argued that Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act; apparently he believes that machine guns don't cross borders, people carrying machine guns cross borders.

Again, flippant but flawed on two levels: First, in his dissenting opinion in United States v. Rybar, 10 F.3d 273 (3d Cir. 1996) (Alito, J., dissenting) [If no link to a case appears, it either means that Findlaw doesn't have the case or is somehow not showing the case properly; in the interest of expedience, I revert on such occasion to Westlaw, which most of you don't have access to. Google should be good for you folks; law schools and other sites often contain the text of opinions], Judge Alito simply did not contend that "Congress doesn't have the right to regulate ownership of machine guns under the Interstate Commerce Act." Indeed, he paid the courtesy of explaining the consequences he perceived of his argued-for position:

[My proposed ruling] would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession . . . . Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. § 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.

His problems with the challenged statute, that is to say, are not sweeping, not constitutionally inexorable -- they are technical, and lead directly to my second objection to Dr. B's formulation.

Roughly one year before the court of appeals issued its opinion (along with Alito's dissent) in Rybar, the United States Supreme Court issued its decision in United States v. Lopez, determining that Congress lacked authority to pass the Gun Free School Zones Act because the Act facially criminalized intrastate activity and was too attenuated from any empirically demonstrable (or, at any rate, demonstrated) tie to interstate commerce.

If the statute in question was indistinguishable in material part (that is, in the regards that the Supreme Court identified in striking down the statute) from the statute in Lopez, the court of appeals would have no choice but to invalidate the law at issue in Rybar. Alito based his ruling solely upon his belief that Lopez governed, and surely his reasons for believing so are defensible.

The statutory provision challenged in this case . . . is the closest extant relative of the statute struck down in Lopez, which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. If Lopez does not govern this case, then it may well be a precedent that is strictly limited to its own peculiar circumstances. That may be what the majority here would like, but our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form. [citations and footnote omitted]

I don't have to agree with him or the Court's decision in Lopez to find in this something less than the gleeful gunplay-in-schools ruling that Dr. B finds. As is often the case in decisions like this, Judge Alito is even kind enough to chart a path for Congress to pass a statute, indistinguishable in effect from the one in question, that likely would pass constitutional muster. This dissent derives from a narrow, technical dispute, and turns on a facially faithful reading of Lopez. There's nothing terribly offensive here -- or rather, if there is, feel free to blame the Rehnquist Court, because the fault lies with them.

(Julian Sanchez doesn't get it and neither does Steve Clemons; and Jacob Sullum .questions whether this opinion really reflects Alito's inclination regarding the Commerce Clause to begin with.).

4. As everyone and their 10-year old knows by now, he wrote a dissent arguing that it's perfect[ly] constitutional to strip search a 10-year old girl if you have a search warrant for an adult man.

I've already discussed Judge Alito's dissent in this case, Doe v. Groody, over at Bloodless, and what follows is merely an adaptation of those comments.

In Doe v. Groody, the panel majority denied police qualified immunity for claims arising from their strip search of occupants found in a house for which they had a search warrant. The warrant form on its face did not identify the complainants as objects of the search. The affidavit in support of the warrant, however, in detail explained the frequency with which drug suspects use bystanders to secret drugs away to avoid detection, and expressly requested authorization to search all occupants found in the house at the time of the search. That affidavit, as well as the warrant form to which it was attached, was signed by the issuing magistrate without emendation or reservation. The entire document, form and affidavit, was on-hand to the parties occupying the house upon execution of the warrant.

The majority, relying upon the United States Supreme Court decision in Groh v. Ramirez, found that the failure particularly to designate the searched parties, or alternatively to incorporate by reference the attached affidavit in the warrant form's box for identifying the places or persons to be searched, was dispositive against the constitutionality of the search, and moreover was a sufficiently obvious problem to require obviation of the police officers' qualified immunity.

In Groh, however, the warrant form in question nowhere on its face incorporated the supporting affidavit by reference, while in Doe the warrant form's section discussion probable cause expressly incorporated the supporting affidavit by reference. In Groh, the affidavit in support of the warrant was placed under seal, and thus was unavailable to the parties subject to the search; in Doe, however, that affidavit was part and parcel of the warrant, and was available to the parties.

As the Court in Groh observed, the principle reason to require a detailed warrant be on site at a search is so that the parties subject to the search have a basis from which to derive the ambit of the warrant and thus to protest the search should it exceed those bounds. With the affidavit under seal, the searched parties in Groh were left to rely on the police officers' assurances as to the proper scope of the search, a constitutionally intolerable condition. Such was not the case in Doe.

