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David Gilmour AOL session Dave - with Rick Wright, Jon Carin and one of my bass heroes, Guy Pratt, in tow - plays an AOL session. Comfortably Numb is a bit of a train wreck, but the rest is pretty good stuff; of particular note, Dave throws out a marvellous classical guitar solo at the end of High Hopes (all my reservations about post-Waters Floyd are routinely suspended for purposes of that song), and Guy gets in some tasty licks during Take a Breath. Scalia and recusal: a clerk weighs inPrawfsblawg links to a Law.com op/ed - B. Fitzpatrick, Scalia's Mistake - by one of Our Hero's OT '01 clerks. The core of Fitzpatrick's argument is: Those who support the current code of judicial conduct typically worry that judges who speak publicly on pending cases do not have (or at least do not appear to have) an open mind on the issues they speak about. But this is not true. Simply because a judge has preconceived views, does not mean the judge cannot change his or her mind. I recall many instances when Scalia entered a case with certain expectations as to how he would rule, only to change his mind once he read the legal arguments submitted by the parties. In any event, even if some judges are close minded, they are no less close minded when they keep their views privately to themselves.Prawfsblawg's Dan Markel wonders "Is Fitzie right? Open minds want to know." Without meaning to say "I told you so," regular readers will conclude that Fitzie is not only absolutely right, but he is late to the party: I wrote a post three weeks ago, Scalia, recusal and Hamdan, 3/30/06, concluding that "Scalia should not have recused himself in Newdow - that is, not only didn't have to, but affirmatively should not have - and he should not recuse himself in Hamdan [either]." One thing that I did not know that Fitzpatrick's comments bring to light is something I didn't know: Justice Breyer's dissents in Apprendi and its successors should be read more closely, since apparently "it was widely known that wrote those very guidelines when he worked in the Senate many years ago." Somehow this escaped my notice, but it will be interesting to go back and re-read those opinions now. Ninth circus strikes againOur caped - or rather, robed - crusaders are at it again, reports Volokh; the Ninth Circuit concluding in Harper v. Poway Unified Sch. Dist. that the First Amendment does not apply to speech of which Judge Reinhardt disapproves. Justice O'Connor: senior status or retired?The Federal Judicial Conference lists Justice O'Connor as being on senior status - is this correct? Any justice or judge of the United States . . . may retire from the office after attaining the age and meeting the service requirements . . . and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.But §371(b) says that: Any justice or judge of the United States . . . may retain the office but retire from regular active service.The statute, too, treats retirement from the bench and retirement into senior status as being two separate and distinct choices a Judge can make having attained a certain age. Moreover, §371(e)(1) sets out a series of work requirements for a judge (or, in this case, justice) on senior status; they must meet at least one of a set of criteria. The waters are rather muddied by the fact that a year has not yet passed since her retirement, but has O'Connor "carried in the preceding calendar year a caseload involving courtroom participation which is equal to or greater than the amount of work involving courtroom participation which an average judge in active service would perform in three months," per §371(e)(1)(a)? Has O'Connor undertaken "substantial judicial duties not involving courtroom participation . . . including settlement efforts, motion decisions, writing opinions in cases that have not been orally argued, and administrative duties for the court to which the justice or judge is assigned," per §371(e)(1)(b)? Has O'Connor "performed substantial administrative duties directly related to the operation of the courts . . . [or similar] duties for a Federal or State governmental entity," per §371(e)(1)(d)? And if she has not done any of the foregoing, is that merely "because of a temporary or permanent disability" on her part, per §371(e)(1)(e)? These criteria all assume an ongoing involvement by a Judge on senior status with the operation of the court; senior status is not retirement in the sense of leaving the court, it is a diminshed workload. If the glove does not fit, surely, you must acquit. It seems to me that Justice O'Connor retired, rather than entering senior status, had no intention of the latter, and in any event, is not currently meeting the statutory criteria for a judge on senior status. Update, 1/16/2007: Justice O'Connor's assignment to a panel of the Ninth Circuit in J & G Sales v. Truscott, "sitting by designation pursuant to 28 U.S.C. § 294(a)," seems to support my theory. How to cite blogsHaving just said that it would be light... (all web resources last visited __/__/__) Rule 3. (a) Citing a blog post should be done in a manner harmonious to the style in which newspaper articles are cited in your chosen poison. (b) Rule 3(a) notwithstanding, the citation form should include, as a minimum: the author, the post title, where it was posted, when, and the URL. (c) The best-practise form is: [author],[post title]at[BLOG TITLE]([url]),[date], as in the following examples Rule 4. Any citation system for blogs must provide a framework for citing comments as distinct from posts, as the Bluebook system fails to do. In my system, comments are also citable, as in the following examples, parallel to the list in rule 3(c):
