"the law"

And Also: The movie Downfall was in part based on the memoirs of a young secretary, Until the Final Hour by Traudl Junge with pre and post Hitler material added by editor Melissa Muller (who also has a bio of Anne Frank). Interesting perspective, almost trivial at first, but gets darker as the war goes downhill. Good notes on the dramatis personae -- wish more histories had that!

“I don’t understand the concept of extraordinary success,” Chief Justice Roberts objected. “The results that are obtained are presumably the results that are dictated or commanded or required under the law.” The chief justice said the outcome of a case “should be what the law requires, and not different results because you have different lawyers.” Could a district judge really suppose, he wondered, that “if it weren't for how good you are I would have made a mistake?”

-- Linda Greenhouse

Greenhouse suggests that this sounds like Justice Sotomayor's motto of just following the law. Mr. Umpire here might have missed the point though as suggested by some comments. The result here was a successful challenge to problems in a foster care system. It was in some part a result of the efforts of the lawyers, who was able to obtain "extraordinary success." If it was just a matter of the law, as Greenhouse notes with tongue slightly in cheek, why would some pay John Roberts' upper scale fees? Maybe, it is not just what the law is, but how the case is made and applied?

“My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

Justice Alito noted to the Federalist Society that this statement by Sotomayor was far from controversial, but some people were upset about it all the same. Controversy was not the problem, of course, and it is inane to suggest that was the problem. The problem was that "the law" is not a clear-cut affair, especially when discussed by someone who speaks about "wise Latinas." But, the saving grace is that her comment (and that speech) suggests she knows this, even if it is in bad form to spell it out to Congress. A bit of spin at the hearings is part of the program though some believe in utopia.

"The law" does command the result -- judges do interpret "the law." But, how does a judge determine the law? Part of the mix will be their "personal and professional experiences." These things "help [them] listen and understand" the law. By the nature of things, people with different experiences will view things somewhat differently. This is a good thing -- you have nine justices in part because they each will provide some non-fungible experiences and insights to the table.

"still be far better than any of the available alternatives"

And Also: Funny Get Fuzzy (Trojan Ferret!) and Pearls to Swine (new enemy: cows, Rat as talk show host) clips last week or so.

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

At the end of an article talking about how trying KSM et. al. (the others that will be tried criminally also rans at this point in most of the coverage) will lead to various rulings perverting the rules, a criminal defense attorney tosses that in. The italicized portion is my emphasis. Let's not totally bury the point that sort of ruins the buzz of the rest of the article for some people. Even with all of that, it STILL is the best thing to do. Such is the judgment as well of this op-ed by Steven Simon, Adjunct Senior Fellow for Middle Eastern Studies.

Does this mean it will be pretty? No. But, the realistic supporters of the choice will unlike many on the other side play fair -- they will note the problems but not ignore that the alternatives leave much to be desired as well. The "toll" will occur somehow no matter what. If these people are tried by military commission, they will have lawyers too and the bottom line will likely be a way to paper over torture and other mistreatment. Bad law can result there for future cases too. Not that bad law (at times ignored when new litigants are involved, see also Bush v. Gore) is a stranger to other controversial trails. Mobsters, for instance, have a special kind of justice.

I also think many Americans are honest with themselves here. This "great victory" business is good for the naive and public statements by politicians, but others know better. And, we know even your OJ had far from "ordinary" criminal procedure.* So, who really thinks these guys will? Seriously, let's cut the sarcastic disdain. We have a lousy situation here, and whatever is done will be imperfect, a mess even. Too many people to deal with, torture and other stuff making it even harder. Many Democrats (like Sen. Webb and his Pearl Harbor references) are not helping much either. As to Sen. Graham, see here.

So, we can at best hope for a far from great victory. By now, I think most of the country realizes this, but lots of b.s. commentary will fill the airwaves. This doesn't mean the path taken by the Obama Administration, especially some of their too gung ho assurances of success (enemy combatants can be held without criminal convictions, but their freedom of movement is not as much as their rhetoric implies) and talk about using whatever works best to convict is too admirable (see, e.g., Glenn Greenwald today). But, let's not be overly shocked about gambling in Casablanca. And, imperfect justice is not the same thing as sham justice.

Going to be a lot blather, helping people forget the old dispensation was to leave these people in holes somewhere, a path even Bush found unworkable at the end.

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* Some of the complaints have a real naive feel to them. For instance, the cry that having these defendants tried in this way and location is a "show trial" [just like in Russia, right?] and selectively chosen because it is the best way to get a conviction.

Forum shopping and prosecutorial discretion? No! When terrorists are not involved, prosecutors would never do that. They would not selectively choose the people who would best have a shot at being prosecuted. They would never ahead of time assure victory -- it is always "innocent until proven guilty!" here.

Various

As a fan of The Penguins of Madagascar, found the Madagascar Christmas special (penguins minor characters) lame. Volokh Conspiracy is hot for the upcoming gun cases. The two main briefs (covering due process and privileges or immunities) are interesting and well done. See also, Balkinization on judicial nominations.

