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You know it when you see it

[ 0 ] June 8, 2009 |

Following up on Scott’s post, Potter Stewart was famously derided for describing “obscenity” as something that can’t be pinned down by formal definition, but which nevertheless can be subject to a “you know it when you see it” test.

The mocking of this view always struck me as odd, given that huge numbers of legal standards (unavoidably) operate along similar lines.

Consider the ABA’s Model Code of Judicial Conduct, which says “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”

The only way the facts in Capteron could be more egregious would be if the litigant had sent a certified letter to the judge telling him he’d give his campaign three million bucks if the judge cast the deciding vote the right way in the litigant’s $50 million lawsuit. West Virginia has adopted the Model Code, but like in almost every other jurisdiction the enforcement of that code is left up to the discretion of individual judges, who decide for themselves if, for example, being given three million bucks by a litigant in a case pending before the court in which the judge will cast the deciding vote might lead to the the judge’s impartiality being subject to reasonable questioning.

Roberts’ dissent adds up to the claim that drawing any line in these circumstances is worse than drawing no line at all, because of slippery slope concerns. That’s the same logic that leads some first amendment absolutists to claim laws against child pornography are unconstitutional — and it’s about as plausible.


Wankers of the Day

[ 0 ] June 8, 2009 |

Hiram Monserrate and Pedro Espada Jr. This is way-bayond-Lieberman wankery. Espada, in particular, has always been a world-class practitioner of the onanistic arts.

Due Process and Judicial Elections

[ 1 ] June 8, 2009 |

In a pleasantly surprising decision, the Supreme Court today held 5-4 (along predictable ideological lines with Kennedy as the swing vote) that West Virginia judge Brent Benjamin violated the due process rights of plaintiffs in a civil suit when he refused to recuse himself despite the fact that the chairman of the company appealing the verdict in favor of the plaintiffs had spent more than $3 million on Benjamin’s campaign. Kennedy’s opinion for the Court emphasized the extreme nature of the facts in holding that the appearance of bias in this case could not be consistent with due process:

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated.

As the passage above suggests, Roberts’s dissent focuses on the alleged inapplicability of the rule, coming up with a 3940-part parade of horribles lamenting the fact that judges will actually have to apply discretion in determining whether the risk of judicial bias “is too high to be constitutionally tolerable.” (In his short dissent, Scalia combined his trademark advocacy of bright-line rules with his trademark showy-but-unilluminating rhetorical move, in this case quoting a Talmudic maxim.) At least Scalia and Thomas are being consistent, however. Note that when it comes to protecting the interests of big business Roberts and Alito have no objection to due process standards that require substantial judicial discretion. (And, certainly, reducing the appearance of judicial bias seems more central to due process concerns than limiting punitive damages.)

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today’s ruling. To the extend that today’s decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

[X-Posted to TAPPED.}

Strasburg Superstar?

[ 0 ] June 8, 2009 |

Recently in comments somebody noted with regret that Stephen Strasburg would be wasted as a superstar on a bad team; using the (probably not very good) example of Brien Taylor, I noted that it was unlikely that Strasburg would be a superstar, as most “best pitching prospects in history” haven’t been close. This is a little more systematic in making the same point.

Or another way of putting it is that easily the best pitcher taken #1 overall was…Andy Benes. (With position players, on the other hand, you have first ballot HOFers like Griffey, Chipper and Slappy, plus Strawberry (HOF caliber player in career a little too short for Cooperstown) and Baines (very good player forever) and some guys like Burrell and Burroughs who were at least as valuable as Benes. And, yes, Mark Prior would almost certainly would have been better than Benes or Bannister or Belcher had he been healthy — but that’s the point. Pitchers tend to get hurt, and even if injuries don’t stop you from having a career they sap a pitcher’s ability. Strasburg almost certainly won’t be worth what Boras will try to get for him.

The UK Sends Fascists to Brussels/Strasbourg; Sweden Responds With Pirates.

[ 0 ] June 8, 2009 |

This does not surprise me in the least.  It’s been well known in the pol sci lit that the EU Parliament is best considered a “second order” election since the 90s (which is a fancy way of saying the EU Parliament is a largely powerless body devoid of meaning or purpose, so voters see fit to have all manner of fun with the process).  As such we will see a general protest vote against sitting governments as well as a shift from larger established parties to smaller, more radical (left or right) parties (very good paper by Marsh here).  What did surprise me is the general shift to the right across the entire EU, regardless of the ideological proclivities of the sitting government.  The right of center parties held their own in Germany and France, both governed by such (to be fair, Germany is in the midst of a Grand Coalition, but the Social Democrats are the junior partner, and they did get hammered.  Sarkozy’s party in France actually had the plurality of votes in the EUP election, which cuts against the grain).  

