Balkinization  

Sunday, April 18, 2010

Judicial confirmations and nuclear disarmament

Sandy Levinson

I noticed with great interest that President Barack Obama signed an important treaty with Russia on nuclear weapons the same week that his nominee to the Ninth Circuit, Professor Goodwin Liu was savaged by Republicans seeking to prevent the President from being able to name anyone unacceptable to the GOP to the federal judiciary. I was remined of an article that David Law (now at Washington in St. Louis School of Law) and I co-authored several years ago an article tellingly titled “Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments.” We argued both that there were not obvious persons to negotiate with and, even more to the point, no way of making the negotiators comply in the future with whatever they happened to agree to, not least, of course, because they might disappear from the political scene and their particular political parties might become ever more resistant to any kind of "compromise."

It obviously remains to be seen whether the Democrats will have the backbone to stand up to Republicans, including invoking the "nuclear option" of eliminating filibusters. As it happens, I think that the case for filibustering judicial nominations is considerably stronger than the case for filibustering "ordinary legislation," given the importance of lifetime appointments, so I have decidedly mixed feelings about the "nuclear option." But, obviously, one can't tolerate ubiquitous filibustering. Elections should have consequences, including the packing of the federal judiciary with judges sympathetic to the President's broad constitutional vision.

Of one thing I am confident: If Goodwin Liu is successfully blocked, then, then Republicans get back into power, all Democrats will expect their/our champions to be equally ruthless and to prevent any Republican president from picking anyone not "acceptable" to them. The only way to bring this particular "war" to an end--[ADDITION: or, as David Law has suggested, achieve what might be a more stable equilibrium--end is to amend the Constitution and to require a two-thirds vote for confirmation (similar to Germany), which would require inter-party negotiation over any and all nominations unless one of them actually manages to get 67 seats in the Senate.

Goodwin Liu is an essential test for the Obama administration. He is indeed the equivalent of Antonin Scalia, Frank Easterbrook, Richard Posner, and the host of other able conservatives placed on the courts of appeals very early in the Reagan Administration, who provided the "bench" from which Reagan and Bush could draw for the Supreme Court. (To an astonishing degree, Clinton seemed to draw no lessons from the strategy of his Republican predecessors. One of his most distinguished nominees, Guido Calabresi, was clearly too old to be a credible Supreme Court nominee. He did, of course, make some other excellent appointments, including Diane Wood to the Seventh Circuit and Margaret McKeown to the Ninth Circuit, both of whom would make excellent justices.) If Obama and the Democrats in the Senate capitulate on the Liu nomination (the way they shamefully did on Dawn Johnson's nomination to head OLC), then, I submit, Dahlia Lithwick is altogether right to describe the mood among Obama supporters as approaching "despair" with regard to regaining control of the judiciary.

Comments:

The only way to bring this particular "war" to an end is to amend the Constitution and to require a two-thirds vote for confirmation (similar to Germany), which would require inter-party negotiation over any and all nominations unless one of them actually manages to get 67 seats in the Senate.

I'd be strongly opposed to this. There will always be one party which would prefer vacancies in the judiciary to any appointment by their opponents. Right now that party is the Republicans, but it would have been the Democrats back in the days of the "Solid South".

The best solution is to (a) require a vote within a specified time or the nominee is appointed automatically; and (b) put term limits -- say, 18 years -- on the judiciary.
 

This appears to be the article cited or some form of it.

Liu did a good job during the hearing a few days ago, hearings that were more substantive on the whole than the Sotomayor hearings.

And, particularly with some of his supporters, darn right he should be confirmed.

With his moves in the area of nuclear weapons, perhaps something related to another type of nuclear option could be in Obama's vision of his legacy.
 

I think Mark Field's arguments reasonable. It's somewhat non-germane, but the Senate's role over general legislation (outside of select areas) very well might warrant such a "delay but not permanent block" function.

I would allow service in another level when the time is spent and/or some sort of "senior status" role where the judgue or justice fills in when necessary (for recusals or so forth).
 

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Maybe the Obama Administration, to get more liberal nominees on the bench, could agree to propose and have confirmed some of the Bush administration's filibustered candidates For example, to get Lui and maybe Professor Karlan on the bench, he proposes Miguel Estrada.

