The Law & The Courts

Jan 06

Yesterday, I, a generally pro-Obama left-centrist, called Obama’s “non-recess recess” appointment of Richard Cordray an unjustifiable abuse of power. Now, here comes conservative/libertarian blogger Dale Franks, defending President Obama on the issue — “as distateful as it is to me.”

Here’s the blog post. It’s well worth a read if you care about this issue. Money quote:

At the very least, a colorable argument can be made that the mere existence of pro-forma sessions held for the specific purpose of disallowing recess appointments, during a time when the Senate is unable to meet to discharge its advice and consent functions, is itself an unconstitutional usurpation of the president’s Constitutional powers. There is nothing in the Constitution to indicate the president’s recess appointment power is any less important than the Senate’s advice and consent power.

“So it is far from clear,” Franks adds, “that it was the President, rather than the Senate, who was acting in a manner that violated the Constitutional separation of powers.”

Anticipating the obvious objection (“but Senator Obama participated in pro-forma sessions to block Bush appointments!”), Franks also notes:

Whatever the actual practice has been in terms of when presidents made recess appointments, or whether presidents in the past have accepted the practice of pro forma sessions, or even whether someone argued a different view about such appointments in the past, is entirely irrelevant. It might be instructive to know these things in order to make personal judgments about the character of the respective parties, but it has nothing whatsoever to do with the constitutional issues at hand.

I’m not sure if “nothing whatsoever” is quite right, but he’s got a point in that informal precedent and practice with respect to constitutional (or perhaps I should say “Constitution-related”) norms isn’t the same thing as a Supreme Court decision definitively interpreting the Constitution. Not by a long shot.

Anyway, read the whole thing. I don’t know if I’m totally convinced, but Franks does a better job defending Obama’s action than I’ve seen the president himself, or Jay Carney, or Nancy Pelosi, or anyone else on the Left do. Of course, whereas Franks is focusing with laser-like precision on the constitutional issues, those folks have to worry about “personal judgments about the character of the respective parties” — i.e., themselves — so they’re less likely to call attention to the details, and more likely to make broad-brush populist arguments that conceal the underlying point.

But if all that can be said about Obama here is that he’s being a hypocrite, and that he’s engaging in rhetorical sleight of hand to distract from that hypocrisy…well, that’s on par with noting that the Sun rose in the East this morning, and Grant is buried in Grant’s Tomb, and the SEC is a WAR!!! Obama’s a politician. Of course he’s a hypocrite, especially when it comes to matters of procedure. Virtually all politicians are. There is no moral high ground between the two sides when it comes to procedural matters. Everyone advances whatever argument suits their short-term interests at the moment. As someone who cares about procedure, I think that’s a damn shame, but it’s the reality.

Jan 05

President Obama yesterday exercised his “recess appointment” powers to appoint Richard Cordray, whose nomination had previously been blocked by the Senate GOP, as the head of the newly created Consumer Financial Protection Bureau.

There’s only one problem with this: Congress isn’t in recess.

Congressional Republicans have ensured that Congress technically remains “in session” throughout the winter break by holding brief pro forma sessions every few days, precisely to prevent Obama from making recess appointments. This action is arguably outside the spirit of the rules regarding congressional recesses and presidential recess appointments, but it’s within the letter of those rules — or at least, it was widely acknowledged until now to be within the letter of those rules, including by Senator Obama and other Senate Democrats who pulled this exact same stunt to prevent President Bush from making recess appointments late in his term. Unless I’m very much mistaken, Bush never reacted to this gambit by pretending Congress was in “recess” when it was actually still in session. Bush made recess appointments, yes, but only when Congress was actually in recess.

Now, as President Obama would say, let me be clear. Senate Republicans should not be blocking nominees willy-nilly, and especially should not be blocking the appointment of the head of a new agency simply because, in essence, they don’t think the agency should exist. They lost that legislative fight, the agency does exist, and if the GOP wants to change that, they need to pass a law eliminating the agency. In the mean time, the president should have the right to appoint people to fill the vacancies in the new agency, and so long as those people are basically qualified and competent and not drastically outside the political mainstream, they should be confirmed. Of course, both parties have been flagrantly violating that principle for years now, but that’s how it should be. Moreover, I’d say there’s something particularly subversive about undermining recently passed Acts of Congress by stonewalling the nominees necessary to allow the newly created agency to function. So in that sense, the Republicans are, in my view, clearly in the wrong on Cordray.

