The New Republic

Pundits live for these epic, uh, battles.

Both sides [and all the both sides inbetween] line up their words like toy soldiers on the imagainary battlefields of youth. All strive to be the one who, 6 months from now, is hearalded as The Most Prescient Of Then All.

Will The Liberals Stop The Damage And Begin To Turn Things Around?

Will The Conservatives Retrench And Devise A Stratagem To Stem The Next Liberal Wave?

And if the consequences of a winning or losing political agenda were not so vitally important to all the non-pundits...those who will live in the shadows of these important Us v. Them decisions...it would all be rather ridiculous.

Indeed, these mighty intellectual [partisan] clashes remind me of the Spy vs. Spy spoofs in Mad Masgazine. Only here the caricatures have transfigured into the Word vs. Word melodramas of the reality challenged Intellectuals.

george walton    

- iambiguous

May 1, 2009 at 10:31pm

Exactly.  Except that I will take a jab at what the court will see: environment, education and economics.  

- dylanposer

May 2, 2009 at 12:13am

Oh, hello Josh. Nice to see you back.

Liberals may want a public face, but I think more than anything what they want is someone with the presence on the court to turn 4 votes into 5 -- someone who can get Stevens and Kennedy on the same page until one of the conservative justices leaves the court.

- rozenson

May 2, 2009 at 3:21am

No legal movement? Huh?

Liberals, briefly, want the people to be protected from the worst impulses of the powerful.  

The first thing Obama did was sign the Lilly Leadbetter Act, which was a direct rebuke to the Supreme Court.   Its all right there Josh.  

When Obama used the word "empathetic" yesterday in his job desciption, I smiled. Its like shaking Hugo Chavez's hand - the Obama version of flipping the bird to the right.  Conservatives don't want empathetic judges of any sort - it was a fearless word to use, quite clear in its intent.

Pay closer attention everyone!  

- Wandreycer1

May 2, 2009 at 9:36am

I don't claim to know what liberals want -- there are millions of them, who probably do not think monolithically, right?  But what they should want is not someone who will try to move the Court's jurisprudence in a radically different direction, but someone who will resist any movement away from the Court's civil-liberties precedents.  They decidedly should not want a "liberal Scalia," someone who will satisfy them with clever, impudent rhetoric but who otherwise will be ineffective, or worse, who will undermine respect for the Court.  There is a reason that Scalia was passed over for Chief Justice in favor of a much younger rookie.  He is divisive and is unabashed in expressing ridicule and disrespect for the other Justices.  That in turn undermines the Court itself as an institution.  

- dhurtado

May 2, 2009 at 10:23am

Roz,

Well, now that conservative justices can't use Hydroxycut (www.latimes.com/.../la-na-diet-pill-recall2-2009may02,0,5931665.story), they'll have to go back to good old fashioned treadmills and duck hunting to preserve their aging bodies for the next few decades.  Expect to see a SCOTUS or two in your local D.C.-area gyms in the coming months. Those 4 or 5 aren't going come easy.  

- dylanposer

May 2, 2009 at 10:36am

Third way  Obama is appointing no lioness, firebrand, whatever, I'd wager. My guess is you all are gonna' get a younger, more dark skinned version--probably Hispanic--of a left centre incling Ruth Bader Ginsburg. My understanding is that Thurgood Marshal, admirable as he was,  was not a particuliarly good judge. And that's the first point: the first thing has to be legal competence of the highest order, then will come the appropriate politics and then the appropriate identity politics. If that candidate has some zotz too, well okay then but too much of that roaring lioness stuff will be countervailing. And Kennedy is so idosyncratic and so incredibly self assured, I can't see anyone having too much sway on him.  I also can't see Obama appointing anyone of the political stripe "progressive' as opposed to liberal. Obama is too centrist and pragmatic for that as I see him.

Here's something great, easily worth the three bucks: www.nybooks.com/.../article-preview

Check it out at least, I'd urge anybody.

- basman

May 2, 2009 at 11:06am

...Liberals, *briefly*, want the people to be protected from the worst impulses of the powerful...

I missed that *brief* class.

- basman

May 2, 2009 at 11:13am

And I associate myself with the post of dhurtado above.

- basman

May 2, 2009 at 11:14am

Agreed, basman.  Kennedy is a total goth.  If you try and win him over, he'd think you were trying to trap him and he'd flee the scene.  

- dylanposer

May 2, 2009 at 11:25am

One more point: it's essential that your next SCOTUS denizen fight for the establishment of the dry cleaning privilege. We don't want our launderers spilling the beans on our most human, uhmm...

...expressions.

- basman

May 2, 2009 at 2:25pm

p.s.

...Liberals, *briefly*, want the people to be protected from the worst impulses of the powerful...

especially that old liberal bleeding heart Hayek.