Rule 5. When comments are written pseudonomymously, usernames should be enquoted, as in the examples above. If Rule 1 is to be discarded, this rule will govern. I admit that I have not always been scrupulous in using this form (see, e.g. Compromising on Abortion, 2/8/06 at nn.1-2, but see I think they’re turning Portuguese: The stealthy emasculation of the royal prerogative and the expansion of executive power in Britain, at n.1), but I shall henceforth be. Are there any glaring shortcomings in this system? I'll also take this opportunity to pitch a bit of a bitchfit about the alternatives. While my proposed Rule 3 is perfectly compatible with the Maroonbook's rule 4.4(a), I think the approach counselled by both the Bluebook and the CMS to citing blogs simply isn't going to wash. When I write blog posts with footnotes, or the occaisional PDFcast, I decline to follow in whole either the bluebook or the Chicago Manual of Style, as a general matter; I think both are excessively enamoured of their own self-importance, at the expense of providing a useful and clear style. I generally incline towards the latter, but even here there are problems, typified by the CMS-based Maroonbook's rule 2.1(a), an example of the worst kind of self-indulgent tripe (arbitrarily decreeing the omission of abbreviating periods from citations, seemingly for no purpose other than to have "a distinctive feature of the Maroonbook," as it puts it): Periods are generally inserted in abbreviations in text, and in footnote text . . . [but] should be omitted from abbreviations in citations. This omission is a distinctive feature of the Maroonbook. [Refer in the main text] to the United States Court of Appeals for the District of Columbia as the “D.C. Circuit,” not the “DC Circuit” or “D C Circuit” . . . [but] [i]n the “court of decision” parenthetical following a case name, however, “DC Cir” is the proper abbreviationI think it's fine to have style guides, and I think that the CMS and the maroonbook have some very strong features (which is why I tend to follow it, in the main); I agree with rule 3.4(c) that it is functionally redundant to include the "J." or "C.J." when referring to court opinions, which is why I have used it for some time (see, e.g., Turning Portuguese, supra, at nn.9-10; The Supremacy Claus and Bad Precedent, 1/10/2006, at n.23). Given the choice, I'll stick with the CMS, but fortunately, I have to be bound by the arbitrary dictates of neither, at this time. Light bloggingBlogging is probably going to be light in the next few weeks, depending to some extent on prevailing weather in Indiana; we have much work to do in the garden, and I have a couple of off-blog writing projects to finish up. As before, matters arising will recieve full attention. ;) McCain in California; Topinka in IllinoisOne of my favorite columnists, George F. Will, has a couple of related columnists, one of which relays the suggestion that nominating McCain in 2008 might put California back in play (that is, even if it can't be won, merely forcing the Democrats to spend time, money or effort to win it detracts from their effort on other fronts, which helps in close states); the other discusses the possibility of winning back the Illinois governorship, something that I think would be great for my next-door-neighbour state. It does make you wonder - as I expect the column is intended to - if perhaps Illinois could be put back in play at the Presidential level. It's not an immigration problem as much as it's an assimilation problem.Two interesting articles - Does America Have an Assimilation Problem? (cf. The Unmaking of Americans: Multiculturalism and the Assimilation Ethic, by John J. Miller) and What Your Senators Hope You Don’t Know About Immigration (try to ignore the yawnsome rhetoric in the latter, it actually makes some good points). I find myself extremely surprised......to tentatively agree with Justice Ginsburg. I think her dissent from denial of cert in Padilla at gives pursuasive reasons to - at the very least - hear the case; after fuller briefing and argument, if it turns out that the mootness exceptions raised in Justice Ginsburg's dissent fail to suffice, the case can always be DIG'd. *. A very different proposition, mind you, to the black-and-white question of non-Americans captured in non-America, or the decidedly less black-and-white question of American citizens captured on the field of battle. As Justice Scalia noted in Hamdi: Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, §9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. Scalia and Hamdan, reduxDaveed Gartenstein-Ross had a Weekly Standard article I missed, Free to Dissent: Why Justice Scalia need not recuse himself from the Hamdan case, 03/27/06, which reached the same conclusion regarding Scalia's obligation (or rather, lack thereof) to recuse himself in Hamdan as did I (see Scalia, recusal and Hamdan, 3/30/06). Having touched - as all these commentaries inevitably will - on Elk Grove v. Newdow, Daveed concludes that there was nothing in Our Hero's Freiburg remarks that had not already been said in his Rasul and Hamdi opinions *, "[a]nd that fact makes all the difference." *. See Hamdi v. Rumsfeld, 4/12/05, for my view on the latter case; accord Detention of citizens in wartime, 9/12/05 (arguing that the Fourth Circuit's opinion in Padilla v. Hanft should be reversed per Justice Scalia's Hamdi dissent). Post facto: A former Scalia clerk is always welcome at this party, even when arriving late. See Scalia and recusal: a clerk weighs in, 4/25/2006. Cruel and unusual?Benjamin Wittes has an essay, What Is "Cruel and Unusual"? in Policy Review, online here. Hat tip: Milwaukee Federalists. [In Atkins and Roper], the court has struck down capital punishment for the mentally retarded and for juvenile offenders, both practices it upheld as recently as 1989. In both cases . . . the court was announcing [not] "that this Court’s decision 15 years ago was wrong, but