Law, politics, pop culture, sports, and a touch of Oregon.
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We've been having the perfect weather for the M-F, 9-5 office worker these past few weeks: on the weekdays, it's been gray and drizzling, with occasional 15-minute patches of blue skies and sunshine; but on the weekends, it's been dry and sunny. I think that's perfect! Who wants to be indoors when it's bright and sunny out? Gray drizzling weather is conducive to my productivity. But then on the weekends, we can go out to the zoo, or go to parks, or go on easy family hikes.
The IOC found that a member of China's women's gymnastics team in 2000 was underage and hence ineligible, which results in the disqualification of the entire team. That team had won the bronze medal, which now goes to the United States. At the same time, it looks like the IOC has cleared China's 2008 team of similar charges.
I have to confess, I had thought that the IOC would be too feckless to do something like this. It appears that I was wrong.
So there I was, checking out the late baseball games and lamenting the awful day that my fantasy baseball team had been having.
My best player, Ryan Braun, had gone 0-4. In fact, every Milwaukee Brewer on my team went 0-4, and I had two others (Jim Edmonds and Casey McGehee). I had been expecting good things from my two Texas Rangers (Elvis Andrus and Josh Hamilton), and they went a combined 1-7. Meanwhile, the starting pitcher that I benched (Max Scherzer) had a decent night, but the one I started (Cole Hamels) got shelled. At least one of my hitters did some of the shelling (Kelly Johnson, with 2 home runs). Still, it was looking like a grim night.
But the last two innings of the Angels-Yankees game salvaged the night. First, one of my relievers (Fernando Rodney) pitched a scoreless top of the 8th inning in a tied game. Then in the bottom of the inning, my first baseman (Kendry Morales) cranked a 2 run home run to give the Angels the lead, with Rodney now as the pitcher of record. Then my closer (Brian Fuentes) came in and slammed the door. So from those two innings I got a home run, 2 RBIs and a run, a win, a save, and 2 innings of 0.00 ERA and 0.50 whip. Go Portland Drizzles!
For some reason, my wife got an official looking piece of mail the other day, titled "2010 Congressional District Survey -- OR 3rd" . . . from the Republican National Committee, of which she is not a member. The survey started off with some reasonably plausible questions designed to highlight differences between the Republicans and Democrats. Here are a couple; all responses are Yes/No/Undecided:
Do you support the Obama Administration's efforts to eliminate further testing and deployment of an intercontinental missile defense system?
Okay, it's a plausible difference, but as I understand it, missile defense systems are far beyond our engineering ability at the present, so the question might be a little deceptive. Still, I suppose you could say that we'll never succeed if we don't try, so at least it's a fair difference between the parties.
Should Republicans fight congressional Democrats' efforts to grant full unconditional amnesty to illegal immigrants?
Apart from whether it really is "full unconditional amnesty," this also seems to point out a legitimate policy difference.
However, we soon verge from seemingly plausible questions into a bizarro land of wildly distorted and hyperbolic questions. Here are a few examples:
Do you support the Democrats' efforts to create a massive new federal government bureaucracy that would be run by unionized government employees and would have complete control of your healthcare costs and choices?
Do you believe Barack Obama and Democrats in Congress have the best interests of you, you family and your community in mind?
Do you support Barack Obama's plan to get Medicare to fund a new bloated entitlement program?
Do you agree that President Obama and Democrats in Congress seem more concerned about passing their liberal pet-programs than creating jobs and getting the economy going?
Well, who's in favor of bloated entitlements and massive bureaucracies? But of course, the real issue is whether these characterizations are caricatures. . . . This survey may generate responses favorable for the Republican agenda, but that's not hard to do if your questions assume the very worst view of the opposing side's stances.
Boalt law prof Goodwin Liu was raked over the coals last week for, among other things, his testimony against then-Judge Alito during Alito's confirmation hearings for the Supreme Court. This particular statement from Liu's testimony drew a lot of attention:
Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.
