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A Gracious Tribute to the Outgoing President

[ 0 ] January 20, 2009 |

Or, if you prefer without the visuals of the originally intended target:


Sixth Amendment Switches

[ 0 ] January 19, 2009 |

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that under the 6th Amendment’s right to a jury trial, any factor that increased a defendant’s sentence had to either 1)be admitted in a plea agreement or 2)proven in front of a jury. (The case was later held to make federal sentencing guidelines advisory rather than binding.) Although it didn’t seem to generate much discussion given the holding on the same day limiting the exclusionary rule, last week the Supreme Court created a siginifcant exception to the Apprendi rule, holding that factors that could permit the application of consecutive rather than cocurrent sentences could be found by a judge alone.

Unlike in many civil lberties cases, this result had nothing to do with Bush’s apponitments. Alito voted with the majority, but the justice he replaced (O’Connor) consistently dissented from Apprendi and its progeny. Somewhat surprisingly, the new Chief Justice dissented in this case while Rehnquist surely would have been with the majority, suggesting that Roberts is slightly more moderate on civil liberties than Alito (of course, so are J. Edgar Hoover and Harry Callahan.) The case came out he way it did because Stevens and Ginsburg switched sides , with the latter writing the majority opinion.

Since I’ve made fun of Scalia’s own flexibility in applying Apprendi in the past, I feel compelled to add that his dissent in this case seems quite devastating to me. The best I can say for Ginsburg and Stevens is that where Scalia flipped in a run-of-the-mill drug and gun possession case, the set of facts in this case were at least genuinely appalling: the defendant twice (after breaking and entering) sexually assaulted an 11-year-old girl. Still, even if we assume for the sake of argument that 28 years would be more just than a lesser sentence, I don’t think that justifies winking at a maor constitutional principle. It seems to me that Apprendi requires that Oregon prove the factors that went into aggravating a sentence be adduced at plea or proven in front of a jury, and I think that principle is sound. As much as I admire both, I think in this case Stevens and Ginsburg used a tough case to make bad law.

Republican Governance: Tragedy and Farce

[ 0 ] January 19, 2009 |

In fairness, I think the comparison is unfair to Hoover…

Undermining Civil Liberties For A Futile Policy

[ 0 ] January 18, 2009 |

As part of a comprehensive look at the costs of the War On (Some Classes of People Who Use Some) Drugs, Radley Balko notes that it’s where civil liberties go to die:

“The Fourth Amendment has been virtually repealed by court decisions,” Yale law professor Steven Duke told Wired magazine in 2000, “most of which involve drug searches.”

The rise of the aforementioned no-knock raid is one example, as is the almost comically comprehensive list of reasons for which you can be legally detained and invasively searched for drugs at an airport. In many areas of the country, police are conducting “administrative searches” at bars and clubs, in which an obvious search for criminality is cloaked in the guise of a regulatory inspection, obviating the need for a search warrant.

But the drug war has undermined the rule of law in other ways than its evisceration of the Fourth Amendment. Take the bizarre concept of asset forfeiture, an attack on both due process and property rights. Under the asset forfeiture laws passed by Congress in the 1980s (then reformed in 2000), property can be found guilty of a drug crime. The mere presence of an illicit substance in your home or car can allow the government to seize your property, sell it, and keep the proceeds. The onus is then on you to prove you obtained your property legally. Even the presence of an illicit drug isn’t always necessary. The government has seized and kept cash from citizens under the absurd argument that merely carrying large amounts of cash is enough to trigger suspicion. If you can’t prove where you got the money, you lose it.

If Fourth Amendment protections were being narrowed in cases where the police were otherwise unable to solve violent crimes, this would at least poses difficult questions. But this hasn’t been the case; the professionalization of police forces required by the Warren Court hasn’t — despite many hysterical predictions — substantially undermined the ability of police forces to fight violent crime. Rather, the worst watering down of the Fourth Amendment has generally come in cases where the effect of violations of constitutional liberties have the effect of Person Y selling drugs rather than Person X selling drugs. This isn’t even remotely defensible.