- basman

May 2, 2009 at 2:26pm

dhurtado read Jeffrey Rosen's essay on Obama wimping out and get back to me. It's a lot of it about the futility of proscecuting/persecuting the lawyers.

- basman

May 2, 2009 at 2:28pm

Basman, where is Rosen's essay?

- dhurtado

May 2, 2009 at 3:20pm

dhrtado - totally agree about Scalia. I guess he's something that grows on you?  

I don't get it. To me, he debases the court with his hunting trips with a sitting VP, his speeches to partisan groups and his obtuse, intemperment attacks on the beliefs and values of so many Americans.  He's unbearably entitled and vulgar.

Eff him and his royalist cabal. Witty legal opinions interest me not in the least.    

- Wandreycer1

May 2, 2009 at 3:59pm

www.tnr.com/.../story.html

- basman

May 2, 2009 at 4:23pm

wandreycer1 how does this fit in with your theory of liberalism

1. atlanticyardsreport.blogspot.com/.../little-pink-house-absorbing-story.html and this too

2. www.commentarymagazine.com/.../little-pink-house-by-jeff-benedict-15142

Buy #2 and send me the bill.

3. Note the split in the court and the great dissent by O'Connor: www.iconworldwide.com/.../04-108

- basman

May 2, 2009 at 5:36pm

bas - I wish I had time to read all three of those articles, will buy the Commentary.  

On balance, I technically sided with New London in this case, but there was no good outcome to this thing.  Call me dense, but I still don't understand why they couldn't build the stupid thing somewhere else in town. Why was this so impossible again?  Eight houses? Modify the plan.

I did love O'Connor's dissent, I miss her - I know its been said a million times, but she *is* very Western. I suppose I was venting when I dissed the import of a good dissent, Scalia has just abused the privledge.  I was raised by middle class folks of German descent, "show offs" were to be disdained.  I still like that.

So yes, this was a response by all involved that shocked me at the time - since when did the right wing care about intrusive government - especially versus in a capitalism verus the working man sort of way?  

I hadn't see much of that party in my lifetime.  I heard about them, they sounded quite interesting, but I never lived with that kind of Republican leadership - by the time I became politically aware, partisanship and nostalgia ruled all thought with my friends across the aisle.  It mostly still does.  They have been Orwellian for twenty years.  

All of a sudden THESE three break out in a Pete Seegar song?  Weirdness.

- Wandreycer1

May 2, 2009 at 10:38pm

The review of the book about the case in Commentary is superb. It ends thusly:

"...Nearly four years after the Supreme Court allowed New London to confiscate homes and shops in the name of economic development, nothing has been built where the old neighbourhood used to stand..."

What do you mean you sided with the city technically? It was going to be for private use for Pfizer and your takings clause says:  "..nor shall property be taken for *public* use without just compensation..."

The 5 in the majority were Breyer, Souter, Ginsburg, Stevens and Kennedy.

Kinda' makes a hash of too easily pouring all good ino the supposedly liberal cup.

No?

- basman

May 2, 2009 at 11:42pm

Allow me to butt in here.  The Kelo decision does seem anomalous in that the so-called "liberal" bloc sided with business/government and the "conservative" bloc sided with the little guy (gal).  That the way the opinions broke down is perceived as a role reversal says a lot doesn't it?  

But it may not be as anomalous as it first appears.  Conservatives on the Court have generally been more solicitous of property rights then they have individual liberty rights, the speech and religion clauses of the First Amendment, the privacy rights Fourth Amendment and equal protection.  The Kelo case was about property rights.  

That said, I still find it odd that Stevens, Souter, Ginsburg and Breyer upheld the exercise of eminent domain in the Kelo case, given that I would expect them to empathize with the individual property owners, and that, as O'Connor ably showed, there was a principled way to distinguish the Kelo case from the Berman and Midkiff cases.  

I think O'Connor's dissent is spot-on.  But the constitutional analysis was rendered less straightforward than it might have been by the Berman and Midkiff cases.  Those cases interpreted "public use" to include private use as long as the private use would serve some public "purpose."  Those cases thus permitted the majority decision in Kelo even if they did not compel it.

More later on Sunstein and Rosen.

- dhurtado

May 3, 2009 at 1:57am

"someone to unabashedly play culture warrior in the way that Scalia has sometimes done."

heaven help us. a pox on all kulturkriegeren, whatever their origin. more culture-war p*ssfests are the last thing this country needs now.

- teplukhin2you

May 3, 2009 at 4:48am

Maybe I'm a secret collectivist somewhere deep inside, huh Bas?  Like I said, this case was so confounding to me.  I feel about it about the same way I have felt about Iraq: respecting both sides of the argument equally, agreeing with almost everyone and in the end of course, confused.  But I'm proud of my confusion - like this case, anyone who is adamantly *sure,*  I generally mistrust.  You had to hear about both sides.