He could propose that for every 3 nominees he is allowed to choose, the republicans can get 1 (or some other ratio). This could be used as a model for future administrations. While Bush did this for some nominees (White on the 6th Cir and Gregory on the 4th), it was not the norm.

That said, it might result in nominees who are much more liberal or conservative given that they will not be able to be blocked by just 41 votes.
 

I would allow service in another level when the time is spent and/or some sort of "senior status" role where the judgue or justice fills in when necessary (for recusals or so forth).

Agreed.
 

MS's suggestion is interesting. There is some reason to believe that this is more-or-less the way it functionally operates in Germany, save that each of the two major parties (at least) can veto appointments by the other party that are deemed too extreme. But there is surely some reason to be wary of a "winner take all" approach to the federal judiciary, which is basically (with a few exceptions) what we have now at the appellate levels.
 

Many institutions limit access to their online information. Making this information available will be an asset to all.

Research Papers Writing
 

I'm waiting for the day when a nominee being grilled by the Senate Judiciary Committee finally responds:

"Take this appointment and shove it."

As Justices get out of their robes more often to seek celebrity status, as TV gets direct access to oral arguments, as the number of cases taken by SCOTUS continues to decrease while legal and political issues get more complex, perhaps the unelected judiciary may get its public come-uppances alongside the political executive and legislative branches. The proposed changes in the judicial appointment processes will merely invite political counter insurgencies.
 

MS' policy was put in place by Bush I in some fashion and was the way Sotomayor first came on the bench.

Since Estrada is a favorite example by Republicans of Democratic filibusters, avoiding assigning blame and all, it would be a somewhat devious idea to use him to get 2-3 liberals through.

As to Shag's comment, lower courts still have a lot of cases, and -- keeping things in perspective as some members of this blog have in various things they wrote -- still have a decent amount of power.
 

As to Joe's point:

" ... lower courts still have a lot of cases, and ... still have a decent amount of power."

I am reminded of the old Greek saying that Brookline's own Mike Dukakis used during political campaigns, including for the presidency:

"The fish rots from the head down."

such that at times some lower courts (both trial and appellate) may have an indecent amount of power. With SCOTUS clerks deciding, to a great extent, on cert issuing (especially post Stevens), more and more circuit conflicts will result, as well as from 5-4 SCOTUS decisions.
 

While Jack Balkin is not inviting assistance for a title to his forthcoming book on constitutional interpretation, perhaps we could volunteer some title - or subtitle - suggestions. Here's a start:

"BACK FROM THE FUTURE"

"THE CONSTITUTION: IT WAS LOST BUT NOW IT'S FOUND"

"WITH ALL DEBILITATING SPEED"

Here's a good title but like "WAR AND PEACE" it's already taken:

"VAGARIES AND VARIETIES IN CONSTITUTIONAL INTERPRETATION" (Thomas Reed Powell, 1955)

Here's another interesting title that's also already taken:

"ORIGINALISM IN A NUTSHELL" (J.D. candidate 2010 Emily C. Cumberland, Engage, Vol. 11, Issue 1, Page 52 available by Googling. This article is quite concise. I'm saving a hard copy for the extensive end notes.)
 

Here's another title recommendation for Jack's forthcoming book:

"VAGARIES AND VARIETIES OF ORIGINALISM"

unless it's already been taken.
 

I'm with Mark re: "There will always be one party which would prefer vacancies in the judiciary to any appointment by their opponents." Given the problem we have, now, with sheer obstructionism, I don't think we should build it into the very structure.

Mark's and Joe's combined idea is interesting. I think I would push it out to 20 years, for safety's sake - besides, it's a nice base ten number. Would the libertarians still complain about "our black-robed masters" under such a system?
 

As to MS's notion about trading: I think it has surface appeal, but further reflection makes me worry about the bargaining that would go on.

Can the minority refuse the President's offer? ("No, we won't trade any positions for anyone other than So-and-So.") Might not the minority be tempted to pick such impossbile to accept (for the Prez) appointees that the system simply runs aground, again?
 

The proposal for fixed judicial terms is a form of term limits. There is a term limit for the Executive that came into being by the amendment process attributable to FDR being elected for a fourth term in 1944. Perhaps the concern was with the potential for the imperial presidency. But FDR was a special case during special times. Perhaps had there been greater transparency at the time about the health of the president, there might have been no need for the amendment. Perhaps the amendment has served us well. But there is the matter or a second presidential term being somewhat of a lame duck status.