But two wrongs don’t make a right, especially when the second wrong is an possibly unconstitutional, “unprecedented power grab,” as John Boehener put it. And it’s made worse by Obama’s stated rationale, which is political rather than consitutional:

But when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them. (Applause.) I’ve got an obligation to act on behalf of the American people. And I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve. (Applause.) Not with so much at stake, not at this make-or-break moment for middle-class Americans. We’re not going to let that happen. (Applause.)

That’s not a legal or constitutional argument, it’s a populist rallying cry — and in this context, I’d call it demagoguery. It brings to mind, for me, this exchange from A Man For All Seasons:

Alice: Arrest him!
Thomas: Why, what has he done?
Margaret: He’s bad!
Thomas: There is no law against that.
Richard: There is! God’s law!
Thomas: Then God can arrest him.
Alice: While you talk, he’s gone!
Thomas: And go he should, if he was the Devil himself, until he broke the law!
Richard: So now you’d give the Devil benefit of law!
Thomas: Yes. What would you do? Cut a great road through the law to get after the Devil?
Richard: I’d cut down every law in England to do that!
Thomas: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast -– man’s laws, not God’s -– and if you cut them down — and you’re just the man to do it — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Obviously, I’m not saying that Republicans are the Devil, or that President Obama or Richard Cordray or the CFPB is God. Nor am I suggesting that this one action by Obama will single-handedly destroy American government, nor that the Obama Administration is a “lawless” regime, as some on the Right are hyperbolically claiming. As “constitutional crises” go, this is a relatively minor one. It’s not even totally clear to me that the Constitution, as opposed to decades of informal precedent regarding the interpretation of the Constitution, has been violated.

But even if it’s “only” decades of informal constitutional precedent that have been violated, that violation — for explicitly political reasons, supported by populist rhetoric — is still wrong, no matter how much the GOP is also wrong (in a more pedestrian, everyday political sense) to have blocked the Cordray nomination in the first place. And to defend a legal or constitutional wrong with populist political rhetoric is, arguably, even worse. That’s dangerous. That way lies true lawlessness, crisis and authoritarianism. It’s a long, long way down the road — but that’s the direction the road leads. And Obama shouldn’t be leading us in that direction, no matter how frustrating the GOP’s tactics are.

Moreover, even if you don’t buy the argument that this move is structurally wrong in a manner that infringes upon separation of powers and whatnot, it’s still politically unwise and short-sighted. Just as with the breakdown of the old way of handling judicial and other appointments, just as with the ever increasing abuse of the filibuster, just as with the questionable (but legal) tactic of holding brief “sessions” to prevent recess appointments from ever happening, one party breaking the rules (or the spirit thereof) will embolden the other party to do exactly the same thing when they’re in power. Do the Democrats really believe President Romney in 2013, or President Christie in 2017, won’t do exactly the same thing President Obama is doing now? The Democrats just gave away, forever, their power to block recess appointments by Republican presidents — all to get Richard Cordray in office. Was it worth it? Really? Another Man for All Seasons quote comes to mind:

It profits a man nothing to give his soul for the whole world … but for the Consumer Financial Protection Bureau?

In my view, as a generally Obama-supportive centrist, the president has two choices. He must either acknowledge his error and retract the recess appointment, or he must convincingly explain his legal and constitutional (not political) rationale for this move, and do so in a way that either harmonises his action with past precedent or explains why he now believes that precedent, which he previously supported, should be cast aside.

If he does neither, as will likely be the case, then he is and will remain in the wrong on this. It’s not the most grievous abuse of power in presidential history; indeed it probably doesn’t even make the “others receiving votes” category of the rankings thereof. But it’s wrong, and it’s dangerous, and fair-minded liberals should condemn it.

Jul 27

What about Social Security?

Wednesday, July 27, 2011 at 6:41 am Mountain Time

Some commentators and politicians have been suggesting, based on a variety of rationales, that Social Security payments will definitely, without question, be made on time next month, even if the debt ceiling isn’t raised — and that any suggestions to the contrary by the Obama Administration is a lie. Those folks appear to be incorrect.