"Development" was used here as a perjorative, and certainly with the homeowners, they should think nothing less.

But I thought the city made a decent case that it was for the common good (see, that Marxist impulse again!).  Not a perfect or even fair case, but that's what I came away with, I'm glad I wasn't on the jury here.  But then if it was my house, I'd take up arms.  Sigh.  See what I mean?

To me - O'Connor was always more intellectually trustworthy than Scalia or God knows Thomas. The property rights over personal rights thing reeked of ideology to me mostly because of how knee jerk it felt. But I'm sorry, especially with weirdo Thomas, it manifestly is.  

I was pleased later with the Guantanomo ruling and a few others by Scalia.  Maybe he obtained some shame somewhere?  

I do appreciate that this is tricky business, one man's ideology is another man's Solemn Interpretation of The Law.  I really appreciate you stumping and confounding me on my own assumptions, very stimulating!

- Wandreycer1

May 3, 2009 at 9:02am

Wandrey,

Let's assume that the City made a strong case that the development was for the "common good" in that it would improve the economy of the area, increase the tax base, etc.  That would not answer the question of whether it was constitutionally permissible to take property from one private party and give it to another private party for private use.  The Kelo majority said yes, as long as the private use gives rise to some public benefit, such as economic improvement.  But if that is the standard, then it virtually repeals the Takings Clause.  And that is a bad thing because, even if one thinks it led to a good result in the Kelo case, it gives the state far too much power, a power that is wide open to abuse and corruption.

But it should be noted that the Kelo majority did not concoct the public "purpose" standard (as opposed to the public "use" standard).  The public purpose standard was articulated by the Court decades ago in the Berman and Midkiff decsions.  Justice O'Conner wanted to peel back the Berman and Midkiff decisions by limiting public "purpose" to fixing disfunction, such as urban blight, rather than defining it broadly as including all economic improvement.  I think she had it right.

- dhurtado

May 3, 2009 at 11:16am

Good comments dhurtado on Kelo. I agree with them.

If public use can be tortured to include the benefit of revenues flowing from an enhanced tax base, then public means means very little at all if anything. Considering the majority, the case spells out a problem with a liberalism that can get ossified by  too much statist  progressivism.

See: www.tnr.com/.../story.html

- basman

May 3, 2009 at 12:04pm

I get it now. Thanks dhurtado for clarifying what mattered, which is that the Constitution frowned on this ruling.  I can see why.  

You can't take people's property away, even if it will bring jobs. That's just scary.

- Wandreycer1

May 3, 2009 at 1:23pm

Basman, I'm not sure I see the Kelo decision as an example of liberalism being ossified by too much statist progressivism.  The Kelo majority's decision was a logical extension (if not an ineluctable extension) of the decisions in Berman (1954) and Midkiff (1984), both of which were decided by a unanimous Court.  The Midkiff Court included Rehnquist and O'Conner, and, indeed, O'Conner wrote the opinion in Midkiff.  The Midkiff case involved redistributing land ownership from private party to private party becaue 47% of the land in a particular Hawaiian island was owned by only 72 private landowners, which the government saw as grossly distorting the real estate market.  One could certainly argue that the redistribution of land ownership was "statist," but few would argue that Rehnquist and O'Conner were liberal adherents of statist progressivism.  O'Conner's Kelo dissent can be seen as a desire to rein in the monster she had helped create.  She makes a very credible attempt at doing that, but what makes her dissent compelling is that it is powerful argument for overturning the Berman and Midkiff decisions altogether.

- dhurtado

May 3, 2009 at 1:54pm

Re:  Dworkin's review of Cass Sunstein's book:  I have not read Sunstein's latest book but have read some of his other writings.  I would be comfortable with Sunstein as a Supreme Court Justice because, even though I may not agree with all of his decisions, I think he would approach constitutional interpretation with intellectual vigor and intellectual honesty.  I am afraid his latest book (among others), however, would give the Senate a lot of grist for questioning him about his philosophy of constitutional interpretation.  For one thing, the book apparently does not settle on a preferred judicial philosophy, which is perfectly fine for an academic writing, but the Senate would want to know how he actually intends to approach constitutional intrepretation.

The Senate would likely have concerns about Sunstein's suggestion that judges should write opinions "stating what they take to be the most attractive conceptions of equality, liberty, and democracy that fit the Constitution's text and history and then apply those conceptions to the cases before them[,]" citing former justice William Brennan and Thurgood Marshall as apostles of that approach.  Sunstein apparently calls that the "perfectionist" approach.  In my view, that is exactly what all judges do with varying degrees of self-consciousness.  The difference between individual judges is how far and in what direction they are willing to bend in order to conclude that their conceptions of justice and democracy fit the constitutional text and history.  It really cannot be any different than that.  The notion that the constitutional text (and/or its history) can objectively be interpreted in only one way is not realistic.  The statement that Orrin Hatch and others have made that judges "should follow the law and not make the law" is meaningless.  When courts interpret law they also make law, of which statutory or constitutional law is the basis.  If that were not so, we would not need judges.  We could all just read legal texts and we would all know how they apply to a given set of facts.