With regard to the legislative branch, while there have been successful efforts with term limits for state legislatures, there does not seem to be a strong push at the national level. If there were such term limits for congress, the lame duck status might lead to more positive results than in the case of the presidency. For a lame duck congressman just might tend to do the "right thing" instead of just sticking to the party line.

Perhaps if there were a constitutional convention, the matter of a fixed judicial term should be considered. But I doubt that congress would address this, as the public might then think about congressional term limits. I doubt that a call for a constitutional convention could be driven by a proposal to limit judicial terms. 18 years would cover 4 1/2 presidential terms. How might a justice/judge be expected to judge differently because of a term limitation? As the days dwindle down, might such a judge think of his/her future? Might such a judge tend to be less ideological in judging? Perhaps there has to be a better evaluation of the pluses and minuses of the present lifetime appointment before considering a change. Has the integrity of SCOTUS suffered because of Justice Stevens' long service? How about for CJ Rehnquist? Or is the concern more with a Justice Thomas appointed at a relatively young age? As of now, I am not convinced that setting a term limit requiring an amendment would be worth it.

Now back to suggested titles for Jack's forthcoming book:

"ORIGINALISM: CONSTITUTIONAL BIG BANG THEORY, Understanding Meaning and Intent at the Beginning"

"ORIGINALISM: CONSTITUTIONAL BUNK(ER)"

"ORIGINALISM'S DEAD HAND SCROLLS"
 

I'm not keeping up with Prof. Balkin's book developments, but do find his attempts to form some sort of liberal originalism a questionable enterprise.

Those titles are interesting though. One reminds me of a current sitcom. Another of Downfall, the Hitler movie. The third sounds like some sort of Indiana Jones knockoff.

I think I'll rest with my copy of "Keeping Faith With The Constitution," co-written by hopefully the future Judge Goodwin Liu, and available for free online.

[oh, as to balls and strikes -- as a baseball fan, I wonder how that is supposed to make me feel better. Rule 10: the strike zone is such, except if you are a rookie or umpire is having a bad day.]
 

Joe said...

I'm not keeping up with Prof. Balkin's book developments, but do find his attempts to form some sort of liberal originalism a questionable enterprise.

Jack's project does appear to share the oxymoronic illogic of Bush's "big government conservatism."
 

Both of them wanted to take advantage of the appeal of a label, (Conservatism in Bush's case, originalism in Balkin's.) while emptying it of most of it's meaning. Maybe in the spirit of "compassionate conservatism, Balkin could refer to his position as "anachronistic originalism".
 

Brett's attempt at subtlety is in reverse as originalism is anachronistic.

Please note both our former backpacker and Brett, as if yoked, are now using Jack Balkin to distance themselves from and abandoning Bush/Cheney now that they have been invited to a tea party. Alas, both our yodeler and his echo Brett were not heard from during the Bush/Cheney years complaining about the latters' big government and compassionate conservatism.
 

"Alas, both our yodeler and his echo Brett were not heard from during the Bush/Cheney years complaining about the latters' big government and compassionate conservatism."

Simply wrong, in my case. I complained plenty. I *did* view Bush as the lesser evil, but I was quite clear that I meant that "evil" seriously.

Apparently, if you don't agree with liberals about all the particulars of why Bush was a bad President, you must have loved him.
 

Brett seems to be saying that Al Gore was the "greater evil," seriously. One could examine Gore's record pre-SCOTUS' 5-4 election of Bush/Cheney to look for evil on a comparative basis with Bush. But what would that evil look like? We have the benefit of the performance of Bush/Cheney for 8 years with that administration's record hanging out in public as it was dumped on Pres. Obama. Perhaps we should examine Gore's record post-SCOTUS 5-4 election to look for "evility."

No, I'm not ready to unyoke until Brett presents more evidence of the "greater evil."
 

I should note that I understand what Prof. Balkin is trying to do and in some sense "original understanding" can be used to mean "it was originally understood that there would be a lot of flexibility" or so forth.

See, e.g., Justice Stevens once noting: "If great lawyers of his day–Alexander Hamilton, for example–were sitting with us today, I would expect them to join Justice Kennedy’s opinion for the Court."

