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« Fruits and vegetables | Main | Olympics: Sportsmanship »

August 17, 2004

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Kevin Jon Heller

Hmm -- I'm not sure what to say. It certainly seems that Dahlia got it wrong, but I haven't asked her what, exactly, she meant by "expended energy." (I will.) Something tells me she didn't simply make a factual error -- which is not to say we would necessarily agree with what she meant.

I will say, though, that the Curmudgeonly Clerk's comparison between Dahlia and Ann Coulter is absolutely ridiculous. Good luck finding Dahlia equivalents to choice Coulter inanities like "We should invade their countries, kill their leaders and convert them to Christianity." Or: "When contemplating college liberals, you really regret once again that John Walker is not getting the death penalty. We need to execute people like John Walker in order to physically intimidate liberals, by making them realize that they can be killed, too. Otherwise, they will turn out to be outright traitors."

Kevin Jon Heller

One more thing: I have to say that I was very impressed by Pryor's insistence that state officials obey the orders of federal courts -- a risky, if absolutely correct, opinion.

Nevertheless, I think Bush's recess appointment of Pryor -- timed so he would have two years on the court even if Bush isn't re-elected -- was reprehensible. Pryor has no business being on the 11th Circuit (Pickering is even worse), and the Democrats had every right to filibuster his appointment.

Some interesting statistics: the Democrats have blocked a measly 3.4% of Bush's judicial nominees (6 out of 177), while Republicans blocked 20% of Clinton's nominees. Indeed, the Democrats have already confirmed 30 Bush circuit-court appointments -- more than the Republicans allowed Clinton in eight years. And yet Bush complains about the Democrats' "unprecedented obstructionist tactics."

Tung Yin

Pryor has no business being on the 11th Circuit (Pickering is even worse), and the Democrats had every right to filibuster his appointment.

I'm a little confused here. Do you mean that Pryor has no business being on the 11th Circuit via recess appointment, or do you mean that Pryor deserves a vote but should not be confirmed? If the latter, I'm curious what the basis for your belief is. Based on the evidence that we have before us, which impressed even you, Pryor in fact appears to be willing to follow the law, even if he disagrees with it. He's not being nominated for the Supreme Court, where he could do something about decisions he disagrees with.

Along those lines, why exactly is it that the Democrats were right to filibuster him? Keep in mind that the recess appointment followed the filibuster, so that can't be the justification. (Along those lines, I also think that the filibusters of Miguel Estrada and Carolyn Kuhl are improper. However, I don't hold the same view about the filibuster of Charles Pickering.)

If your answer is that Pryor was appropriately filibustered because he's a right-wing extremist -- despite the previous observation that he appears to be willing to follow the law -- then do you agree that the Republicans would have been entitled to filibuster/blue slip, say, Stephen Reinhardt, Betty Fletcher, Harry Pregerson, to name a few?

The only acceptable answer I can think of is something along the lines of "tit for tat" -- that is, the Republicans improperly held up x number of Clinton's nominees, and the Democrats are entitled to hold up x as well.

And yet Bush complains about the Democrats' "unprecedented obstructionist tactics."

I don't disagree. I think the use of the filibuster on appellate level judges is unprecedented, but only because the Republicans had control of the Senate when they obstructed Clinton's nominees.

Kevin Jon Heller

I don't think he has any business being on the 11th Circuit, period. As admirable as his stand on Moore was, I don't think we can infer from it that he "appears to be willing to follow the law, even if he disagrees with it." If I was a cynic -- and of course I'm not -- I'd say that we wouldn't expect someone who clearly wanted to be appointed to the federal bench to come out in favor of defying a federal court order. That would've doomed his appointment in a heartbeat.

Even if Pryor acted out of principle, not expediency -- and I'm willing to give him the benefit of the doubt -- it's still not clear to me that he appears "to be willing to follow the law, even if he disagrees with it." Believing that state officials should follow duly-entered federal court orders is one thing; believing that, as a judge, you're bound to respect precedent you don't agree with is another. A Circuit judge may not get to overrule precedents he doesn't agree with, but he is continually faced with situations in which has to decide whether or not a certain disfavored precedent controls the outcome of the case before him. And given how few circuit decisions are reviewed for error by the Supreme Court...

In that regard, Pryor scares me. He's a man who once publicly asked God not to allow any more justices like Souter be appointed to the Court; who believes Lawrence v. Texas will lead to "prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia"; who calls the preclearance requirements of the Voting Rights Act "an affront to federalism"; who supports the display of the Ten Commandments on government property (it's important to point out that his belief in enforcing a federal court order doesn't mean that, as a circuit judge, he wouldn't hold that displaying the Commandments is legal); and who called Roe v. Wade the "the worst abomination of constitutional law in our history" -- a statement he stuck to when Sen. Charles Schumer observed that such a statement would mean that Roe was worse than Dred Scott. (Pryor pledged not to overrule Roe v. Wade, despite his view of it. But do we really believe him, given that he believes abortion is murder?)