So when people talk about judges not making law, I think they mean that judges should construe the Bill of Rights narrowly rather than broadly.  But that itself is a moral or political choice about the proper balance between individual liberty and governmental power.  

That is not to say judges should be unconstrained in striving to fit their moral conceptions to the constitutional text and history.  I agree with Sunstein that Roe v. Wade was insufficiently tethered to the constitutional text and history, but that it would be unwise to overrule it now.  On the other hand, it is also possible to construe constitutional rights so narrowly as to write them out of the Constitution, and that is no less "legislating from the bench" than is construing constitutional rights too broadly.  

Sunstein also apparently talks about a "minimalist" intepretive methodology, apparently as an alternative to the "perfectionist" approach.  But I would posit that a minimalist approach refers to a means of adjudication once the applicable constitutional principle is identified.  Minimalism requires that where a constitutional interpretation requires the invalidation of a statute or an entrenched legal tradition, its implementation should be incremental, or perhaps even delayed until the polity is ready to accept it.  An example of this approach is Sunstein's belief that the Court was right to delay an invalidation of state prohibitions on interracial marriage until the polity was ready for it.  I agree with Dworkin that a minimalist approach, so understood, is problematic and may result in the Court abdicating its responsibility to decide the rights of the parties before it.  I recognize that there may be situations in which a bold Supreme Court decision may cause extensive social unrest, and the Court cannot be oblivious to that.  But I think the Court should be very reluctant to kick constitutional rights down the road.

All of which is to say that I think we, through the Senate, have a right to know more about a Supreme Court nominee than that they are legally competent and have a good judicial temperament, etc.  We are entitled to inquire about his or her conceptions of liberty, equality and democracy, about how those conceptions fit with the consitutional text and history, and about the extent to which the nominee is willing to deviate from tradition in order vindicate what her or she believes is a contitutionally protected right.  Specifically, a nominee should be able to tell us whether he or she agrees with how previous controversial cases were decided, and also what his or her attitude is about stare decisis.  Any nominee who refuses to answer those kinds of questions should not be approved.

- dhurtado

May 4, 2009 at 12:20am

Yeah, Sunstein could get a sex-change operation, convert to Roman Catholicism, and adopt a Spanish accent.

I certainly hope the next appointment isn't going to be a lefty, Wandrey, because no one has ever done more harm to "the little guy" than The State, which has raised serfdom to a level undreamed of by Dark Ages oligarchs. Private property rights have been recognized as a fundamental precursor to invididual rights for quite some time now...

- Robert Powell

May 4, 2009 at 5:07am

RP - I love ya man, but in this country that is utter hooey. Thank God for our lefty Supreme Court judges, all hail (mostly).  

You're laying it on a bit think there - serfdom and Dark Age oligarchs?  On a Monday morning?  Let me get my coffee first.  You're bringing up nasty images of Dick Cheney and I need to be awake for it.

- Wandreycer1

May 4, 2009 at 6:16am

So-called "liberal" Courts have rebuffed the State's efforts to tell people where they could go to school, where they could go to the bathroom and where they could ride on public transportation based on race; have rebuffed the State's efforts to reach into the bedroom and govern people's sexual practices and reproductive decisions; have rebuffed the State's efforts to suppress speech and the exercise of religion; and have rebuffed the State's efforts to erode due process protections of the individual against the State.  Property rights would be worthless without the Fourth Amendment's protection against unreasonable incursions onto one's property, the Fifth Amendment's requirement of due process before one can be deprived of property, and the Sixth Amendment's protections of criminal defendants.  The so-called liberal Court's have sought to sustain and reinforce those protections.  The "conservatives" on the Court have been seeking to erode them (e.g., by de-fanging the exclusionary rule and lowering the bar for what constitutes a reasonable search or seizure).  One can reasonably take the position that the 4th, 5th and 6th Amendments SHOULD be construed narrowly in order to facilitate law enforcement, but it cannot be denied that pulling back on the protections embodied in those amendments results in an aggrandizement of State power over the individual.  So who are the statists?  Perhaps we all are, and it is really a matter of where we want State power to be employed.