When I read that paragraph, it reminded me of a couple of things -- the infamous "Robert Bork's America" diatribe delivered by the late Sen. Ted Kennedy (and which I use as a focal point in my short paper on legal blogs and the Supreme Court confirmation process), as well as the letter opposing John Roberts that was written by Dean Erwin Chemerinsky and signed by 160 lawprofs (which I criticized here). The block quote above from Liu sounds like little more than a personal attack on Alito, bereft of any demonstration of analytical shortcomings in Alito's analysis. While the idea of an all-white jury sentencing an African-American male to death for killing a white man sounds pretty bad, there's nothing in there about the context of the case to suggest that Alito was upholding or even urging on something racially malicious.
So I went and looked for the entire text of Liu's speech, which is here. This is what Liu had to say about the jury selection case:
In 2001, Judge Alito sided with the state against a black man, James Riley, convicted of killing a white man by an all-white jury in Kent County, Delaware, whose population is 20 percent black. Before trial, the prosecutor had struck all three prospective black jurors from the jury pool. Riley challenged this action as racially discriminatory under Batson v. Kentucky, which forbids prosecutors from removing potential jurors based on race. To support his claim, Riley showed that the prosecution had struck black but not white jurors who had given the same testimony at voir dire. He also showed that the prosecution had struck every prospective black juror in the three other capital murder trials in Kent County within the prior year.
Judge Alito refused to infer racial discrimination from this pattern, stating that "a careful multiple-regression analysis" would be necessary to determine whether the strikes were based on race or some other variable. To support his point, he said: "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. . . . But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?" The Third Circuit en banc disagreed with Judge Alito and upheld the Batson claim, criticizing his analogy for "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."
Thatstrikes me as quite different from the Kennedy speech or from the Chemerinsky letter, as Liu actually provides his own analytical criticism of Alito's decisionmaking process. Now, I'm not suggesting that Liu is right and that Alito is wrong, or the reverse; merely that I think criticism of Liu's attack needs to take into account the full context of his testimony. Yes, the summary of his analysis of his perceived problems with Alito's judicial decisionmaking comes across as more personal (and obnoxious) than necessary, but it's a summary of legal analysis conducted earlier.
15 years ago, Timothy McVeigh and Terry Nichols blew up a truck bomb outside the Murrah Federal Building in downtown Oklahoma City, killing almost 170 people and destroying the building.
At the time, I was nearing the end of my last year in law school and had been in communication with Judge Holloway of the Tenth Circuit about a judicial clerkship to follow my federal district court clerkship for the upcoming year. After hearing about the awful carnage in OKC, I initially wasn't even sure if the judge had survived, since I didn't know that there was a separate federal courthouse. Within a week of so, however, the judge got back in touch with me, let me know that he was uninjured (thank goodness), and offered me the clerkship, which I eventually accepted.
I moved out to Oklahoma City in August 1996, shipping a few boxes of books and CDs and packing everything else I owned into my Acura Integra.
A year after the explosion, there was still a constant reminder of McVeigh's heinous act. The federal building had been razed quickly down to its foundation, but its remains still occupied that entire block -- necessary, since the entrance to the once-shared federal building & courthouse parking lot was in the foundation. A fence encircled the federal building, with only an opening for the parking entrance. The fence was covered with signs, letters, stuffed animals, and the like, all left as monuments to the victims.
McVeigh had parked his truck on 5th Street. The Murrah Federal Building sat between 4th and 5th streets, and the federal courthouse was on the other side of 4th Street. If McVeigh had parked his truck on 4th instead, he would have destroyed the federal building and the courthouse. As it was, the federal building shielded the courthouse from most of the concussive damage in the blast. Still, my office, which looked out at the blown-up building, had glass fragments still embedded in the door.
I'm told that the replacement windows were bulletproof.
When I got to Oklahoma City, I opened a bank account with the federal credit union. This used to be located in the federal building, but was relocated to a nearby commercial office building. You have to wonder how the tellers felt about having their jobs because their predecessors had been killed in the 1995 blast. . . .
While I was clerking, Timothy McVeigh's and Terry Nichols' criminal trials were getting underway. All the Oklahoma City (W.D. Okla.) judges had recused themselves because of their proximity to the blast, so the case was assigned to Judge Matsch, who sat in Denver but had planned on trying the case in Oklahoma City. So some of the pre-trial motions were argued in the Oklahoma City federal courthouse. I got to see Michael Tigar, law professor and criminal defense lawyer extraordinaire, have to take his cowboy boots and belt off to get past the magnetometer.