But, my concern is that this sort of thing is inherently limited. Balkin sees things as open-ended while the other side sees things more closed. (roughly speaking) He seems at times trying to convince the other side or gain respectability by using their rhetoric. At some point, it isn't convincing to anyone but those who want to be convinced.

This includes using yet another form of "originalism" which is getting more complicated than medieval Catholicism.
 

Brett:

All the left has anymore is "blame Bush." Their signature accomplishments of the Porkulus and Obamacare are polling around the same level as genital herpes and only 22% trust this government, the lowest in modern polling history.

Shag:

FWIW, I was ticked off enough at Bush's spending like a drunken Dem by 2004 to consider voting libertarian again like I did with his old man back in 1992. However, with my brother serving in Iraq and Afghanistan, I would note waste my vote and allow Kerry to surrender in Iraq.
 

Joe's comment close:

"This includes using yet another form of 'originalism' which is getting more complicated than medieval Catholicism."

suggests to me perhaps the Catechism question and answer method for interpreting the Constitution. But such a simplistic method may result in lapsed constitutionalists.

As to our backpacker's personal revisionism on Bush/Cheney, while I did vote for Kerry, I love my brother so much that if he were serving in Iraq and/or Afghanistan, I would have voted twice for Kerry. By the way, what was the US troop deaths and injuries body counts pre-Bush/Cheney reelection compared to post?
 

Shag:

What kind of peculiar love is it that would force your broth to fail in his mission and make his work and sacrifices in vain?

This would be the epitome of disrespect for your brother.
 

Someone over at Volokh Conspiracy set up an "Open Volokh" blog that links posts without comments and opens up comments to reply to them.

Nifty idea.
 

Fail in what or whose mission? Blood for oil? Troops follow orders. But that doesn't mean the orders are proper or moral. Grunts make the sacrifice but for what end result? Already Afghan in America's longest war - and there really isn't a tunnel to see light at its end - rather it is digging a hole, a deeper hole. i missed Korea because of college and law school. I missed Vietnam because I fulfilled my draft obligation between Korea and Vietnam. I saw guys from my neighborhood who had served in WW II be recalled during Korea because they joined reserve and national guard units based upon potential benefits with unanticipated risks of recall to active duty based upon overtures of military recruiters of summer camp for two weeks drinking beer with buddies and monthly meetings, also meeting and drinking beer with buddies. I saw what happened in 1968 with Nixon's promise for a Vietnam solution. I saw the campus of a local university I was attending in a Master of Laws program close down in 1970 as a sequel to Kent State but without troops killing soldiers. Finally, Vietnam ended not with a victory but a withdrawal. This resulted in the all volunteer military that served to some extent as an employer of last resort - and still does. Wars such as Afghanistan and Iraq are tolerated because of minimal sacrifice on the part of most Americans. Yes, I love my brother and would not want his life on the line under the circumstances of these wars. So I would not call it failure. Yes, many grunts - and their families - have made sacrifices, but these sacrifices may have been in vain. Decisions to commence wars can be easy; but once in, getting out is the difficult part, as Pres. Obama is finding out. Ike as presidential candidate said he would bring the troops home form Korea. He did. His VP when he successfully ran for President in 1968 said he had a plan to end the war in Vietnam. What was that plan that took so long, ending up as a withdrawal, without victory? So for me it's brotherly love not disrespect.

By the way, what were those death/casualty counts pre-Bush/Cheney reelection compared to post?
 

Michael C. Dorf has an interesting column at FindLaw (4/21/10) titled "Becoming Justice Stevens: How and Why Some Justices Evolve" that ties into this thread as well as other recent posts on this Blog that do not provide for comments. Here's an interesting quote from Dorf's column that relates to constitutional interpretation:

"To use more contemporary language, judges who seek narrower interpretations of legal principles may come to see the relevant texts as not expressing principles at all, but only as expressing narrow historical compromises. This view goes under the name of 'textualism' in statutory interpretation, and 'originalism' in constitutional law (although recent years have witnessed a proliferation of views that claim to be 'originalist)."