May 27

Last night, with the Patriot Act’s surveillance and investigative measures due to expire at midnight, and Congress having just passed an extension while President Obama was on a European pub crawl (or, y’know, addressing Parliament, attending the G-8 summit, meeting with Medvedev, strategizing with world leaders about the revolutions in the Middle East… whatever, same difference), President Obama needed to urgently sign the Patriot Act extension bill into law, lest our national security be threatened. (Candidate Obama could not be reached for comment.) But the bill was on the wrong side of the ocean! You’d think maybe it could be faxed or e-mail to him, but apparently not. Instead…

White House aides used a machine called an autopen to “sign” President Obama’s name to the Patriot Act extension … Obama was in France at the G8 summit and directed his staff to apply his signature to the bill. It’s the first time he’s ever “signed” a bill in such a fashion, aides say.

Time was of the essence in signing the Patriot Act extension because the surveillance and investigative measures it renews were to expire at midnight Thursday. Administration officials said an expiration of those authorities for even hours would cause significant problems.

The Constitution, unsurprisingly, makes no mention of autopens or robo-signing. It says that a bill “shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it.” However, Obama aides point to a 2005 opinion from the Justice Department’s Office of Legal Counsel that concluded that, despite the Constitution’s requirements, a bill need not be physically presented to the president or actually signed by him to become law.

I haven’t read the OLC opinion, but I’m pretty sure this means that, technically, the “autopen” is now the President of the United States. The robot takeover has begun. #PANIC!

P.S. Doug Powers: “It’s possible that eventually TOTUS [TelePrompTer of the United States] and the autopen will become completely self-aware.” The Robots have us right where they want us…

May 04

First bin Laden, now the BCS?

Wednesday, May 4, 2011 at 2:00 pm Mountain Time

CNN Breaking News: “The Justice Department said in a letter to the NCAA that it has opened an antitrust inquiry into the Bowl Championship Series system.”

UPDATE: Andy Staples says the “CNN story makes it seem as if there is more news than letter provides”:

Here’s the full text of the DOJ BCS letter to the NCAA. Sounds like DOJ is still considering whether to attack. May 04 20:23:01 via TweetDeck


An earlier e-mail alert incorrectly reported the contents of a letter from the Justice Department to the NCAA about the Bowl Championship Series.

The Justice Department has not announced an antitrust inquiry into the BCS. The letter asked for information about the BCS system to help determine if an inquiry should be launched.

Also, the alert should have said the BCS system makes it more difficult for some athletic conferences to qualify for major bowl games, but it does not exclude them.

Sep 14

Hmm, fascinating…

Tuesday, September 14, 2010 at 1:10 pm Mountain Time

Guest post by

So I came across this over at Improbable Research. It would appear that there is a scientist who believes her name cannot be used without written consent.

Continue reading »

Aug 24

A few minutes ago, I got a @ message from somebody on Twitter saying, “Wondering if you’ve already seen this??!?!?” with a link to this blog post on Gawker, titled “Law Grads Ungrateful for Their Priceless Knowledge.” What makes the post noteworthy, from my perspective, is the stock photo they used to illustrate it:


The post has nothing to do with me — and, in fact, I’m neither unemployed nor ungrateful; on the contrary, I am very grateful for my legal education! Love thee, Notre Dame! — but I guess the author, Hamilton Nolan, or whatever member of the Gawker Media Empire was responsible for illustrating Mr. Nolan’s post, felt that a picture of me looking dorky on graduation day wearing my 2007 glasses (which, incidentally, I bought at the Fiesta Bowl Block Party on New Year’s Eve 2006-07 in Tempe) was a good stock photo to accompany the post.

I have no problem with the photo — I blogged it, after all! — but, in that context, under that headline, it’s not exactly the image of myself I’d choose to put out there. And technically, Gawker is violating my copyright by using the photo without permission. I do sometimes post photos on Flickr with Creative Commons attribution, but this wasn’t one of those — it was published directly on my server, and they downloaded it from this old blog post, which they then linked back to. That, at least, was good etiquette, and I seem to be getting a (very) small traffic surge as a result.*

Still, to be all legal and stuff, they should have asked before posting the picture. But, at least at present, I don’t feel inclined to make a ruckus about it (though I reserve the right to do so). Instead, I think I’ll follow Ryan Kessler’s advice, and proceed on the assumption that the Gawker Media Empire and I have an unwritten agreement whereby it’s okay to steal each other’s content at will, without asking. :) Filed away for future reference! Heh.