So the UK sends two BNP MEPs to Brussels, and 13 UKIP (United Kingdom Independence Party; they do what it says on the tin) MEPs.  It doesn’t make Britain racist, does it?  No more or less than it was in 2004.  What was impressive is just how hard Labour were pounded.  Labour finished third, behind the Tories and UKIP.  They lost an election in Wales for the first time since 1918.  In the Southwest England constituency, Labour finished fifth, behind not only the Tories and UKIP, but also the LibDems and the Greens.  The Southwest lost its sole Labour MEP as a result of this election (the EUP elections in England, Scotland, and Wales use PR, so the SW constituency has six MEPs; just to keep things interesting, Northern Ireland uses STV to elect its MEPs).
I’d say something about the relative success of The Party for Freedom in the Netherlands, led by Geert Wilders, who is banned from entering the UK due to his extremism, but at least the two BNP MEPs will have some drinking buddies in Brussels (and I know a few good pubs they can all hang out in together) but I can’t be bothered.  I do find the situation where a sitting MEP is barred from visiting one of the constituent states of the EU hilarious.  It would be like if a sitting Senator from North Carolina once said . . . oh, hang on.
A few more random thoughts on this: you have to embrace a country (Sweden) that elects one or two (presumably they’re still counting) MEPs from The Pirate Party.  A student, possibly one of mine, possibly in one of my classes, might have possibly once penned the following on a final exam: “equally important is that all country-members of the European Economic Community have the same currency, the Euro”.   Said student is British, attending a British university, presumably paid in Sterling at his or her part time job.  I wonder if this student voted on Thursday.  Finally, this result, while anticipated, doesn’t much help the case for Gordo.  

Shelby Steele’s Identity Politics

[ 0 ] June 8, 2009 |

Shorter Shelby Steele: Because she is a Latina, Sonia Sotomayor is ipso facto unqualified to be nominated to the Supreme Court. Her extremely impressive formal qualifications are beside the point; by definition, only white men and maybe reactionary African-American men can be qualified for the office.

Is the Cajun Primary the Answer?

[ 0 ] June 8, 2009 |

The comments to my Anarchy in the UK post on Thursday spawned an interesting discussion surrounding the cause of polarized politics in the CA state legislature.  While I agree the damning variable that impedes compromise is the 2/3 rule for budgetary measures, I still maintain that closed primaries tend to produce candidates to the left or right of the party support writ large.  There’s heaps of poli sci literature on this: the composition of a primary electorate is more engaged, and more ideological, on average, than either the support for either party in general, or the general electorate, thus you’re more likely (not always, but more likely) to get candidates more ideologically inclined than the general party support.

While I was reading my new Economist on Saturday (when my 2 yr 8 month old daughter would let me, that is) I was pleasantly surprised to see an article on the Washington State primary system (and the article juxtaposed the WA system against the mess in CA, which isn’t sporting).  WA used to have a blanket primary, which is the system I grew up with: no party registration, vote for a single candidate for each office, and the top vote getters from each party proceeded to the general election.  That is, until California adopted a similar system, which was in turn torpedoed by the USSC in California Democratic Party v Jones in 2000.  As collateral damage, that case also stuck down the system used in WA and Alaska.
Washington would not be deterred, and wide opposition existed against a closed primary used in ’04.  The resulting system results from the passage of I-872 in 2004, and was first used in 2008 (I believe — I now vote in the ‘Democrats Abroad’ primary; hey, we get seven entire delegates to the convention man, which I think puts us somewhere between Guam and the American Samoa in terms of influence).  It’s very similar to the Louisiana system (insert gratuitous comment about the suitability of taking pointers on political systems from said state) in that the top two vote getters proceed to the general election, regardless of party.  In theory, this should reduce the chances of ideological outlier candidates, as it creates an incentive for moderation.
I-872 was tossed by the 9th Circuit, but upheld by the USSC in 2008.  Having essentially grown up in WA, and considering my normative view that elections ought to reflect the policy preferences of the electorate as closely as possible, I find much merit in such a system.  However, a legitimate question regarding the role of parties in this process remains.  In the UK, candidates standing for Parliament are selected by their party, not the electorate.  The same is true in the NL, where I used to live; a candidate’s ordinal placement on the party list is a function of the party leadership.  In the US, the closed primary is the norm, thus limiting candidate selection to a declared subset of the electorate.  In WA, the party hardly matters.