Also, via Larry Solum's Legal Theory Blog, I downloaded Francis J. Mootz III's Chapter 13 "Interpretation" (to a new book that he contributed to) that I plan to read shortly. I'll be an octogenarian by the time Jack Balkin's new book is expected to be published next year. I would like to go to Newport (I've never been there, even though it's only a couple of hours by car) to watch Jack roasted by his "fellow originalists" fueled with pages of hi his manuscript. I've been to similar roasts and Jack has my advance condolences. I have read Mootz in the past and have appreciated his hermeneutical approach on interpretation. Maybe, just maybe, the Holy Grail of Constitutional Interpretation will be found in my lifetime. I should live so long.
 

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Shag:

What kind of peculiar love is it that would force your broth to fail in his mission and make his work and sacrifices in vain?

This would be the epitome of disrespect for your brother.
# posted by Bart DePalma : 2:10 PM


Baghdad, sending your brother into Iraq was one of the most idiotic things this nation has ever done. For you to continue to pretend otherwise only shows that you care more about refusing to admit you were wrong than you do about your brother. THAT is disrespect.
 

"Holy Grail of Constitutional Interpretation will be found in my lifetime."

the "last crusade"?

Balkin contributed to a book entitled Constitution 2020 or something. Samples can be found online. I doubt the true cross will be found by then.

But, what fun would that be anyways? The fun is the struggle. Perhaps, instead of 70 virgins (or white raisins?), paradise is a universe where your ideal view of the Constitution exists in practice?

Have no fear Brett, Bart, Sandy Levinson, et. al.! Hope is still there!
 

Joe has exposed my quest with this:

"But, what fun would that be anyways? The fun is the struggle."

I started to read Mootz's Chapter 13 on the trolley while returning home from what is claimed to be the U.S.'s oldest continuing law library. It starts with this quote from James Boyd White:

"It is in fact the genius of law that it is not a set of 'commands,' but a set of texts meant to be read across circumstances that are in principle incompletely foreseeable .... It is this fact that gives rise to the intellectual and ethical life of legal thought and argument."

I follow the Monty Python model in my quest. Humor can fuel the intellectual and ethical life of just about everything. Now if only we could get Jon Stewart interested.
 

""To use more contemporary language, judges who seek narrower interpretations of legal principles may come to see the relevant texts as not expressing principles at all, but only as expressing narrow historical compromises. This view goes under the name of 'textualism' in statutory interpretation, and 'originalism' in constitutional law (although recent years have witnessed a proliferation of views that claim to be 'originalist).""

I don't mind seeking principles in the law and constitution. What I mind is the nifty trick of extracting principles from the law, at a suitably high level of abstraction, and then applying them in contradiction to what the law actually says.

Modern commerce clause jurisprudence is a perfect example of that. Taking a clause that authorizes congress to regulate interstate commerce, and applying principles from it in such a way as to permit the regulation of commerce that isn't interstate, and activities which aren't even commerce, on the theory that Congress's regulation of interstate commerce might be less than perfectly effective if anything else were beyond it's reach.
 

Perhaps we can expect a post by a Balkinite on the recently enacted Arizona immigration law. I did note a comment somewhere on the Internet that AZ's governor may in years to come regret her actions with this law as did Earl Warren with his involvement with the Japanese internment when he was CA's AG.

I just finished reading in the March 22, 2010 issue of Sports Illustrated Alexander Wolff and Michael Atchison's article "Utah The First Cinderella - Led by Arnie Ferrin Jr. and Wat Misaka, the 1943-44 Utes peaked at just the right time and became the unlikeliest of champions." Misaka was a Japanese American, living in Utah at the time of the internment. It's a heartwarming story of the success of the Utes' basketball team. In the closing paragraphs, Misaka tells the son of deceased teammate Dick Smulin visiting him in 2008 that back in those Ute years "Your dad promised me he'd have my back. That he'd make sure nothing ever happened to me. He did."

Let's hope there are some Dick Smulins in AZ.
 

Brett's continued "Johnny-One-Note" on Wickard fails to improve or impress with repetition despite Justice Thomas' support. I would direct Brett to originalist extraordinaire Larry Solum's Legal Theory Blog for his "Bookworm" recommendation this week "The Living Constitution" by David A. Strauss, not to change Brett's tune but just to annoy him.
 

Nothing can annoy me today: I got my last dose of chemotherapy Thursday, and the oncologist says I'm cured. I'm, for the nonce, unannoyable.
 