As an aside, I can’t help but wonder: was that photo pulled at random, in response to a Google search for “law grad 2007 dorky glasses” or some such? Or is there an ND Nation plant, or some other blog-troll from the bad old days — the sort of person who makes malicious edits to my Wikipedia page and the like — on Gawker’s staff, who specifically went looking for a photo of me to go under that rather unflattering headline? I have no idea, though absent evidence to the contrary, I assume it was random.

*UPDATE: Shoot! I’m not actually registering any traffic surge, because there’s no SiteMeter image on that old page! I must have forgotten to put traffic trackers there when I transitioned it over from TypePad to a static HTML page on my server. UPDATE 2: Fixed!

Jun 17

iPhone rumor/speculation whiplash alert

Thursday, June 17, 2010 at 9:30 am Mountain Time

Cult of Mac, 4:17 AM: “Reality Check: The iPhone’s Not Going to T-Mobile or Verizon Anytime Soon”

Cult of Mac, 6:42 AM: “Report: Apple to Ship CDMA iPhone in Fourth Quarter”

At this point, I’m rooting for the first story to be true, because if #2 is correct, I’m going to feel like a complete sucker for buying an AT&T-saddled iPhone 4 — and signing a two-year contract with a $400+ termination fee — when I could have had a Verizon version in like six months. (But I’m not willing to wait, because for all I know, #1 might be true, and I might be waiting years, not months. Ugh.)

Apropos of which: supposing that a Verizon iPhone is indeed coming, does anyone know if there’d be any legal impediment preventing Verizon from offering a “credit” to under-contract AT&T iPhone users, in an amount approximating their termination fee (or at least some substantial portion thereof), in order to encourage them to switch providers? Would this constitute legally actionable interference with contract? What if they offered the incentive to all iPhone users, regardless of whether they’re under contract? I’m a lawyer, of course, but this isn’t an issue I’ve researched or dealt with, and I wonder if any of my techie readers might be familiar with some relevant precedent.

Apr 22

The movie studio that made Downfall, the film that launched a thousand Hilter parody videos (previous posts here, here and here), is abusing copyright law by yanking the videos off YouTube. (Fair use, anyone?!?) Naturally, Hitler is not happy about this:


(Warning: profanity in the subtitles, as per usual. … Hat tip: Outside the Beltway.)

Bookmark and Share  |  3 Comments  |  Categories: Funny Stuff, The Law & The Courts
Apr 01

All Your Gene Are Belong To Us

Thursday, April 1, 2010 at 9:11 pm Mountain Time

Guest post by

You may die because of a gene patent that should never have been granted. The owner of that patent owns the gene that exists in your body. It’s private property. Well, according to the late Michael Crichton anyway. Good golly, that sounds frightening.

What should and should not be patentable has been the subject of debate – and legal disputes – for a long time. A particularly hot topic in recent years has been the propriety of gene patenting. For those interested in a thoughtful debate on this subject, alarmist op-eds like Crichton’s leave much to be desired. Rest assured that no one has or ever will own your genes. Gene patents cover copies of genes in an isolated form that does not occur naturally. The fear that Jude Law will knock down your door one day demanding royalties (or else!) because your kidney is “using” a patented gene is utter nonsense.

Continue reading »

Dec 18

Guest post by

So, reading the BBC, and the record industry position on illegal file sharing.

The long and short of it is, the record industry association is shocked that illegal file sharing isn’t decreasing. Though, given the economy and the expansion of broadband, I think they should probably just be happy it isn’t increasing exponentially. And then to further demonstrate that they have no idea what they are talking about, they say:

[…]However, the BPI estimate there are still more than a billion illegal downloads every year in the UK.

Mr Taylor said that figure demonstrated how the market could “explode” if the government tackled illegal filesharing.

I’m not sure what it’s going to take to get these morons to understand that legal downloads and illegal file sharing are actually different use cases. It’s like saying if we got rid of radio, LP sales would soar. It’s hogwash. Illegal file sharing is, well, a lot like radio. Nobody is going to buy every song they listen to on the radio—it is a different use case.

I’m not saying that anyone should illegally share songs, or any intellectual property. It is illegal and unethical. What I am saying is that it is amazing the degree to which the record industry completely misunderstands the nature of illegal file sharing. And until they manage to actually understand it, no stupid and poorly constructed laws are going to fix it. The problem they have is not a legal one, file sharing is already illegal, it’s a business model. iTunes and online legal music sites helped part of the problem, but it only took care of one use case that leads to illegal file sharing. They need to find a way to deal with the other, and again, that is an business issue not a legal issue.