Eventually, Judge Matsch moved the trial out of Oklahoma City due to concerns about jury prejudice and the like.
The verdict came down while I was still clerking: guilty. When the verdict for the penalty phase was due to be announced, one of the law clerks for Judge Henry (the other circuit judge in town) asked me what I thought the outcome would be. "Death," I said confidently. My reasoning (objective, not normative) was that if you were going to have a death penalty, who would deserve it more than McVeigh?
Indeed, it was a death sentence for him. When I left the courthouse that day, I mentioned this to the court security officers, who had not heard the news. One of them smiled broadly and told me that I'd made his day, his week even. It seemed mildly ghoulish to say that, but then, I wasn't there in 1995 to experience the terror of the day.
Since today is April 15, there's been extra focus on the fact that about half of the population pays no federal income tax. Megan McArdle has a typically clear-headed post with thoughts on the ramifications of this observation, and the Oregonian has a guest editorial largely about my colleague (and Senate candidate) Jim Huffman's views on the subject. At the risk of oversimplifying, one might say that there is a fiscally conservative argument that, even with a progressive tax system, all taxpayers should have some stake in the system, such that tax increases are felt by everyone -- "skin" as it has been called. Otherwise, the argument goes, you could have a situation where a majority of people don't pay taxes but vote to increase them on the minority who do. (Of course, the situation is more complicated, because the working poor do pay Social Security and Medicare taxes, and possibly sales taxes, though not here in Oregon, since we have no sales tax.)
What strikes me as fascinating about this argument, with which I have some sympathy, is that it is usually rejected by progressives, who point out the aforementioned other taxes and the like. However, notice the similarity between the tax "skin" argument and the real "skin" argument about why we should have a draft. It's a commonprogressive argument that the professional all-volunteer military has been bad for deliberative process regarding the waging of war, because the human costs are borne by a small subset of the population (and often thought to be less affluent).
That's the same argument, basically, as the tax one! So it's interesting to me that there isn't complete alignment of views on the two issues. (I'm sure that some people are consistent on both points.) If we think that everyone should feel the pain when taxes are increased, then everyone should feel the pain when we go to war. Whether that means a draft, or some special "cost of fighting" tax (for which members of the armed forces would be exempt), we should all understand the cost of using military force.
Yet, it seems like we have the worst of all possible outcomes: a tax system in which not everyone has a stake, and a military in which not everyone sacrifices something.
Just about everyone I know hates how George Lucas tinkered with the original "Star Wars" for the 20th anniversary re-release. Maybe the most loathed scene change is how in the original version, when Greedo confronts Han Solo, Solo shoots first; whereas in the revised version, Greedo shoots first, somehow missing Solo at point blank range (actually, it's even more preposterous, since Solo dodges a laser blast).
I came across this re-imagination that asks, what if Greedo had shot first and blasted Solo away? It turns out that the universe would be quite different . . . .
Just thinking aloud -- what impact does Justice Stevens' retirement have on the pending nomination of Boalt law prof Goodwin Liu to the 9th Circuit?
There's always the tiny possibility that President Obama will take a page out of George Bush's handbook, and revise it, by switching Liu's nomination to the Supreme Court; just as Bush switched John Roberts' nomination from Associate Justice (for O'Connor's spot) to Chief Justice (for Rehnquist's spot) after the Chief died suddenly. I doubt this will happen.
More likely, the question is how the Supreme Court nominee compares in terms of perceived ideology to Liu. The storyline that the Republicans are using is that Liu is too liberal, etc. (I'm neither endorsing nor rejecting that storyline, just observing its existence.) If Obama nominates someone perceived as moderate, say DC Circuit Judge Garland, then the Liu storyline can be expected to incorporate arguments like "we're not obstructionists, the President just needs to appoint non-ideological people like [Garland]."
So Obama could defuse this particular argument by nominating someone who's perceived to be just as, if not more, liberal than Liu. But that may help the Republicans in the fall more than it helps the Democrats, and of course, now that the Republicans have 41 votes in the Senate, they can filibuster any nominee if they're willing to pay any potential political price. The time for Obama to get through someone perceived as very liberal was for the Souter seat, not this one.