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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, August 22, 2006

Judge Posner Tries To Save Us Mere Mortals Again

And Also: A fill-in will pitch for the Yanks tonight, since Mussina is ailing. The Yanks have had a hard time finding credible replacements starters, except for last year when they found lightening in a bottle (it diffused this year) in Chacon and Small. Meanwhile, the Mets repeatedly -- mostly fairly well (at least in the short term) -- had to do it. If Glavine will have to be temporarily replaced, they will have had thirteen starters. It is impressive that they managed to get so much out of such people.

Latest, this is why people find Lieberman distasteful, tidbit:
So, for the record, the bidding looks like this. Way back in October of 2003, Lieberman said if he were the guy in the Oval Office he'd can Rummy (different than calling on Bush to do so, of course, which is more forceful, and not in keeping with the deferential war time mores we're admonished to follow). Then, after the massive debacle of Abu Ghraib, and some seven months after this interview, Lieberman sees it fit to pen an op-ed in the WSJ urging Rummy not be sacked--lest we "delight foreign and domestic opponents". And now fast-forward to these heady times rife with challenges from the likes of Ned Lamont, and it's OK again, I guess, to risk delighting our foreign foes with calls for Rummy to go. Rather on the lame side, I'm afraid.

Meanwhile, Judge Posner is at it again. I dealt with this guy before, including criticizing his stance on the 911 Commission. Online, I know someone who had to deal directly with him, and finds him distasteful, if admittedly quite skilled at what he does. She would also agree, I reckon, that he is an elitist ass a bit too often as well. Skillful assholery leaves something to be desired.

Anyway, his latest basically finds our republican institutions, including judicial review, not quite up to snuff. Judges, however, can step in to save us from ourselves ala Bush v. Gore (ruling badly reasoned, but pragmatically useful). Yeah, I find this as distasteful as the oh so passionate tories who find it appropriate to give the President limitless power, even when (push comes to shove) they admit he is breaking statutory law. Such trifles must be put aside to fight the war on terror though.

[Glenn Greenwald, linked below, cites Orin Kerr. Kerr is what might be called a reasonable conservative leaning sort with Fourth Amendment credentials. At Volokh Conspiracy, he repeatedly notes that the executive's NSA arguments are "weak," but just cannot firmly admit they are breaking the law. VC overall is a mixed bag with some good analysis, but at times has a taint of wanting to leave their options open, as if they hope for a federal judgeship or something.]

This crowd must have love the McCarthy Era ... they would have been with the "Impeach Warren" brigade. Posner believes it is unfortunate that things are not more efficiently run by "experts," though as a comment to the linked post notes, it is not like the President et. al. is one. Does he mean like the legal "experts" that have criticized Judge Taylor's ruling? Those who leave a lot to be desired, even if many think they should be relied upon. Why trust a long term sitting judge, right?

[Professional courtesy and so forth leads GG to go somewhat easy on Kerr, but Kerr's latest really comes off as rather lame, while comments at various points offer a much better understanding of rules of evidence and so forth. For instance, Kerr had to be clued in respecting the fact that the government really didn't offer a good defense, leading the judge not to have any obligation to basically assume it did and do their work for them. (Anyway, he admits that he really hasn't spent too much time on the case -- this doesn't stop criticism, which is a law professor's job, admittedly.)

Is this really so hard to imagine? Thus, in Roe v. Wade, the fact abortion prohibition might be defended on morals grounds is put aside basically because it was not raised by the government. Many other examples can be noted in which judges only cover ground raised by advocates. Elsewhere, Laurence Tribe wonders why the judge focuses on First Amendment issues. The plaintiffs clearly raised them as suggested by the group bringing the suit: academics, members of the press, rights lawyers, and so forth. I again am amazed at how slanted the coverage is on this case. So very biased, shoddily so.]

What does she know that some whiny legal "experts" don't know better? Other outdated "18th Century" institutions we can do away with: the jury, voters, and perhaps Posner. Isn't Toryism outdated by now?


Meanwhile, NY September primaries are coming up. Tasini on Clinton's understandable failure to debate him can be found here. Some mechanism should be available to put some pressure on incumbents to debate serious primary challengers. My local state senator has this stupid campaign slogan that suggests he "works harder" on campaign banners. There are many real working sorts in my district that might find fault with that. My local assemblywoman -- who got the job last election mostly by nepotism (she's a member of a local pol family) -- has did a bit to get some local events to the community.

Signs of my local congressman is much less evident, though I did see his face a couple times in the news during the last few years.