I’ll Scream Later

I have enjoyed Marlee Matlin in various things, including the t.v. show Reasonable Doubts, and she was a great sport in the recent Family Guy live special. Her new autobiography is an enjoyable light read with some moments of seriousness. It is about her life, not being deaf as such. For instance, we learn nearly nothing about the tiny amount of hearing that appears to linger on. Curious about that.

Governmental Duty To Affirmatively Act (Our Right To Have Them Do So)

And Also: I'm not quite sold about the move, but a NY Daily News columnist was a (to quote him) "dummy" to ridicule the move as just plain moronic. As to the 'Boys, well happy for the Packers, but it sort of gives the Giants more hope than they probably deserve.

The special election for an upstate NY House seat in the end played out how the Constitution provision involved suggests it should. House seats are ultimately about local issues, and though it is not compelled by the text, the district system of selecting them highlights that. The Conservative Party outsider was not really concerned about local issues, and had a now infamous session with local press that highlighted this. Really, this is not surprising -- a third party candidate is focused on their issues. Problem for the Republicans was that events overwhelmed things.

Meanwhile, the Republican Party candidate (a state legislator) had some real social liberal bona fides (pro-choice, supportive of same sex marriage). She was not a kneejerk party ideologue sort. Rachel Maddow how her on and didn't ask her about such things (what about the health care bill?). But, and an endorsement from a pro-choice group highlighted the fact, she could well have been an asset as a sane voice in the Republican caucus. There appears to be some. Instead, someone some fear is a Blue Dog sort won. The Republican, who endorsed him, very well might feel comfortable in that caucus.

I say public life with no reference to the incumbency of political office. By the public life of an American citizen I refer to his life as a sovereign; to his constant participation in the active government of his country; to the continual study and decision of political issues which devolve upon him whatever may be his occupation; and to his responsibility for the conduct of national and State affairs as the primary law-making, law-construing, and law-executing power, no matter whether or not he is personally engaged in the public service as policeman or President, as any State official whatever, member of Congress, Chief-Justice of the United States, or a humble justice of the peace. In republics official stations are servitudes. The citizen is king.

The context of this quotation, by a late 19th Century member of Congress, can be found in my discussion here as well as this law review article ("Education, Equality and National Citizenship") cited there. The article is an interesting one, underling how originalism and history is not really the enemy of the liberal point of view -- "originalists" tend to have a slanted view of things that often enough is a shallow view of the complexities of the situation. For instance, if Justice Harlan was so right in Plessy, why don't conservatives support his dissent in the Civil Rights Cases? They do realize St. Harlan also supported laws against interracial sex, right?

The discussion highlights the importance of education to citizenship and therefore the duty (and power) of both the states and the feds to secure some baseline of adequate education for all. Equality does cover social, civil and political affairs (the original view leaned toward accepting social inequality and separation, thus Harlan treated public accommodations different from public schools). But, Goodwin Liu's (author of the article) focus is on citizenship, which does not require equality as such in all these categories (though sometimes, yes) while requiring some basic floor.

Government's role in education underlines that the state has long been considered to be important here. Getting the feds involved -- even with a national university which Madison desired -- was a harder nut to crack. Liu focuses on the duty of Congress in this area, one that reflects original understanding and Harlan's discussion in his dissent to the Civil Right Cases. In passing, Liu also suggests some basic health care is necessary as well, something I go into more detail here. Such a duty suggests that Congress has the power to carry it out, using various methods including the tax/spend power, interstate commerce and Section Five of the 14A.

As I note in my health care discussion there and elsewhere, such a duty in my view also implies (basically by definition) a right. If the government has a duty to do something, even if it has some discretion (e.g., police services), we have the right to it. If the duty is somewhat open-ended, it might be harder to obtain the right by lawsuit. It might even seem a bit inchoate to really be a "right." But, I disagree. As Liu notes, the Constitution is not just about negative rights against the state. It includes some duty (right) to positive dare I say affirmative action. The recent discussion on speech outdoors (Timothy Zick) covers an example -- who but the government can truly protect our ability to publicly protest? This requires action.

Conservatives concerned about property rights can tell you about the importance of governmental action to secure such rights. Some just are a bit selective about taking this to an equitable and logical conclusion.

NYJ = Pathetic Losers

Find a way to lose, each time new and equally pathetic. This time, hold the Jags all Second Half, but like the Giants, except when it matters. Seriously. The overcharged ticket holders deserve a f-ing rebate. Especially with their blowhard HC, this sucks big time.

Saturday Quickies

Hope the MVP of the WS in 1996 is doing okay -- still remember his well worn cap and him saying "I'm just a ball player" to a question. What hell is Webb talking about? "Just as" Japanese military pilots bombing a U.S. military target during WWII?! Also, the precedent is the first WTC trials. And, my comments to this Canadian hearing.