that the Constitution has changed." One doesn’t have to share Scalia’s approach to the amendment to conclude, with him, that this will not do. The challenged practices, after all, had not changed. The court admitted no bottom-line error. In neither case could it point to more than incremental evolution in political attitudes toward these controversial punishments. A few more state legislatures had banned the practices and public opinion had moved somewhat. Foreign governments disapproved. Medical and psychological advances had taken place. Somehow, out of these transient developments, a supposed consensus is born . . . [Yet] [t]he court has never bothered to say how many states need to turn away from a practice before it becomes off-limits to other states. Nor, more broadly, has it ever specified what weight it grants to any particular factor in assessing whether a consensus has developed against a particular punishment. Nor does it even explain why it relies on certain factors while ignoring others in the first place. If American sources of law don’t by themselves form a consensus, the court feels free to consult foreign practice. It relies on scientific studies that support its position but leaves others out without comment. In the end, it’s hard to resist Scalia’s devastating conclusion that the court’s methodological approach “is to look over the heads of the crowd and pick out its friends.”What I think bothers Nino about it is the undemocratic nature of the thing. Why should five unelected lawyers be permitted to forever foreclose certain penological options to legislatures, based on either prevailing trends in penology or society's attitudes theretowards - or, worse yet, what those five unelected lawyers say are prevailing trends in penology or society's attitudes theretowards, by which they mean their opinion? Scalia's view of the Eighth Amendment, characterized here as “forbid[ding] [only] those [punishments] that are politically unthinkable anyway,” would essentially leave all but the most extreme penology decisions to the discretion of popularly-elected legislatures. Why is that undesirable? It does, at least, have the virtue of being compatible with the form of government enshrined in the Constitution. In any event, despite these problems (and a few others), I have to admit that Wittes' analysis is very attractive and raises some questions that can't easily be escaped. For example, he raises the undeniably fair point: why must an originalist declare that the meaning of "cruel and unusual" in the Eighth Amendment is frozen in time as per its understanding in 1791 (or 1868 for the states) while most originalists do not insist on interpreting the meaning of "arms" in the Second Amendment or "reasonable" in the Fourth Amendment (or, for that matter, "excessive", as in excessive bail, also in the Eighth Amendment) by the standards of 1791 / 1868? Why, that is, can we not say of cruel and unusual punishment what the Chief once said of probable cause, that it is a "fluid concept[] that take[s] [its] substantive content from the particular contexts in which the standards are being assessed," Ornelas v. United States, 517 U.S. 690, 696 (1996)? I have no answer to this point. Unlike Our Hero (see Harmelin v. Michigan - reading the syllabus for which, incidentally, is like viewing a still life of said train wreck), I do not fully accept that the original meaning of the Eighth Amendment does not (or rather, can not) include an element of proportionality, and a theory which might bring proportionality into Eighth Amendment jurisprudence in a principled and coherent way (see discussion infra) is welcome. Moreover, Wittes avoids the errors that would immediately put me on guard against his analysis. He is careful to insist that a punishment must meet the criterion that it is both cruel AND unusual, rather than being one or the other. Anything less would essentially put a ticking time bomb under all punishments: by definition, all new punishments are unusual, and the problem with having an evolving, amorphous and subjective standard like "cruel" or "needless" is that sooner or later, someone will decide that all existing punishments are cruel. In sum, I'm not sure that Wittes has got the right answer, but he is asking the right questions. Scalia's approach is good because (inter alia) it relies on clear rules, neutral standards and objectively determinable facts. Its primary defect, Wittes says, is that it simply doesn't match up to the original understanding of the Eighth Amendment's breadth and scope - or, at very least, it simply doesn't match up to a reasonable understanding of the same tempered by a century of stare decisis. These are fair and reasonable arguments, and my concerns for where it goes wrong essentially turn on (a) the extent to which Wittes fails to support the proposition with founding era evidence, and (b) that it fails to articulate the sort of clear rules, neutral standards and objectively determinable criteria which make Scalia's position so much more desirable than the alternative. What Wittes proposes is vastly superior to the mushy "evolving standards of decency" test, but it is not - not yet, at any rate - an improvement on Scalia's view. What Is "Cruel and Unusual"? lays out the beginning of what could be a strong attempt to get the Eighth Amendment back on the rails, but doesn’t quite get the firebox lit again. To conclude with a note on which we undoubtedly agree, I would second Wittes' point that "[w]hat we can insist on prospectively . . . is that the two terms [cruel and unusual] be defined in some way as to offer some predictability as to which punishments will be upheld and which struck down and to provide some doctrinal constraint on judicial policymaking and discretion." |
    
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