Aug 04

Thought for the day II

Tuesday, August 4, 2009 at 12:42 pm Mountain Time

You’ve probably already heard about this story:

A recent college graduate is suing her alma mater for $72,000 — the full cost of her tuition and then some — because she cannot find a job.

Trina Thompson, 27, of the Bronx, graduated from New York’s Monroe College in April with a bachelor of business administration degree in information technology.

On July 24, she filed suit against the college in Bronx Supreme Court, alleging that Monroe’s “Office of Career Advancement did not help me with a full-time job placement. I am also suing them because of the stress I have been going through.” …

As Thompson sees it, any reasonable employer would pounce on an applicant with her academic credentials, which include a 2.7 grade-point average and a solid attendance record. But Monroe’s career-services department has put forth insufficient effort to help her secure employment, she claims.

“They’re supposed to say, ‘I got this student, her attendance is good, her GPA is all right — can you interview this person?’ They’re not doing that,” she said.

She suggested that Monroe’s Office of Career Advancement shows preferential treatment to students with excellent grades. “They favor more toward students that got a 4.0. They help them more out with the job placement,” she said. …

Asked whether she would advise other college graduates facing job woes to sue their alma maters, Thompson said yes.

“It doesn’t make any sense: They went to school for four years, and then they come out working at McDonald’s and Payless. That’s not what they planned.

Some may condemn Ms. Thompson for having unreasonable expectations during a deep recession; for asserting facially frivolous legal claims; for making obviously absurd statements, like how it’s shocking that students with A averages are “favored” over those with B- averages; and for generally failing to understand that, regardless of what she may have “planned,” the best laid schemes of mice and men gang aft agley — i.e., life isn’t fair, welcome to the real world.

But I say, forget all that. This woman is an American hero. Why? Because, especially now, during a time of economic gloom, we need simple morality tales populated by straightforward, obvious villains. And that’s exactly what Trina Thompson is. She’s a cardboard character whom we can simply plug into the age-old “damn kids today and their sense of entitlement” storyline, without any alterations or complications. And that’s not all! Oh no, it gets even better, because she merges that old chestnut with the equally appealing “damn lawyers today and their litigious bulls**t” storyline. That’s two instances of righteous outrage for the price of one! Not since the A.I.G. bonuses has there been a story this delightfully outrageous! BRING THE HATE!!

In an odd way, Trina Thompson serves a similar purpose in our nation’s psyche as Chesley Sullenberger III. At all times, but especially at times like these, we crave not just straightforward heroes, like Captain Sully, but also straightforward villains — people we can unabashedly look down upon with disdain. The world is complicated, but these narratives aren’t, and we like that. As simple and straightforward as Sully’s heroism was, Ms. Thompson’s anti-heroism is equally so. There’s no complexity to it, no nuance, just a glaringly obvious example of somebody being obnoxious and contemptible.

Somebody give this woman a medal. She has, in our nation’s hour of great need, selflessly offered herself up as the sacrificial lamb whom America can castigate without guilt or caveat. And so I salute you, Trina Thompson. By being a complete idiot and jackass — but, more than that, by being a complete idiot and jackass in a completely formulaic, predictable way — you’ve made us all feel better about ourselves, and made this crazy world seem a little more simple and understandable. Well done, madam. Well done.

Now shut up and get a job. :P

Jul 29

More on Gates-gate

Wednesday, July 29, 2009 at 10:47 pm Mountain Time

I don’t mean to obsess over this stupid Cambridge case, which is really not all that important in the grand scheme of things. There are far worse examples of police misconduct; this one is a prominent story mainly because of a question asked at a presidential press conference, and because we’re in the midst of the annual midsummer news lull.

However, it is serving as a “teachable moment,” or at least a clarifying one, in terms of the reactions it has generated. And that’s the reason I’m borderline obsessed with it: not because of how I feel about Gates or Crowley or this case specifically, but because the ignorant, authoritarian, anti-constitutional attitudes being commonly expressed, here and elsewhere, really piss me off.