I'm suddenly annoyed by all the money our government spends on cancer research.
 

My day just got even better! :)

Seriously, the only person that book is liable to annoy is my wife, due to my habit of arguing out loud with books I'm reading.
 

Mourad,

I have a favor to ask of you. I'm not trying to get you in the middle of the Second Amendment battle here in the former colonies. But I am in the process of reading a recent article available via SSRN at:

http://ssrn.com/abstract=1586459

by Patrick J. Charles titled "The Constitutional Significance of a 'Well-Regulated Militia' Asserted and Proven with Commentary on the Future of Second Amendment Jurisprudence."

The article runs 57 pages single spaced. Pages 1-23 include Part I. "The Early Anglo Origins of a 'Well-Regulated Militia' and Part II. "A 'Well-Regulated Militia' and England's 1957 Milita Act." The remainder of the article focuses upon the "history," "meaning" of "A Well-Regulated Militia" in the U.S.

My favor is to ask you to read pages 1-23 to obtain the benefit of your knowledge of English history on "A Well-Regulated Militia." In the Heller case, there had been two amici briefs of historians; the historians brief supporting Mr. Heller, as I recall, was no where in as much depth on "A Well-Regulated Militia" even though that brief focused to a great extent on the use of guns in England pre-Revolution.

Mourad, I am probably asking too much of you. But here in the former colonies we are awaiting with bated breath SCOTUS' decision in the McDonald case considering the application of the Second Amendment to the states. If the Second Amendment is, as expected, incorporated by means of the 14th Amendment, the Court will have to address the Second Amendment's introductory "A Well-Regulated Militia" as it applies to the states. Maybe, just maybe, the "history" relied upon by SCOTUS in Heller was not quite accurate.
 

"Maybe, just maybe, the "history" relied upon by SCOTUS in Heller was not quite accurate."

Heh, no maybe about it. While I've got my opinion about who was playing looser with history, (Saul Cornell, in particular, can be a remarkably bad historian when history doesn't support his position.) neither side was exactly covering themselves with glory in that respect. The history of the matter doesn't support a reading of the Second amendment that's very popular on either side of the debate here.

I, too, would be interested in a more disinterested perspective on the British aspect of that history.
 

Getting back to my off-topic comment on the recent AZ immigration law, is that law a variation - at a state level - of the federal Fugitive Slave Act of 1850? (I am surprised that a post on this law has yet to appear on this Blog.)
 

In a word, no. It's closer to it's exact opposite, if you want to get right down to it, given the nature of the coyote business, and treatment of some illegal immigrants.

Unless maybe you want to portray the Mexican government as a slave owner, and it's citizens as slaves...
 

I don't mind seeking principles in the law and constitution. What I mind is the nifty trick of extracting principles from the law, at a suitably high level of abstraction, and then applying them in contradiction to what the law actually says.

Echoing Scalia's dissent (joined by Brennan and Marshall, for all the liberals here who knee-jerk at the mention of Scalia's name) in the ridiculous Maryland v. Craig decision:

"This reasoning abstracts from the right to its purposes, and then eliminates the right."

(Unsurprisingly, the decision was written by Balancing Test O'Connor.)
 

Brett, the earlier federal Fugitive Slave Act was basically toothless in the non-Slave states. The 1850 Act, provided such teeth in an effort to thwart abolitionists in the non-Slave states, in the effort of the Slave states to extend slavery into the non-Slave states and, in conjunction with other federal statutes, into the territories. (Originalism at its worst, followed up by the originalist CJ Taney's Dred Scott opinion.) I used the work "variation" advisedly. Consider that with the federal Fugitive Slave Act of 1850, free Blacks became vulnerable because of the teeth in that Act.
 

David, I'm not much of a fan of Scalia, but I have to admit that was a cutting dissent which should have the majority in that case feeling shame, if they're capable of it.
 

"This reasoning abstracts from the right to its purposes, and then eliminates the right."

Is this one of the times when Scalia says that "freedom of speech" doesn't include pornography?

I think the dissent is fine -- btw some people around here kneejerk about "liberals" too, so it works both ways -- but the idea is that the BOR has provisions that were not traditionally held as absolute.

This being Scalia's rule in many cases, absurd results at times goes his way too.