The Deadliest Game

[ 0 ] June 8, 2009 |

Via Mr. Trend, we read of this morbid collection of stories about people killed in baseball-related injuries. Trend is right to wonder why the article fails to mention Ray Chapman (or a this more recent echo), but I was more surprised to learn that

[i]n the past 150 years, only one fan at a major league baseball game has been killed by a foul ball—a 14-year-old in Los Angeles named Alan Fish. The liner that fractured Fish’s skull came off the bat of Dodger pinch-hitting specialist Manny Mota…

Ron Carlson wrote a great short story in 1994 called “Zanduce at Second,” about a Baltimore Orioles’ third baseman who kills about a dozen people with foul balls during a stretch of several weeks. He can’t get a proper hit to save his life, but he can take out innocent fans almost at will. After reading that, I always wondered why life didn’t more often imitate art (at least at ballparks more crowded than the Metrodome, where the odds of a foul liner hitting an empty seat were a virtual lock.) I’m sure someone more mathematically capable than I could run a moderately simple calculation that shows that one dead fan in a century and a half is about right (based on the number of dangerous foul balls in any one game and the number of points on the human body that, having been struck, could lead to death, plus who the hell knows what other variables you’d need to know). But still. Only one?

Sunday Night Videos

[ 0 ] June 8, 2009 |

Advocate of Arbitrary Torture Shows Lack of Ethics

[ 0 ] June 7, 2009 |

Although I regret this particular manifestation highly, it’s obviously not surprising that Ed Whelan is a reprehensible, thin-skinned bully. (Who apparently can’t use a search engine.) Or as Cole says:

For those of you keeping score at home, the current President of the Ethics and Public Policy Center not only worked for the Bush administration OLC while they were creating the legal justification for torture, but is now using their email address to send juvenile emails while outing anonymous bloggers because they pointed out he was wrong.

Meanwhile, for anyone tempted to read any of Whelan’s “analysis” of Obama’s judicial nominations, I would just get your relentless parade of vacuous cliches — especially embarrassing in a post-Bush v. Gore era — from Pajamas TV commentators; at least they’re funnier when they’re mangled.

UPDATE: Jonathan Adler says in comments:

Do you have a citation for your claim that Ed Whelan is an “advocate of arbitrary torture”? Others, such as Andrew Sullivan, have apologized making such claims, as Whelan did no work on interrogation-related issues at OLC and, to my knowledge, has never written in defense of coercive interrogation techniques.

Fair enough; I haven’t thought carefully about the responsibility borne by anyone who worked at OLC in that era and hasn’t spoken out, but absent further information I retract this specific charge of supporting torture. Obviously, I stand by my evaluation of his appalling behavior with respect to publius (and certainly don’t agree that his posts about Whelan weren’t “substantive.”)

…OTOH, Matt Weiner in comments:

Also, here‘s Ed Whelan on Jack Goldsmith’s book:

But, as I hope to discuss in follow-on posts, Jack’s book is far more than a discussion of the Bush administration’s understanding and exercise of presidential power. It is, among other things, a deeply conservative critique of the development in recent decades of various “lawfare” constraints on the President’s exercise of traditional wartime powers.

In the current political context, criticism of “‘lawfare’ constraints on the President’s exercise of traditional wartime powers” means supporting the theory that the executive ought to be able to do whatever he wants in the name of preventing terrorism, unrestrained by any laws (sorry, “lawfare”). And Whelan knows full well that what the executive wanted to do was to torture. True, he weasels around this by saying that he is “not well positioned to comment” on the issues, but anyone who’s been paying attention knows what he means. If someone in 1930s Germany talked about the importance of the government’s being able to assume extraordinary powers in a state of emergency, we’d know damn well what they meant.

And here Whelan endorses the idea that torture could well have prevented another terrorist attack, and if it had done so it would’ve been wrong to prevent torture. (I haven’t read Goldsmith’s book, so I can’t comment on whether this is an accurate representation of what Goldsmith thinks; in any case Goldsmith has considerable honor as someone who upheld the rule of law in the face of the Bush Administration’s torture policies, whereas on his best account Whelan was a bystander. I think I’m running out of allowable links, but at Volokh’s Dilan Esper says “he seems to be sorely misreading Goldsmith’s position… Goldsmith’s central point… is that the best way to INCREASE executive power is to do it lawfully, because then there is not as much pushback from other institutions.”)

As Sullivan says, “if anyone dares imply that a member of Bush’s torture-authorizing OLC, who refuses to say what his position on waterboarding, could be, you know, in favor of torture, he goes ape-shit.” Whelan doesn’t deserve a scrap of credit on this issue, and his writings seem designed to obfuscate his defense of torture just enough that professional smoke-blowers (sorry, former directors of environmental studies at the Competitive Enterprise Institute) can demand retractions.

That’s Some Catch…

[ 0 ] June 7, 2009 |

Shorter Erin Manning: The superflous amendments tacked onto same-sex marriage legislation to preempt the silly arguments of paranoid cranks prove that the arguments made by paranoid cranks were correct.


Friday Night Videos

[ 0 ] June 6, 2009 |