And so, for the edification of those who continue to misunderstand (or disregard) the nature of our constitutional republic, because they think citizens’ free-speech rights pose an inconvenience to law enforcement, I offer this analysis by Harvey A. Silverglate, co-founder of FIRE (an organization beloved by conservatives) and author of The Shadow University: The Betrayal of Liberty on America’s Campuses. Whereas many conservatives apparently feel more threatened by infringements on their liberties imposed by university bureaucrats with pens than those imposed by police officers with guns, Silverglate rightly feels threatened by both. And so, he writes:

[E]veryone should take a step back and ask why so many citizens–including Professor Gates, who, it is conceded, did not assault Officer Crowley–end up being arrested for uttering mere words. Because, whether the words were as perfunctory and non-objectionable as Gates’ claim that he asked for Crowley’s name and badge number, or as heated as Crowley’s claim that Gates let loose a stream of loud and offensive insults, they were, well, just words. Put more simply, why do we as a society so often ignore traditional notions of First Amendment freedom to speak one’s own notion of truth to power when one party to the confrontation is wearing a uniform, a badge and a gun?

Some of the media commentary is quite remarkable, replete with claims that Crowley had a right to arrest Gates because the professor was loud and offensive. Yet what has happened to the notion that under the First Amendment, loudness is OK as long as one is not waking up neighbors in the middle of the night (known as “disturbing the peace”), and offensiveness is fully protected as long as it stops short of what the Supreme Court has dubbed “fighting words”?

This gets us to the heart of the matter. Under well-established First Amendment jurisprudence, what Gates said to Crowley–even assuming the worst–is fully constitutionally protected. After all, even “offensive” speech is covered by the First Amendment’s very broad umbrella. …

Today, the law recognizes only four exceptions to the First Amendment’s protection for free speech: (1) speech posing the “clear and present danger” of imminent violence or lawless action posited by [Justice Oliver Wendell] Holmes, (2) disclosures threatening “national security,” (3) “obscenity” and (4) so-called “fighting words” that would provoke a reasonable person to an imminent, violent response.

Silverglate then proceeds to explain, in detail, why the “fighting words” doctrine clearly does not apply to this case. Read the whole thing. He concludes:

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if “free” means anything meaningful, it means being left alone–especially in one’s own home–when one is not breaking the law.

Sgt. Crowley had every right to check on what was reported as a possible break and entry. But as soon as he realized that the occupant was entitled to be in the house, he should have left. He admits in his own police report that he was indeed able to ascertain Professor Gates’ residency and hence right to be in the house.

As for Professor Gates’ inquiries into the officer’s identity and badge number (as Gates describes the confrontation) or his tirade against the officer (as Crowley reports), the citizen was merely–even if neither kindly nor wisely–exercising his constitutional right when faced with official power. Even if Professor Gates were wearing a “F*** You, Cambridge Police” jacket, the officer would have been obligated to leave the house without its occupant in handcuffs.

Crucially, none of this is disputable. That Professor Gates’s arrest was illegal and unconstitutional is a simple and undeniable fact, arising out of long-settled precedents and principles of constitutional law. If a Massachusetts statute counsels a different result — and I don’t believe it does — then that statute would itself be plainly unconstitutional, at least as applied to this case. Simply put, there is no possible legal justification for Gates’s arrest. So then, what are we arguing about, exactly? Just because the conservative authoritarians among us might think that the Constitution should give Officer Crowley the right to arrest Professor Gates, doesn’t mean it actually does. When Gahrie and Andrew, et al, are appointed to the United States Supreme Court, maybe they can change the law of the land. Until then, however, what Officer Crowley did was illegal, and what Professor Gates did, wasn’t. Period. The End.

Jul 28

I was delighted yesterday to see Glenn Reynolds linking to libertarian writer Radley Balko’s Reason article about the Cambridge kerfuffle (a.k.a. Gates-gate).

Balko shifts the focus away from race, which is really a sideshow in this particular case, to where it rightfully belongs: police abuse of power. And, while acknowledging that Gates seems to have acted boorishly, Balko criticizes Crowley for arresting him when, by all accounts, the only “crime” Gates committed is the non-crime of “contempt of cop.”

Balko also lambastes many conservatives for the “instinctively authoritarian tack” they have taken in response to this and other confrontations between cops and citizens. This is something that desperately needed to be said, and Balko says it well.


[I]t now seems clear that Gates mistakenly presumed that Crowley had racially profiled him, and hurled a barrage of invective at Crowley in response. … [But] [t]he conversation we ought to be having in response to the July 16 incident and its heated aftermath isn’t about race, it’s about police arrest powers, and the right to criticize armed agents of the government.