- dhurtado

May 4, 2009 at 9:10am

Dhurtado, for a brief moment or two, I’m not familiar with the intricacies of SCOTUS or even much American jurisprudence on expropriation before Kelo. But where you have a liberal pocket of decision making—excluding Kennedy I suppose--it is instructive to contrast O’Connor’s dissent with the liberal four. It marks her—also a swing voter—as less ideological than her liberal colleagues. Her judicial independence in the face of  such a travesty—factually and legally—contrasts favourably with her colleagues’ more lock step opinion, which comported with their ideological desire to do good via a kind of quasi state action at the expense of to be respected property rights. You can correct me,, but my impression is that in Kelo the majority went further in laying low the takings clause. From the little I know about Berman, for example, it is distinguishable on its facts, and therefore in principle, because it sought to remedy a public blight where 2/3ds of the houses were beyond repair. The government was seeking to clean up a dirty, dangerous slum, according to one commentator. Fort Turnbull was working class to be sure, but no slum. The explaining away of Kelo's perverse do goodism by recourse to precedent won’t do. This was an opportunity for SCOTUS to address a rabid, state implicated do goodism which sacrificed hard working class individuals’ property rights to an attenuated (more than calcified really, I'll give you that)  notion of the public good, and the liberals to their discredit punked out. Kennedy did whatever Kennedy does.

- basman

May 4, 2009 at 11:06am

Great thread, wish I had more time.  I was appalled by Kelo, because it did seem to me to essentially repeal the Takings Clause, and I was rather confused by the liberals on the Court going for that.  But it does aggrandize the power of the state, and with our imperial judiciary, all things are possible.  

Just wait til we get Justice Empathy.  Should be a hoot.

- butchie b

May 4, 2009 at 2:01pm

But Basman, the four "liberals" on the Kelo Court having sided with the City is perceived as an anomaly.  The way the Court broke down on the matter was the reverse of what was expected.  So, though I agree that the "liberals" on the Court and Kennedy "punked" out, I don't see how one can conclude that the decision comports with some lock-step liberal ideology.  Though the "do-goodism" in Berman and Midkiff was more compelling than the "do-goodism" in Kelo, it nevertheless was "do-goodism" trumping property rights, and it ws endorsed unanimously both times, by centrist, liberal and conservative justices.  Kelo was a bad decision, in my view, but it was not necessarily an example of liberal jurisprudence.

- dhurtado

May 4, 2009 at 3:23pm

Empathy or sympathy is a good quality for anyone to have. I don't think it should be a high criterion for picking a judge. My younger daughter just now finishing law school was telling me about an argument of Nussbaum's about what a highly desireable quality it is in a judge, how transofrmative having it would make judging. While stipulating that we don't want bench sitting sociopaths, my daughter couldn't make that case to me and I found Nussbaum gooey on such issues and on compassionate jiustice. See bostonreview.net/.../nussbaum.php

- basman

May 4, 2009 at 3:30pm

Liberalism, what it is, is, as I tried to suggest to Jill, a complex subject. In *one* of its incarnations, progressivism, it privleges state action over indvidual rights, the good of the many over the rights of individuals. Centrist liberalism, about where I sit politically, seeks a better balance between the two and seeks to be flexible in trying to make that balance. The sacrfice of individual rights in a bad case for an anemic conception of the public good as in Kelo instances that attenutation which is synonomous *in that case* with ideological rigor(mortis). It doesn't help to say that Kelo is an anomaly. It is what it is and signifies what it signifies--at least to me. It is worse than its precedents and exemplifies bad ideology trumping good judging. That speaks well for O'Connor and swinging judges generally, Kennedy to the contray notwithstanding.

- basman

May 4, 2009 at 4:22pm

The problem with "liberal" courts is the same problem with liberal anythings--the terminology simply won't support meaningful discussion. To the extent that courts have been liberal in the classical sense and opposed encroachment on individual liberties by the state, I'm a liberal. But genuine Enlightenment liberalism of this sort also favored free trade, low taxes, limited regulation, and a vigorous defense of private property as a foundation for the practical survival of other rights.

It's true that we've been lucky so far--episodes of genocide, suspension of habeas corpus, internment of citizens, vast expansion of police and taxation powers, etc. haven't gone as far as in other places overtaken by a one-party system. But I don't think we can depend on some kind of automatic exemption from such in the future.

- Robert Powell

May 4, 2009 at 5:11pm

Basman, you've lost me.  If your thesis is that the Kelo decision is an example of the ossified thinking of the liberal justices, then how can it not matter that it is an anomaly among the decisions of those justices?  

More importantly, what is your basis for concluding that the Kelo decision was driven by ideology at all, rather than simply on the majority's interpretation (albeit in our view misaken) of the relevant precedent?  Have you read the majority opinion?  It relies not only on Berman and Midkiff, but on a hundred years of Court decisions both before and after.  Indeed, a review of those cases makes O'Connor's attempt to distinguish Kelo from the precedents considerably less compelling.  (As I said, O'Connor's dissent makes a good argument that the "public purpose" formulation was wrong, but we've had that now for almost a century.)  There is nothing in the majority opinion that suggests it is based on some progressivist ideology.  In fact, the only "ideology" it invokes is deference to legislative judgments and federalism!