In my opinion, at least at first blush, Alito read Groh more persuasively, more faithfully, than did the majority. That doesn't make Groh a good or a bad case, but that wasn't for the court of appeals to consider. The majority played looser in its application of that case than did Alito in distinguishing it. And even if it hadn't, I'd still be loath to ascribe to Alito, based on this opinion, any particularly draconian view of the Fourth Amendment, or comfortably wield the soubriquet, "Strip Search Sammy," which to me is merely emblematic of the epigrammatic approach to (or surrogate for) intellectual criticism of Alito's position in this case.

Furthermore, any discussion of Doe that doesn't acknowledge that the case concerned police officer qualified immunity, to obviate which one must show more than incidental or unknowing misconduct, is insufficient on its face. Qualified immunity implicates entirely separate concerns than a hearing seeking suppression of the evidence secured under the authority of a flawed warrant. Only where the warrant lacks a clear, facial flaw sufficiently obvious that a police officer without legal training should know it cannot stand, will that officer lose qualified immunity, a standard wholly separate from that which applies in the less forgiving suppression context.

To omit this distinction is to leave out a crucial piece of the puzzle and to comment irresponsibly. A warrant sufficiently deficient to result in suppression of the evidence secured under its ambit is not sufficient to obviate qualified immunity; indeed, the inquiries differ enough that it might not be a necessary condition, either (although necessary is more likely than sufficient). Sadly, this critical deficiency is evident on the face of critiques penned by the usually diligent Majikthise and Scott Lemieux, on whom, in Lindsay's defense, she may well have relied (as she cites him and materially tracks his criticism).

Moving right along, we reach

5. He reversed a decision that found that a school regulation against “verbal or physical conduct based on one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student's educational performance or creating an intimidating, hostile or offensive environment" was constitutional. That is, schools can't have a rule prohibiting students from calling each other "fag," "cunt," "dirty Jew," "gook," and so forth to such a degree that the bullied kid is afraid to go to school.

This, too, misstates Judge Alito's opinion in the case in question, Saxe v. State College Area Sch. Dist., which he wrote without dissent for a panel unanimous in all but one minor regard prompting Judge Rendell's brief concurrence. While Dr. B. accurately quotes parts of the rather convoluted and long-winded policy involved, her pithy summary regarding what rules schools can't enact is at best misleading, especially to the extent she claims that this ruling wouldn't even allow a policy that restricted such conduct when it rendered a student "afraid to go to school."

Indeed, this misstatement is ironic given that Alito's determination that the policy in question was overbroad (a constitutional term of art) inhered in substantial part in the fact that in its sweep the policy did not only reach speech that in fact rendered students fearful, but by its terms also reached speech merely intended to have that effect, a conjectural and contingent protection Alito demonstrates by reference to voluminous United States Supreme Court precedent the law has never afforded against discomfiting speech. Moreover, note that I used "speech" in the refutation immediately foregoing, while Dr. B. used "conduct." The speech-conduct distinction critical to the First Amendment context also lies at the very heart of Alito's ruling, and the casual conflation of the two by Dr. B. reflects a lack of appreciation of the nuances of the case.

Judge Alito's opinion rejected, first, the district court's ruling that there is a "categorical harassment exception" to the First Amendment's free speech clause, and noted, furthermore, that much of the speech fairly encompassed by the policy would not constitute actionable harrassment under federal or state law. This was critical to the court's analysis of the district court's ruling, which in turn lies at the heart of the court of appeals' assessment of same in its capacity as an error-correcting court. Basically, the district court ruled that the policy merely prohibited speech already prohibited by federal law, and therefore could not violate the First Amendment.

The federal law on which the district court relied, however, encompassed only the familiar categories of prohibited discrimination: race, color, national origin (Title VI); sex (Title IX); and disability or age (Rehabilitation Act of 1973). The policy, by comparison reachd far further. And here I rely on a long passage from Alito's opinion:

We do not suggest, of course, that no application of anti-harassment law to expressive speech can survive First Amendment scrutiny. Certainly, preventing discrimination in the workplace -- and in the schools -- is not only a legitimate, but a compelling, government interest. And as some courts and commentators have suggested, speech may be more readily subject to restrictions when a school or workplace audience is "captive" and cannot avoid the objectionable speech. We simply note that we have found no categorical rule that divests "harassing" speech as defined by federal anti-dscrimination statutes, of First Amendment protection.