Unless we believe that the Senate should play no role whatsoever in vetting the President's appointments, I think the Democrats had every right to use whatever legitimate parliamentary rules they had at their disposal -- the general manipulation of which is, of course, the forte of the Republicans -- to prevent Pryor from being appointed to the bench.

Elliot Fladen

Kevin,
You mentioned that Pryor has "no business being on the court" Are you justifying it by your statement that Pryor is a man "who once publicly asked God not to allow any more justices like Souter be appointed to the Court; who believes Lawrence v. Texas will lead to "prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia"; who calls the preclearance requirements of the Voting Rights Act "an affront to federalism"; who supports the display of the Ten Commandments on government property (it's important to point out that his belief in enforcing a federal court order doesn't mean that, as a circuit judge, he wouldn't hold that displaying the Commandments is legal); and who called Roe v. Wade the "the worst abomination of constitutional law in our history" -- a statement he stuck to when Sen. Charles Schumer observed that such a statement would mean that Roe was worse than Dred Scott. (Pryor pledged not to overrule Roe v. Wade, despite his view of it. But do we really believe him, given that he believes abortion is murder?)"

Because if this is the reason you feel that Pryor has no business being on the court, aren't you really saying that this is due to him having different beliefs than you? I may have missed something, though, so I expect you'll give me another reason that in my absent mindedness I passed up.

On a different subject, did Babcock ever get in touch with you? I gave her your email address and she seemed quite happy that I had run into you, even if only virtually. Let me know.

Elliot

The Curmudgeonly Clerk

Mr. Heller:

You write that:

I will say, though, that the Curmudgeonly Clerk's comparison between Dahlia and Ann Coulter is absolutely ridiculous. Good luck finding Dahlia equivalents to choice Coulter inanities like "We should invade their countries, kill their leaders and convert them to Christianity." Or: "When contemplating college liberals, you really regret once again that John Walker is not getting the death penalty. We need to execute people like John Walker in order to physically intimidate liberals, by making them realize that they can be killed, too. Otherwise, they will turn out to be outright traitors."

Although I do not have time to address this matter in much detail, allow me to suggest that the reason that you find my comparison "absolutely ridiculous" is because you don't really grasp the comparison that I am making. Your comment seems geared toward demonstrating that Lithwick and Coulter's respective worldviews are not morally equivalent. But I never said that they were. Here's what I actually said:

Personally, I have never understood what distinguishes Lithwick's legal analysis from the law-related musings of Ann Coulter, a woman with similar credentials. Coulter's over-the-top legal writing, see, e.g., Massachusett's Supreme Court Abolishes Capitalism, Democrats Don't Have the Constitution for Racial Equality and Shouting "Souter" in a Crowded Theater, could also be defended as mere caricature and hyperbole, of course—not that the folks who adore Lithwick's supposed exaggeration-for-effect would be inclined to defend Coulter's equivalent ramblings (or even concede the similarity). However, such a defense of Coulter's screeds fails to apprehend their true flaw, and the same is true concerning Lithwick's articles.

I have bolded the relevant portions, so that the comparison that I am actually drawing is perfectly apparent. I think that you will have to concede that your response really fails to address my remarks in two major ways. First, in contradistinction to my comparison, yours is not limited to Coulter's legal musings. Second, your argument is really that Lithwick has never uttered anything as morally reprehensible as Coulter. I have never contended otherwise.

Although I would not dream of asserting that my argument could not possibly be refuted, I daresay that your comment does not even begin to do so. My criticism of Lithwick in the particular post under discussion actually concerns the (mis)use of devices like hyperbole and caricature in legal analysis. I think few lawyers would dispute its basic premises. In summary, I find your comment to be "absolutely ridiculous."

Tung Yin

Kevin, some of your opposition to Pryor strikes me as potentially unfair to the religiously devout and may in effect institute an irreligiousness test for federal judges. But in any event, this particular sentence makes me wonder:

A Circuit judge may not get to overrule precedents he doesn't agree with, but he is continually faced with situations in which has to decide whether or not a certain disfavored precedent controls the outcome of the case before him.

Of course, that's true, but isn't that the essence of judging? The problem with this assertion is that it blurs the line between very specific and very general applications of precedent.

Just to take an example, suppose a circuit judge is confronted with an abortion law that prohibits "D&X" (aka partial birth abortions) except in cases of rape or incest -- but not otherwise for the woman's health. I would think that most reasonable people would agree that this statute falls within Stenberg v. Carhart, 530 U.S. 914 (2000) (striking down statute banning D&X for not having an exception to preserve the mother's health), and would therefore be struck down. If what you are suggesting is that you suspect that Pryor would uphold this statute through some flimsy distinguishing of Stenberg, well, that's really the same as saying that you think he would disobey controlling precedent.