- dhurtado

May 4, 2009 at 7:34pm

RP, I agree with you that it is not particularly helpful to talk in terms of "liberal" justices and "conservative" justices.  It is nevertheless my perception that the justices that have been LABELED as "liberal"  -- e.g., Warren, Blackmun, Brennan, Marshall, and Stevens -- have embraced liberalism in the classical sense as you have descibed it.  But I don't think the Court has had much to say one way or the other about free trade, taxes or economic regulation, other than in expanding the meaning of "public use," and in expanding the Commerce Clause.  But both of those expansions occurred long ago and have never been thought of as leftist progressivism.

- dhurtado

May 4, 2009 at 9:18pm

My thesis is that Kelo is an example of ideology trumping good judgment in a particular case. And in this case it is the triumph of a particular incarnation of liberalism as state action purporting to do good at the cost of individual rights. If you agree that it is a bad decision the what are we arguing about? What is it something being an example of something, you don't understand? It's the very anomaly that drives the point.

If you think that the majority's reasoning is explained by its desire to follow precedent and the value of precedent and is not driven by where the justices as a matter of their own policy preferences wanted to go--as is in fact what happens in hard cases, such as when the court splits 5 to 4--then you and I are reading case differently and we may have different conceptions of how judges think.

- basman

May 4, 2009 at 11:20pm

Basman, we have agreed from the start that Kelo is a bad decision.  (Though as I read it more carefully, I think its legal reasoning is perfectly defensible.  It is the precedent it relied on that is more questionable as a matter of constitutional intepretation.)  But we are arguing about your contention that the Kelo decision reflects liberal ideology.  To the contrary, at least with regard to what "liberal" and "conservative" have meant on the Supreme Court, it reflects conservative ideology:  deference to legislative determinations, federalism, and the elevating of state power over individual rights.  The anomaly is that "liberal" justices rendered a decision that comports with conservative judicial philosophy.

- dhurtado

May 4, 2009 at 11:48pm

Basman, regarding Rosen's piece about the potential prosecution of the lawyers who wrote the torture memos:

I am having difficulty right now with Rosen's credibility.  I am agnostic about Judge Sotomayor.  Before now I knew nothing about her other than that she is a judge on the Second Circuit Court of Appeals.  But Rosen's piece on Sotomayor is a journalistic disgrace, as is vigorously pointed out in the many comments to his post.  He and TNR should be considering a retraction.  Instead, TNR has compounded the irresponsibiity of the piece by including Sotomayor in a profile of failed Supreme Court nominees.

That said, I am in general agreement with the following propositions in Rosen's piece on the torture memos:

1. It would be very difficult to make a conspiracy charge against the authors of the torture memos stick.  It would need to be proved that the memos were not merely mistaken, but were written in bad faith in order to advance the illegal agenda of the administration.

2.  There would be significant social costs in prosecuting the lawyers, because it would undermine the open communication between lawyer and client that is required for effective legal representation and could inhibit the function of the OLC.

3.  There nevertheless should be an investigaiton of the lawyers and their clients by some non-partisan person or commission.

I disagree with Rosen that a succussful conspiracy charge would necessarily require a smoking gun such as an email in which the conspiracy is spelled out.  I think that a conspiracy charge can be supported by circumstantial evidence, including that the legal analysis is so frivolous that it could not have been made in good faith.

- dhurtado

May 5, 2009 at 12:44am

Kelo expanded the right to take. Before it, under “public use” private taking was permissible only if the taking eliminated a social harm, thereby accomplishing a “public purpose.” In Kelo the majority said   “public purpose” was a more natural meaning of the constitutional phrase “public use”. The bad  liberalism of its decision was to favour centrally planned good works siad to be for public benefit over individual property rights. kelo is an example of liberalism as bad progressivism.

I am surprised that you sat the majority displayed conservatism by way of judicial deference. The majority extended doctrinally suspect precedent and ran roughshod over historical understandings of takings to rationalize the result it wanted.

“More natural” is verbal magic.  “Use” goes to the means; whereas purpose goes ends. So the purpose in Berman was slum clearance; the use was new construction. The Kelo majority worsened the law, and did so by tampering even more with the plain meaning of the English language.

Kelo’s premise is flawed in that it deems almost everything to be a “public use.” So as long as more tax revenue will be made from the taken property then the “public use” is met.  It is one thing to create necessary public works, or to eliminate serious social harms, but it’s another when taking  is invoked to  increase taxes with the idea of enhancing the local economy. That  families can be driven from their homes so cities may get a better financial deal is *liberal-cum-progressive* do good ism on steroids driven by an inappropriate diminishment of  private property interests.

As I understand it, he historic takings cases mostly involved takings of vacant strips of land for irrigation ditches and other easements. Modern projects demol displace large numbers of people.  This difference got no consideration in Kelo. Worse, Kelo sanctioned a forcible transfer of wealth from the working class to the rich as noted by O’Connor in her dissent.  