In Coy v. Iowa, Scalia himself referenced "there have been no individualized findings that these particular witnesses needed special protection" ... this doesn't seem that hard to come by -- if he was serious about that -- making the exception possible in most cases even here.
 

Brett, congratulations on your medical cure. Hopefully some among currently 30 million uninsured may under HCR obtain the benefit of similar cures that have been funded/subsidized over the years with federal taxes. (I am aware of today's NYTimes lead editorial on "Faltering Cancer Trials." More must be done, and better, for more relief from the dread of cancer.) I do not think of medical care as a zero sum game. Nor do I think libertarians do - at least I hope they have some compassion in this regard. And these medical cures result from the concept of commerce, yes, interstate commerce, that is regulated at the federal level. I assume libertarians recognize the need of interdependence in a society of over 300 million for providing adequate medical care through not only services but products.

With your cure, I do plan to continue in efforts to annoy you, not to impact you negatively medically. I wish you a long life. On the topic of annoyance, there's an old joke about a married man being told of a happy bachelor, with the former asking: "What does he do for aggravation?" Well, it's said that married men live longer, or, as a married man might say, "It only seems that way." With a wife for over 40 years and 4 adult children (no grandchildren yet), I know a little bit about annoyance; and there were the 8 years of Bush/Cheney. Sometimes one can thrive on annoyance. So stay healthy, Brett, and I'll try to help you thrive. But please, get beyond Wickard.

I guess you've yoked with me on getting some help from Mourad on "A well-Regulated Milita." Let's wait for a response before we break up the team. (I assume I'm to the left of you.)
 

My day just got even better! :)

# posted by Brett : 3:51 AM


Fortunately, the realization that you appear to be genetically vulnerable to cancer cheered me right up. It will be back.
 

I wonder how the "Roast" of Jack Balkin last Friday turned out. Last fall, I attended a similar "Roast" of Ronald Dworkin in connection with his manuscript for "Justice for Hedgehogs." It was an interesting grilling. Dworkin held his own but I do not know how close his new book is for publication. That's why I enjoy SSRN and the speedy publication of papers, including in draft form. Anybody out there attend Jack's Roast in Newport - who will comment?
 

"I think the dissent is fine -- btw some people around here kneejerk about "liberals" too, so it works both ways -- but the idea is that the BOR has provisions that were not traditionally held as absolute."

Scalia's point being that this wasn't one of the guarantees that were violated from the start, (Kind of pointless writing into the Constitution amendments prohibiting the government from doing things it wouldn't be tempted to do, if you ask me.) the confrontation clause actually HAD been held as inviolable for most of our history, and the Court was going to newly strip it of it's force. Did so strip it, of course.
 

BB: Seriously, please cut out the "I wish all my enemies were dead" crap. If not for any sense of decorum, then because you sound way too much like Glenn Beck when you do that. :)
 

BB: Seriously, please cut out the "I wish all my enemies were dead" crap. If not for any sense of decorum, then because you sound way too much like Glenn Beck when you do that. :)
# posted by PMS_CC : 7:58 PM


I'm not wishing my enemy dead. I'm wishing my enemy the fate that he would gladly force on the rest of us. If Brett had his way the government would not invest in cancer research.

If you have a problem with me wishing Brett wasn't a hypocrite, tough shit.
 

This comment has been removed by the author.
 

Someone over at Volokh Conspiracy set up an "Open Volokh" blog that links posts without comments and opens up comments to reply to them.

Nifty idea.


Following Joe's lead, I started a companion website to allow comments on Balkinization posts that have comments turned off: Open Balkinization

I started with the last week's worth of posts. Let me know what you all think.
 

"Scalia's point being that this wasn't one of the guarantees that were violated from the start"

If this was his "point," it would be wrong, since it was violated in various ways, especially if its meaning is as stringent as it now is held to be.

"the confrontation clause actually HAD been held as inviolable for most of our history, and the Court was going to newly strip it of it's force"

Again, Scalia himself in a previous opinion (I quoted it; I'm unsure why you ignored it) left open a similar exception. He therefore accepts historically the provision has exceptions. The debate is over their breadth.
 

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Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

I am not the same, having seen the moon shine on the other side of the world.
Agen Judi Online Terpercaya
 

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