On the other hand, suppose that -- as happened -- someone argues for the right to physician-assisted suicide, relying on Planned Parenthood v. Casey -- the argument being that both cases are about autonomy over one's body. Does a judge who "decides" that Casey is not controlling precedent here run afoul of your concerns?

Because I don't think it's reasonable to expect that the party not in control of the White House gets to impose its views on how the latter scenario should be played out.

And yes, I've already agreed that what was done to many of Clinton's nominees was also shameful and outrageous.

Kevin Jon Heller

I'm sorry, am I missing something? Coulter's first comment clearly supports wholesale violation of the UN Charter's prescription on the unilateral use of force, as well as the Universal Declaration of Human Rights's guarantee of religious freedom. Her second comment criticizes a sentence in a particular criminal case and advocates using terroristic threats -- if not actual violence -- against people who hold different views than her. Those aren't "law-related musings"? How about this one? "My only regret with Timothy McVeigh is he did not go to the New York Times Building." So murdering journalists with whom she doesn't agree is legally acceptable?


Now, you can respond that Coulter wasn't REALLY thinking about the law when she made those remarks, just being hyberbolic and expressing her "worldview." You're probably right about that, as far as her intent goes. Like it or not, though, her comments directly implicate the law in innumerable ways. And it is precisely the fact that Coulter spouts her gibberish without regard to ANY of the legal implications of what she is saying that makes comparison of her to Dahlia "absolutely ridiculous." Can you show me comparable statements of Dahlia's, ones where she comments on the law, however indirectly, without any awareness of or concern for what she is saying?

(For that matter, can you even show me specifically legal statements of Dahlia's that are so beyond the pale that it is impossible for "reasonable minds to disagree" about them? I read your very interesting blog entry on her "no means no" statement, and although you make some good points -- some of which I agree with -- you certainly didn't show that her statement represented "hyperbole" and "cariacture.")

You can disagree with Dahlia all you want, Mr. Curmudgeonly Clerk, but to compare her legal commentary to Ann Coulter's is, in fact, absolutely ridiculous. By all means, respond by trying to separate Coulter's "real" legal analysis from her insane quasi-legal ramblings. But doesn't the fact that you have to do simply prove my point?

The Curmudgeonly Clerk

Mr. Heller:

Your retort is, in effect, that Coulter's non-legal political columns (as distinguished from those in which she expressly addresses law-related topics) are, in fact legal in nature (and hence comparable with Lithwick's strictly law-related columns for purposes of comparing the two authors) on the basis that Coulter's political statements might be construed as having some legal implication. Any number of discussions might have legal implications, but that does not render them discussions of or about the law. Any discussion of abortion might be pregnant with legal implications, but that does not render every meditation on the subject a legal discourse. A writer might choose to discuss it solely in terms of morality or demographics, for example.

Again, my post is about the (mis)use of hyperbole and caricature in legal writing (i.e., writing on or about the law). It is not about the use of those devices in any piece of writing that might have some legal implication that remains wholly unaddressed by the author. Hence, the fact that you can imagine some unspoken legal implication in any given column is irrelevant. When you compare Coulter's non-legal writing, which is comprised of overt and deliberate political diatribe, with Lithwick's legal writing, you are simply comparing apples and oranges. It's just not a useful comparison if the topic is the use of hyperbole and caricature in legal writing. Only the columns in which Coulter sets out to do what Lithwick does (i.e., expressly address a legal topic) are meaningful for comparing how each approaches legal writing. Ultimately, I think that you are trying to debate a position that I am not advocating.

Tung Yin

If the Clerk's argument can be (over)simplified to "sometimes Lithwick goes overboard, perhaps not as much as Coulter, but in the same way," then I think he's right. The Clerk's post (linked above) goes to one of Lithwick's Slate columns, where she writes:

Scalia asks if it really serves the greater good to warn criminals that "if you got an attorney, he'd find some gimmick. ... You have a right to know that you have the right to get off, even if you're guilty," adding, "We want people to admit they're guilty."

But Justice Scalia may want even the innocent to do that.

(I haven't quoted selectively; in the next paragraph, she goes on to talk about Justice Breyer's views of the case. There's no explanation of what she meant about how Scalia wants the innocent to plead guilty.)

As the Clerk notes, this isn't morally equivalent to anything that Ann Coulter writes, but in tone and technique, it's similar. It takes a fairly indefensible position for the purpose of mocking or ridiculing the target. Does Lithwick really think that Scalia wants the innocent to plead guilty? Obviously not, so the statement makes sense only as a sort of "Scalia is so right-wing" throwaway line. It's that technique that the Clerk is complaining about that appears to be common to Lithwick and Coulter.

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