Berman doesn’t necessarily support Kelo. Berman involved, as I noted, a major slum clearance project. The court held that “public use,” which the Court rolled into “public purpose,” was not the intended use of the land after its condemnation, but the elimination of the detriment represented by the existing slum conditions. Nevertheless the Court made it clear in Berman it was sanctioning urban transformation through redevelopment. The key to the case is harm elimination.

You say that the result flows from settled legal principles and shows the value of deference to precedent and the legislature. But rather courts wind up where they want in hard cases.  You say Kelo follows what the Court has done several times during the past century? But in the old cases advanced as precedents, the Court stressed the limited nature of its holdings. It also explicitly imposed limits on takings involving private interests seeking benefits said to satisfy the “public use” requirement by virtue of their area-wide economic impact. Those limits were discarded in Kelo, thus making it novel. Also, this argument ignores the dramatically different nineteenth century factual and policy context in which those previous takings cases were handed down, i.e., they did not involve mass displacements of people.

Thus, Kelo's doctrine that  the right to take for “public purpose,” is a “more natural” synonym for “public use,” is entirely problematic. In Kelo the majority ignored or distorted the plain language of 5th amendment more than had been done before to reach policy-driven results, while playing with constitutional language and posturing that it was following the law. To insist that policy plays no role in their formulation of the law in cases where the contrary is obvious delegitimizes the court.

In sum, Kelo was a case of active judicial expansion of preexisting policy-driven eminent domain decisions that tampered with the meaning of words to reach an unjust result preferred by the Court’s majority. The notion that the judges were being conservative in showing judicial deference makes no sense. The majority extended the law in a desire to achieve what it perceived as a liberal-cum-progressive end.

The result was no more dictated by precedent or deference than I am dictated to by my astrological sign.

- basman

May 5, 2009 at 1:45am

It's late but I thought Rosen's little piece on Sotomayor--who I kow next to nothing about-- not so terrible in giving readers who are not going to wade through her opinions a particular picture of her. I noted this in one of the comments:

...Interestingly, this assessment is consistent with the views expressed in the Almanac for the Federal Judiciary, a Zagat's guide of sorts to federal judges. A few comments: "She is a terror on the bench." "She is very outspoken." "She can be difficult." "She is temperamental and excitable. She seems angry." "She is overly aggressive--not very judicial. She does not have a very good temperament." "She abuses lawyers." "She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts." "She is nasty to lawyers. She doesn't understand their role in the system--as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like."...

Is this post accurate?

- basman

May 5, 2009 at 1:52am

I just read quickly through Rosen's peice on Sotomayor. I doubt very much he has an axe to grind. It's more in the nature of reporting than a critical analysis. He's spoken with a lot of people and this what he reports on. I don't find it disgarceful at all and don't think he has anything to apologize for, absolutely nothing!

- basman

May 5, 2009 at 2:10am

As for Rosen's piece on going after the lawyers, I disagree with you and him on the efficacy of investigations.

I don't know enough about the law of criminal conspiracy in Canada or under American federal law to know whether circumstantial evidence is legally insuffcient to ground a case. My sense of first principles tells me that circumstantial evidence could be suffcient. But I read Rosen to be saying soemthing different:  that with only circumstantial evidence--absent some smoking gun email or some such-- a case so difficult to make out in any event would be a *practical* impossibility without such evidence, Which is why I think the AG will not prosecute the lawyers. I think Obama wants neither cases or inquiries. I think he's right. I don't think that there will be the former. I'm less confident but am inclined to think that there won't be the latter either.

- basman

May 5, 2009 at 2:21am

Rosen: www.nytimes.com/.../02rosen.html:

" ...With a nearly filibuster-proof Senate, Mr. Obama may not feel as much pressure to appoint a stealth candidate as George H. W. Bush did. But he will feel the same pressure to satisfy his base without inflaming the opposition. (He will also feel pressures of demographics and identity politics that the elder Mr. Bush could not have imagined.) Given the president’s instincts for moderation and conciliation, it’s easy to imagine him being tempted to follow the Souter model, selecting a candidate whose judicial philosophy is opaque or uncertain.

This would be a mistake. Mr. Obama shouldn’t focus on the most ideologically liberal candidate: all the contenders mentioned in early news reports are good, reliable liberals. Nor should he necessarily look to judicial experience as a guide: after all, Justice Souter had been a state court judge for 12 years.

Instead, Mr. Obama’s focus should be on the candidate with the clearest and most galvanizing judicial philosophy, the greatest intellectual ability and the temperament that makes it most likely she (and the first nominee should be a she) can both challenge and persuade her conservative colleagues and ultimately transform the court..."