This passage, it's worth noting, followed an extremely long, painstaking rejection of the district court's sloppily stated claim, the error of which was asserted on appeal. Crucially, in the subsection of the opinion immediately following, Alito hit the crux of the problem:

In any event, we need not map the precise boundary between permissible anti-discrimination legislation and impermissible restrictions on First Amendment rights today. Assuming for present purposes that the federal anti-discrimination laws are constitutionally in all of their applications to pure speech, we note that the SCASD Policy's reach is considerably broader.

For one thing, the Policy prohibits harassment based on personal characteristics that are not protected under federal law. * * * * The policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of "other personal characteristics" (which, the Policy states, includes things like "clothing," "appearance," "hobbies and values," and "social skills"). Insofar as the policy attempts to prevent students from making negative comments about each others' "appearance," clothing," and "social skills," it may be brave, futile, or merely silly. But attempting to proscribe negative comments about "values," as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person's "values," the Policy strikes at the heart of moral and political discourse -- the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about "values" may offend is not cause for its prohibition, but rather the reason for its protection: "a principal function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." [emphasis mine]

From there, Judge Alito clarifies that schools may enjoy greater rights to regulate speech than other institutions, but notes the countervailing hornbook principle of law that students do not leave their constitutional rights at "the schoolhouse gate." He then proceeds, with tremendous care, to consider whether there is a more restrictive reading of the Policy under which its patently overbroad provisions can be understood to be sufficiently limited to survive constitutional scrutiny. But as any law student in his second year can tell you, overbreadth is a bitch, and if you write what amounts to a speech code you'd be wise not to include elastic clauses that tend to encompass whatever the least durable denominator can stand. The Policy in question, however, was addled with unbounded elastic clauses; read plainly, they were totalitarian in scope.

This case is unusually easy for me because I actually firmly agree. I suspect that many of the people who get into these debates online, like I did, tended to be the brunt of the sorts of things SCASD endeavored in its policy to proscribe. But I wouldn't trade freedoms for some sort of invisible hand ensuring I never had to hear the critiques that helped me learn to get along in the world. There's no doubt in my mind, nor little room to doubt from Alito's opinion, that narrowly crafted codes designed to preclude systematic verbal harassment based on the areas protected by Titles VI and IX can survive constitutional muster. But the Policy here in question was anything but narrowly crafted.

What amazes me is that by failing to catch the critical "values" passage, lefty commentators unwittingly appear willing to deprive their students of the right to stand up for themselves to express thoughts critical of whatever curriculum constitutes orthodoxy at a given school district, given that to do so will almost invariably offend the "values" of some other student in the room. Virtually any form of legitimate dissent on a fair reading would have violated the Policy. That's the very sort of broad prior restraint the First Amendment simply doesn't allow; its also the sort of thing utilized, where it's permitted, to squelch unpopular viewpoints and dissent generally.

If that's what people want for their kids, there's always Catholic Schools. But I don't believe conformity of any sort prescribed from on-high is how you raise informed and empowered citizens; nor do I think the futile effort to protect children from all offense for the duration of childhood prepares anyone for the gauntlet of adult life.

Returning to Dr. B's problematic speech-conduct conflation, Judge Alito wrote:

There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written exprssion on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. [citations omitted; emphasis in original]

There are a few cases enumeratd by Dr. B. that I've omitted due to constraints on my time and energy, presumed limitations on reader patience, and the competing goals of actually proofing this once and getting it out before I go to sleep (and preferably in bed and not sprawled over my keyboard (I've already given up on having a real dinner; the things I do for you people)). As I said at the outset, sources that serially misstate the cases in question, or unwittingly rely on others who do the same, need only commit that offense once or twice to call into question their credibility in other analyses. I might come back to those cases Dr. B mentions later, but for now I'm going to end on a short discussion of a more preposterous misrepresentation that, thankfully, can largely be refuted in Alito's words rather than my own.

9. He agreed, reluctantly, that a lawsuit for wrongful death in the case of a stillbirth should be dismissed, since New Jersey law prohibited such suits; but in so doing, he noted that the fact that case law distinguished a "fetus" from a "person" was "unfortunate."

