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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.

David Frum is on Crack

[ 0 ] January 19, 2009 |


Watch Frum claim that the West Bank is not under occupation, and then watch Frum get his ass handed to him. In addition to the substantial portions of the West Bank that are literally being occupied by Israelis right now, the West Bank as a whole is almost entirely under Israeli military jurisdiction, and Palestinian political authorities are sharply circumscribed in their range of action.

…the war may not have had the desired effect on Kadima’s electoral prospects:

The first polls taken after the cease-fire took effect indicated that the Right in general and the Likud in particular had been helped by the war.

A Channel 2/Ma’agar Mohot poll predicted that the Right-Center bloc would win 65 seats and the Left-Center bloc 55. A Channel 10/Dialog poll put the divide at 64-56. The first poll predicted a 31-23 Likud victory over Kadima, while the latter said Likud would win 29-26.

That said, I don’t know what the polls prior to Operation Cast Lead indicated.

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.

Saletan: Foreign Policy Wank

[ 0 ] January 18, 2009 |

If you were to apply the technocratic logic of the war on drugs to Israel’s difficulty in eradicating the tunnels in Gaza, you’d be waging well to assume that the result would sound like the slow jabbering of someone who’d taken a bad spill down a flight of stairs. Until you read Will Saletan’s thoughts on the question, and then you’d realize that the results are even worse than the usual models could have predicted.

If you’re in the mood for spoilers, Saletan concludes that Israel should simply resign itself to bombing the Gazan-Egyptian border between two and four times a year. Really. I can’t imagine how that could go wrong.

Lisa, I want to buy your rock

[ 0 ] January 17, 2009 |

Homer: Not a bear in sight. The Bear Patrol must be working like a charm.
Lisa: That’s specious reasoning, Dad.
Homer: Thank you, dear.
Lisa: By your logic I could claim that this rock keeps tigers away.
Homer: Oh, how does it work?
Lisa: It doesn’t work.
Homer: Uh-huh.
Lisa: It’s just a stupid rock.
Homer: Uh-huh.
Lisa: But I don’t see any tigers around, do you?
Homer: Lisa, I want to buy your rock.

I hope that if I am ever as spectacularly wrong about a major policy issue as Peter Beinart has been about Iraq, I would feel some urge to keep my mouth shut about the relevant issue. Beinart clearly doesn’t feel that way. Now he’s advising Democrats to admit that “the surge worked,” as an act of intellectual hygiene.

But if Iraq overall represents a massive stain on Bush’s record, his decision to increase America’s troop presence in late 2006 now looks like his finest hour. Giventhe mood in Washington and the country as a whole, it would have been far easier to do the opposite. Politically, Bush took the path of most resistance. He endured an avalanche of scorn, and now he has been vindicated. He was not only right; he was courageous.

It’s time for Democrats to say so. During the campaign they rarely did for fear of jeopardizing Barack Obama‘s chances of winning the presidency. But today, the hesitation is less tactical than emotional. Most Democrats think Bush has been an atrocious president, and they want to usher him out of office with the jeers he so richly deserves. Even if they suspect, in their heart of hearts, that he was right about the surge, they don’t want to give him the satisfaction.

This is absurd. First, it’s far from clear what role, if any, a 15% increase in total U.S. troop deployment in Iraq has played in the country’s journey from something close to all-out civil war two years ago, to today’s merely horrifying levels of sectarian violence (500 Iraqis are still dying in such violence each month, the per capita equivalent of another 9/11 attack in the U.S. every two weeks. This is what strikes Beinart as a marvelous success, requiring bipartisan hosannas).

Indeed, Beinart himself acknowledges that a host of factors have no doubt played a role in the relative decline of violence in the country. That a relatively modest increase in the U.S. troop presence might in and of itself played no role whatsoever (as opposed to, say, bribing tribal leaders in Anbar, and allowing Baghdad to become almost completely “ethnically cleansed,” as well as the purely internal dynamics of Iraqi politics) is quite possible, yet Beinart is so eager to be the classic Beltway centerist voice of reason that he doesn’t even consider that possibility.

Even more objectionable is Beinart’s insistence that President Bush showed great courage by ordering the surge. Do we really need any lectures from conspicuously non-combatant warmongering pundits of military age on the meaning of that word? Two years ago Bush was a lame duck president facing a compliant and spineless Congress, who he knew full well would never have the political will to resist whatever new war strategery he deigned to jam down its collective throat. If he had admitted that the invasion of Iraq was a tragic mistake — now that would have required something like courage. Instead he “stayed the course,” despite the immense damage his bull-headed idiocies have wreaked.

What else has the man ever done in his whole life but that?

Continuing: As several comments note, another key aspect of the matter Beinart overlooks is that the whole point of the surge was to help improve the security situation so that Iraq could begin to become something other than a shattered country and a failed state. On those terms, it’s very unclear whether any real progress has been made.

BSG!!!1!

[ 0 ] January 17, 2009 |

God, that was some depressing TV. Guess we know who the 12th cylon is, at least. Be careful of spoilers in comments.

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.)

QOTD

[ 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…

Selling the product

[ 0 ] January 16, 2009 |

USC coach Pete Carroll isn’t happy about QB Mark Sanchez’s decision to enter the NFL draft. Of course that decision is bad for Carroll’s team, but Carroll is sophisticated enough to know that, for recruiting purposes, that can’t be the basis of his objection to Sanchez leaving (Carroll’s recruiting pitch is largely about how USC prepares players for the NFL).

So Carroll cites what he claims is a high failure rate for QBs who enter the draft early. He doesn’t compare that rate to the success rate of senior entrants, so it’s a useless statistic.

His other claim is that NFL teams would prefer for Sanchez not to enter the draft this year, since they don’t see Sanchez as a “finished product.” This is such an absurd argument — as if Sanchez’s decision ought to turn on what NFL teams think is good for them! Of course they would prefer for Sanchez to spend another year at USC — that lessens their risk by giving them more information about what they’re buying. However it greatly increases Sanchez’s risk. Maybe he’ll get hurt. Maybe he’ll have a less than stellar year.

As it stands, Sanchez will surely be one of the two top QBs in the draft, because several top juniors decided not to come out. That practically guarantees him a first round selection, which in turn guarantees him several million (and potentially tens of millions) dollars in signing bonus money.

From an economic perspective it would be crazy for Sanchez not to enter the draft. Carroll’s argument is essentially that Sanchez will be getting $10 million now, but he might get $50 million if he stays another year. Assuming Sanchez’s current net worth is around zero, this argument is very weak. In practical terms, the difference between zero net worth and $10 million is almost infinitely larger than the difference between $10 million and $50 million. And Sanchez’s odds of going from being worth $10 million to zero in the next year are way, way higher than his odds of going from $10 million to $50 million.

Friday Cat Blogging

[ 0 ] January 16, 2009 |

What’s a crappy ex-president to do?

[ 0 ] January 16, 2009 |

At his last press conference, Bush pondered the question of how he might occupy his time after leaving office.

I’m a Type A personality. You know, I just — I just can’t envision myself, you know, the big straw hat and a Hawaiian shirt sitting on some beach.

Jonathan Schwarz has a good idea.