In light of Rosen's criteria for a judge, the content of his TNR piece may begin to state "the case against Sotomayor".  Based on the reports  he received from people who work and practice at the Second Circuit, despite her other strengths, Sotomayor doesn't appear to have  a clear and galvanizing philospophy, great intellectual ability or the appropriate temperament.. I suspect that that explains his bluntness.  To repeat ad nauseum, I see nothing wrong in him reporting what what he was told.

- basman

May 5, 2009 at 2:32am

"Before [Kelo], under “public use” private taking was permissible only if the taking eliminated a social harm, thereby accomplishing a “public purpose.” In Kelo the majority said   “public purpose” was a more natural meaning of the constitutional phrase “public use”.

That is simiply not accurate Basman.  It was the earlier cases that invoked "public purpose," and there is nothing in the prior cases, taken together, that limits "public purpose" to the elimination of a social harm.  O'Connor argued that the Court SHOULD so limit the public-purpose doctrine, not that it had expressly done so.  The Kelo majority discussed the prior caselaw at length and did not purport to go back and independently interpret "public use."  The majority EXPRESSLY invoked deference to legislative enactments and to federalism as policy considerations.  Were they motivated by other, unspoken policy considerations?  Perhaps.  Can you point to other decisions authored by Stevens, Souter, Ginsburg or Breyer (or Kennedy, for that matter) that would support your conclusion that they are adherents of progressivist ideology?

- dhurtado

May 5, 2009 at 6:53am

Regarding Rosen's piece about Sotomayor, Basman says:  "It's more in the nature of reporting than a critical analysis."

It clearly is not the latter.  But it purports to be.  It is entitled "The Case Against Sotomayor."  It is subtitled "Indictments of Obama's front-runner to replace Souter."  It is promoted as the first in a series of articles discussing the strengths and weaknesses of the candidates.  You and I both know that the articles in TNR purport to be analysis and not mere reporting.

But even if Rosen's piece purports to be mere "reporting," it should nevertheless be balanced and informed.  Rosen admits that it is neither:

"I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths."

Perhaps Rosen believes his candor in that regard mitigates the distortion his piece will create.  But your reaction is a counterexample.  You acknowledge that you know little about Sotomayor (just as I know little about her), but your take-away from Rosen's piece is that "despite her other strengths, Sotomayor doesn't appear to have  a clear and galvanizing philospophy, great intellectual ability or the appropriate temperament."  Now, that all may in fact be true of Sotomayor.  But Rosen's piece is not a reliable source for drawing that conclusion, even though that is the conclusion it seeks to convey.  That's why it is incompetent journalism.

- dhurtado

May 5, 2009 at 7:48am

Cite me a prior case that involved a private to private taking at the SCOTUS level not explicable on the basis of eliminating social harm and I'll review it and perhaps reconsider my position on thios point. Do you read Berman differently from me?

- basman

May 5, 2009 at 11:53am

Don't judge a peice by its title just as you oughn't judge a book by its cover,

So it's by its content kinda' reporting.

I'll grant you it's a bit gossipy, but it's balanced in its way: it gives the good and bad things said about her. I'l grant you on this piece the guy's not winning a Pulitzer.

But it's informative and I feel I got the beginning of a feel for the lady.

Your final argument is circular for it  concludes its own premise--that the piece is an irresponsible distortion. From the premise cum conclusion you characterize my reaction as a counter example. Plus you misconceive my reaction. My reaction is that a good number of people who know her and are in her field have said these things about her. The piece itself conveys no conclusion. It just say note this; and unless Rosen is lying it's noteworthy. He is just saying to the pickers please take all things into account and be careful.

I found the piece informing and inviting to me to go further to draw my own conclusions. That's why it's not so bad and why you have misread and misconceived it.

- basman

May 5, 2009 at 12:03pm

... Can you point to other decisions authored by Stevens, Souter, Ginsburg or Breyer (or Kennedy, for that matter) that would support your conclusion that they are adherents of progressivist ideology...

Why would you ask me that?

Your question embodies soemthing that has never been my claim or *conclusion*.

You are too blunt in reading me.

My claim is that Kelo is an instance of such an ideological impulse, an instance of a certain distasteful mode of progressive/statist liberalism. Nothing more; nothing less. That's why it being an anomaly--an assertion I do not accept or reject-- is irrelevant to my observation about Kelo.

Other cases: I'll take em' and chatacterize em' as they come.

- basman

May 5, 2009 at 12:32pm

See this: blogs.tnr.com/.../the-case-for-a-latino-nominee.aspx

And in that see this: "...Is Sonia Sotomayer qualified to be on Supreme Court? I’m agnostic on that subject--I don’t know enough about her--and if you read Jeff’s piece carefully, so is he...."

I say to that: exactly!

- basman

May 5, 2009 at 3:47pm

here ya' go: www.tnr.com/.../story.html

The dude read my mind.

- basman

May 7, 2009 at 2:10pm