Taibbi on Friedman II 1/2: The Smell Of Fear

[ 0 ] January 17, 2009 |

OK, I wish he hadn’t opened with a but-John-Edwards-lives-in-a-big-house fallacy, but you’re looking for the quality of the venom rather than the quality of the ideas, and once again Taibbi delivers:

But whatever, let’s concede the point, forget about the crazy metaphors for a moment, and look at the actual content of Hot, Flat and Crowded. Many people have rightly seen this new greenish pseudo-progressive tract as an ideological departure from Friedman’s previous works, which were all virtually identical exercises in bald greed-worship and capitalist tent-pitching. Approach-and-rhetoric wise, however, it’s the same old Friedman, a tireless social scientist whose research methods mainly include lunching, reading road signs, and watching people board airplanes.

Like The World is Flat, a book borne of Friedman’s stirring experience of seeing IBM sign in the distance while golfing in Bangalore, Hot,Flat and Crowded is a book whose great insights come when Friedman golfs (on global warming allowing him more winter golf days:“I will still take advantage of it—but I no longer think of it as something I got for free”), looks at Burger King signs (upon seeing a “nightmarish neon blur” of KFC, BK and McDonald’s signs in Texas, he realizes: “We’re on a fool’s errand”), and reads bumper stickers (the “Osama Loves your SUV” sticker he read turns into the thesis of his “Fill ‘er up with Dictators” chapter). This is Friedman’s life: He flies around the world, eats pricey lunches with other rich people and draws conclusions about the future of humanity by looking out his hotel window and counting the Applebee’s signs.

And it gets better, especially with regards to Taibbi’s Friedmanesque contributions to social science. (See the previous iteration here.)


[ 0 ] January 17, 2009 |

Sad, and yet true:

Thinking back to George W. Bush’s farewell address it’s striking that the best thing the man can say about his record in office is that only once during his term in office were 3,000 people killed by foreign terrorists. And it’s really striking that other people in the conservative movement seem to take this “accomplishment” very seriously.

The man did warn us about the soft bigotry of low expectations…

Taking The Whaaaaambulance To Court

[ 0 ] January 15, 2009 |

Speaking of Supreme Court qualifications, I would definitely support trying to find justices who don’t cry like an especially immature four-year-old who just dropped their lolly in the sandbox just because some people voted against his confirmation. Admittedly, this may mean a pretty small pool of wealthy conservative Republican white men, seeing’s how they’re the self-described Most Oppressed People on Earth, but I’m prepared to make that non-sacrifice. (HT: Atrios)

Pretending that Bush v. Gore Was Constitutional Law: Minnesota edition

[ 0 ] January 15, 2009 |

Michael Stokes Paulsen, in the fine tradition of Bush v. Gore itself, attempts to argue that the recount that gave the Minnesota Senate election to Al Franken “is an obvious, embarrassing violation of the Constitution.” This argument, as you would expect, consists almost entirely of blatant mischaracterization of the facts:

  • Despite Paulsen’s repeated assertions, Bush v. Gore was not a 7-2 decision. No dissenter joined any part of any majority opinion, including its equal protection analysis.
  • This isn’t just a pedantic point, because the equal protection rationale (such as it was) used by the majority was fundamentally different than the one advanced by the dissenters (which required an appropriate remedy.) Paulsen claims that under Bush v. Gore “Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation.” I agree it would be nice if this had been Bush v. Gore‘s holding, but of course the Court said no such thing (“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.”) Nowhere did the Court claim that complete uniformity was required to comport with “minimal safeguards,” and indeed the Court declined to say anything beyond the specific facts before it. And, of course, the Court’s remedy makes clear that unformity is not a Constitutional requirement, since the recount that gave Bush the office was not remotely uniform. Despite Paulsen’s attempt to skate around this question, you can’t just seperate the remedy from the holding.
  • Like most of the Court’s apologists, Paulsen also convieniently ignores the fact that the Florida courts in 2000 did not use a uniform recound standard because the Supreme Court told them not to. Paulsen has to ignore this, of course, because it destroys his claim that Bush v. Gore stands for a requirement for recounts “not admitting local variation.”)
  • Paulsen asserts that “subsequent media counts confirmed that Bush won anyway, under any uniform standard.” Sadly, no!
  • And, finally, like most “Al Franken stole the election” types, Paulsen never gets around to saying what was wrong with the decisions that favored Franken. The fact that different boards reached different results, of course proves nothing; it doesn’t even prove that they were applying different standards (although the Constitution as currently interpreted clearly allows them to do so anyway.) In particular, he fails to put forward an argument for why improperly excluded absentee ballots shouldn’t be counted, for what I take to be obvious reasons.

Of course, one suspects that Paulsen doesn’t really believe that vote count systems must be uniform (I must have missed his op-eds making such claims when local variations in the vote count came out in Coleman’s favor.) Rather, in a faithful application of Bush v. Gore, we seem to know when a count is sufficiently constitutional at the exact point at which the Republicans win. Fortunately, the Minnesota courts won’t buy it and the Supreme Court isn’t going to revisit its 2000 atrocity.

Gutting the Exclusionary Rule

[ 0 ] January 15, 2009 |

For people who care about civil liberties, it was definitely not a good thing when the Roberts Court decided to hear an exclusionary rule case this term. The Court’s Wednesday decision in Herring v. U.S. confirmed these fears, holding that evidence obtained after an illegal search (police conducted a search based on an expired warrant, which appeared to still be valid because of their own negligence) did not have to be excluded under the circumstances. For reasons I went into in the post linked above, I strongly disagree with the Court’s judgment — the gutting of the exclusionary rule reduces incentives for state officials to comply with constitutional commands.

And it’s even worse than it might have been. Tom Goldstein notes that the case goes well beyond previous exclusionary rule exceptions:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.

As Breyer noted in his dissent, the Court had previously confined the “good faith” exception to cases where negligence by other actors led police to conduct an illegal search. Contra Breyer, this never made much sense — it’s far from clear why the exclusionary rule should be addressed only to police misconduct rather than illegal actions by all state actors — so the Court refusing to confine the exception to non-police actors has its own grim logic. And while I’m not without a certain sympathy for the idea that it’s appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug poession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state’s side. There’s no serious weighing of costs and benefits being done here at all.

Finally, it should be noted that once again the purported “minimalism” of Roberts is a complete farce. Roberts and Alito aren’t substantively “minimalist” even if they abjure grand theory, and this will be far from the last 5-4 Roberts decision that (however the opinion chooses to characterize the precedents) revises a substantial body of law in an inevitably reactionary direction.

[X-Posted at TAPPED.]

Patrick McGoohan, 1928-2009

[ 0 ] January 15, 2009 |

This is really djw’s department, but in the interim a fine tribute to McGoohan can be found here.

"The Administration is bending over backwards to subsidize an enormously profitable corporation"

[ 0 ] January 14, 2009 |

Good to see that the Yankees’ fleecing of the public fisc is attracting more attention, although in policy terms it’s almost certainly too little too late. In fairness, Thompson doesn’t seem to be considering the immense economic rewards that come from such subsidies; after all, without them, it’s hard to imagine that the South Bronx and Willet’s Point would be the engines of economic growth and vibrant culture that they are today…

Great Moments In Hackery

[ 0 ] January 13, 2009 |

Speaking of Stuart Taylor and Evan Thomas, who can forget their classic Newsweek cover article asserting that Sam Alito was a moderate who would disappoint conservatives? After all, he liked baseball and had a family –pretty clear evidence that he wasn’t the wholly doctrinaire reactionary more trivial sources of evidence like his judicial record would suggest.

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