By any account of what happened—Gates’, Crowleys’, or some version in between—Gates should never have been arrested. “Contempt of cop,” as it’s sometimes called, isn’t a crime. Or at least it shouldn’t be. It may be impolite, but mouthing off to police is protected speech, all the more so if your anger and insults are related to a perceived violation of your rights. The “disorderly conduct” charge for which Gates was arrested was intended to prevent riots, not to prevent cops from enduring insults. Crowley is owed an apology for being portrayed as a racist, but he ought to be disciplined for making a wrongful arrest.

He won’t be, of course. And that’s ultimately the scandal that will endure long after the political furor dies down. The power to forcibly detain a citizen is an extraordinary one. It’s taken far too lightly, and is too often abused. And that abuse certainly occurs against black people, but not only against black people. American cops seem to have increasingly little tolerance for people who talk back, even merely to inquire about their rights. …

If there’s a teachable moment to extract from Gates’ arrest, it’s that arrest powers should be limited to actual crimes. Instead, the emerging lesson seems to be that you should capitulate to police, all the time, right or wrong. That’s unfortunate, because there are plenty of instances where you shouldn’t.

Much more after the jump, including some well-deserved link love for Carlos Miller’s blog.

Continue reading »

Jul 17

Sonia Sotomayor and the moral high ground

Friday, July 17, 2009 at 2:15 pm Mountain Time

Conservative blogger William A. Jacobson of Legal Insurrection says Yes to Sotomayor. (Hat tip: InstaPundit.)

I haven’t watched the hearings — I’ve been, er, a little busy — but based on what I know, I’m inclined to agree: conservatives should vote “Yes.” Not because of ethnic politics, nor for reasons of short-term political preservation, but as a matter of principle, and to maintain the “moral high ground” on judicial nominations.

When 22 out of 45 Democrats opposed John Roberts, and 41 out of 45 opposed Samuel Alito, the Republicans could justifiably point out that Clinton appointees Ruth Bader Ginsburg and Stephen Breyer — known liberals every bit as much as Roberts and Alito were known conservatives — were confirmed 96-3 and 87-9, respectively. That means, obviously, that the vast majority Republicans voted to confirm them.

It isn’t that Republicans liked Ginsburg and Breyer. Certainly, a Republican president wouldn’t have appointed them. But the GOP votes for those nominees were really endorsements of the notion that elections have consequences, and the president generally has the right to appoint justices of his liking. The Senate’s “advice and consent” role, according to this view, doesn’t extend to ideology, unless perhaps the nominee is so wingnutty as to be completely outside the mainstream.

Now, of course, some liberals argue, in essence, that all conservative jurists are wingnutty and outside the mainstream, but this is an illogical tautology. Just because you disagree with their ideology, just because you think it’s backwards and reactionary and bad for the country and so forth, that doesn’t make the huge number of people who see things differently into fringe whack-jobs. By any objective standard, the opposition to Roberts and Alito was clearly based on ideology, and thus violated the principle — if any such principle exists — that otherwise qualified judicial nominees should not be rejected by the Senate on purely ideological grounds.

Likewise, Sotomayor is quite clearly qualified, in a neutral, formal sense. The objections to her nomination are firmly rooted in ideology. So, if conservatives mean what they have long said about the nomination process — and if they intend to trot out the “elections have consequences” argument when, say, President Romney appoints Justice Stevens’s replacement, and needs to get his conservative nominee through a still-Democratic Senate — they should follow Jacobson’s advice, and vote “Yes” on Sotomayor.

Will such a move make any difference politically? Will it help the Republicans win that hypothetical future confirmation battle? Is the “moral high ground” really worth anything? Perhaps not. But it sure would be nice to see somebody in Washington do something on the basis of principle.

And anyway, with so little to gain by opposing Sotomayor — she’s obviously going to be confirmed, and besides, she’s a liberal replacing a liberal — and with the Republicans still playing defense in the Senate (making my Romney scenario not at all far-fetched), I think it makes sense, even if one is thinking about strategy rather than principle, for the GOP to make the long-term play here, and keep the “elections have consequences” argument in their arsenal for future battles that will mean more.

CLARIFICATION: I’m not expressing an opinion on whether the Senate’s “advice and consent” role should or should not extend to ideology. I’m merely saying that conservatives and Republicans have, for the most part, long professed to believe this, and have been relatively consistent in promoting this view regardless of the political orientation of the particular appointment. Hence, to continue to espouse this position consistently is to maintain the “moral high ground.” Whether the position they’re consistently espousing is correct is a separate question.