Before I even begin, I note that Dr. B doesn't cite the case, but rather some registration-required opinion piece in the Twin Cities Pioneer Press. But in this case she so utterly misrepresents the case that I need hardly even explain the majority to demonstrate the mendacity of the claim, especially her proposition following the last semi-colon which simply misquotes Alito in misleading fragments. (Ironically, Dr. B and others tend to refer to Alito as straining to interpret things to his liking; contrariwise, I find most of the strain evident in the hasty criticisms of his work circulating around the blogosphere, and this case is merely the most obvious example.) Here is Alito's entire concurring opinion in Alexander v. Whitman, the case at issue:

I am in almost complete agreement with the court's opinion, but I write to comment briefly on two points. First, I think that the court's suggestion that there could be "human beings" who are not "constitutional persons" is unfortunate. I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a "person" within the meaning of the Fourteenth Amendment. However, the reference to cosntitutional non-persons, taken out of context, is capable of misuse.

Second, I think that our substantive due process inquiry must be informed by history. It is therefore significant that at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized. [Citations omitted]

That's it. That's all. Simply put, he does not characterize as "unfortunate" the clear constitutional rule denying personhood to a fetus. Rather, he objects to a particular terminological game played by the majority in its effort to address fairly even the claimant's most dubious argument, relying on claimant's unsupported demand that the court recognize her fetus as "human," a term devoid of legal meaning in this context (hence Alito's cautionary note), from conception forward.

Now I will pause to observe something else of critical importance in this case: the majority, in rejecting the claimant's substantive due process claim that New Jersey had violated her fundamental right in denying her the right to maintain a lawsuit in her claimed capacity as executrix of the estate of her stillborn child, cited Roe v. Wade in its most expansive reading chapter and verse -- like it was its job. And this, this unnecessarily broad reading of Roe, is what Judge Alito plainly joins without cavil.

There's an additional note: the stillborn fetus in Alexander registed healthy vital signs a mere fourteen minutes before its birth at the end of its natural term. This is notable for one reason: at that stage of pregnancy, we are far afield of Roe's rigid trimester framework and Casey's viability variant. That is to say, just prior to birth, states are entirely free to ban abortion entirely. If Alito were looking for a reason to distance himself from the majority ruling, or to assert the personhood of the fetus in question under the circumstances at bar, and argument from Casey was readily available. He made no such effort; indeed, he sounds wholly comfortable with the majority's reading of Roe, which unequivocally reflected the orthodox liberal view of that case's import and rationale.

This does not suggest that Alito likes Roe anymore than it suggests he would overturn it at the first opportunity. What it demonstates, however, is that the intellectual dishonesty of which he has been serially accused is indeed far more representative, at least in connection with the above example and those that preceded it, of his reflexive critics.

Every writing by Alito I have consulted since his nomination was announced has reflected an uncommony even judicial temperament, a fundamental humility, and an abiding respect for the law as he reads it, which is always readily defensible in terms of the precedents to which he has been bound as a circuit judge. Furthermore, I have yet to have seen him do any sort of editorializing; he appears to determinedly avoid offering dicta, inoperative conjectural language, in his opinions, a sign of tremendous restraint rarely demonstrated by his colleagues on the left or right.

I advert in closing to where I began: he's not my first choice. He's not even on my long list. He's a conservative jurist who is sure to decide cases, should he be confirmed, that will displease me. But that's true of any justice, and in itself is essentially an objection devoid of content. No judge will please any observer all the time, if he's making even a token wave at adhering to his oath to uphold the law.

After this survey, I can only caution anyone interested in informing him or herself about Alito's record to rely on the primary sources, his own opinions. Trust no one. Not me, not anyone, but be especially cautious of minimal or fractured quotation and of people who don't bother to provide links to the governing materials. Judge Alito deserves to be evaluated in the terms of his own workproduct, not an interpretation of an interpretation of a jeremiad that was pre-composed as a general-purpose why-I-hate-Bush's-right-wing-nominee before the nominee was even announced.

I doubt I'm done with this topic, but this certainly is enough for now.

In the meantime, if you want more in this vein, Julian Sanchez clearly shares my concerns.

More generally, there are links that seem not to fall into the above-identified traps, and I'd be remiss not to point them out:

Nick Gillespie has interesting thoughts on the effect of Alito's long-term government service to his inclination to rule in the government's favor.

And Orin Kerr rocks my socks.

UPDATE: Bitch Ph.D. offers some comments in her defense against the claim of "intellectual dishonesty" in a more recent thread. Insofar as I think the discussion informs her approach to what she wrote, and my responses further circumscribe and elaborate on the reasoning behind my critique, I urge you to take a look.

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