Obama's Fault Or Not?

Matt Taibbi's polemic article about the selection of economic advisors and the general economic policy that has come about has spawned a large debate in the blogosphere. The core of the attacks against Taibi are not the factual charges which seem to be largely a distraction. Instead the substantive critique is that the executive branch advisors arent the problem and that removing them and replacing them with the most progressive ones you could find wouldnt change a thing. This critique is based on the legislature central view of policy. Essentially these critics of Taibi are saying that until lieberman, nelson, bayh are gone there simply cant be better, more progressive policy.

Chief among the substantive critics is Ezra Klein.

Simple as it may be, it manages to be false both conceptually and specifically. The financial system made Michael Froman rich, and Rubin, too, but neither is working on financial regulation. You can argue that Larry Summers skimmed a few million off the top, but he's spent a lot of time in academia and government for someone so concerned with money. But Orszag? Furman? Geithner? Christina Romer? They may represent intellectual capture, but that's not the same thing as what Taibbi is implying.

Worse than being unfair, though, it actively misses the point. What unites not only Obama's economic team, but his whole White House, is not its emphasis on rich people. It's the emphasis on people accustomed to dealing with Congress. You've got a former Treasury secretary, CBO director, DCCC chairman, chief of staff to the Senate majority leader, chief of staff to the chairman of the Energy and Commerce Committee, chief of staff to the chairman of the Senate Finance Committee, and on it goes. It's rather difficult to say what these people do and don't believe, as their whole world is finding 218 in the House and 60 in the Senate, and every word, action and policy brief is squarely aimed at that goal.

That leaves two questions worth asking about them: First, are they more or less liberal than the 218th most liberal congressman and the 60th most liberal senator? Second, are they good at their jobs? That is to say, are they good at bringing 218 congressmen and 60 senators into line behind reasonably good policy?

Ezra's critique is picked up by Yglesias. Klein's point is clear. Policy and law is made by congress. Until Congress is more progressive more progressive legislation will not pass. The blame heaped upon Obama is misplaced according to Klein.

To some extent though Klein and Taibbi are talking past each other. Taibbi is blasting Obama because the people he chooses represent the type of policy that will not only be portrayed as feasible but also as desirable. These people tell Obama not only what the most likely alternative is but also what the best and worst alternatives are. Any negotiation begins with these in mind. Formulating a strategy for negotiation with congress involves formulating an opening position based on the most desirable outcome and the most likely. By picking the people he does the President is helping to decide where he starts and where he wants to go. That doesnt involve congress at all.

Most people criticizing Obama take the route Taibi does. He starts from the wrong position with the wrong end goal in mind. That would be Obama's fault. But what about Klein's assertion that policy will only be as good as Lieberman et al will allow?

This is true. As long as the massive procedural hurdles of the senate remain in place those people matter. a lot. The criticism of obama has been that he doesnt play the game with these people properly. their arent any sticks. Ezra would say that the sticks dont exist except maybe for lieberman who has a nice chairmanship that might get accidentally dead. shame if that were to happen. Obama has tended to try very hard to work with and massage congress people. he seems to be very nice to them, just as he is nice to the bankers. he urges them to make credit freer. thats nice. Obama could certainly be harsher and more demanding in his rhetoric or proposals. that risks a greater loss but also greater gain.

Ultimately Obama is only in control of how he chooses to try and coerce/convince nelson, bayh, and crew to go along with his policies. SO far he hasnt really called them out or really attacked their intransigence. He probably doesnt believe that this will work. The point is that he does not try. Its not that he hasnt succeeded, failing would suck but the biggest problem is that we havent tried according to most people unhappy with the president. Ezra is right that congress is ultimately in control of what gets passed but Taibbi is also correct that Obama's strategy doesnt seem to be the most effective.

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Getting Out of Afghanistan and The Defense Problem

With our President prepared to send 40,000 more soldiers into Afghanistan a serious discussion has arisen about the future of our commitment there. I have written before about the time and material required for nation building. Back then i was much more willing to devote what was needed to the long struggle of fixing Afghanistan. The nature of the mission has changed and so has my support for sending more resources, more men and women, to that country. Unfortunately the United States has a real problem with our orientation towards the military.

Matt Yglesias posted today on the personnel expenditures for the US armed forces. By his estimates it came to about $300 Billion. The fact that people related expenses make up about 50% of the money that the United States spends on defense has implications related not only to the idea of balancing the budget but our foriegn policy itself. Has Yglesias notes

In policy terms, Arkedis makes the point that this means you can’t make any really large reductions in the defense budget purely by going after the interests of the contractors who make weapons systems. The soldiers themselves are the military’s most important weapons, and also the most expensive ones. And the only way to reduce these costs is to either have fewer soldiers, or else to over time accept a lower quality of recruits. And that in turn would mean giving them either fewer missions, less ambitious missions, or some combination of the two.

This is worth thinking about not only in terms of Afghanistan, but also in broader strategic terms. Over time as technology advances and wages and health care costs rise, most organizations seek to do their work in a less labor-intensive manner. But the rise of counterinsurgency doctrine in the military implies a shift in the direction of a more labor-intensive strategic concept. There are some good reasons for this turn, but it has a lot of underdiscussed and underdebated budgetary implications.

The cost of supporting the soldiers in the military is going to be higher as the congress appropriates more money for mental health services and greater veterans benefits. President Obama has discussed increasing the size of the military. From all appearances our military spending is going to increase in the future and not decrease. A shift to counter insurgency wars would guarantee the increase.

The United States seems to have locked itself into a position where we depend on our military strength. Much our power seems to revolve around the strength of our military and our ability to provide a defense guarantee to our allies. This is a powerful if inflexible tool. This means that our allies are free to defy us and our interests without a real fear that we will pull back our defense umbrella on anything but the most essential of issues. Our military has assumed a position of paramount importance.

At the same time some in the senate, such as Evan Bayh, have become deficit obsessed. They are pushing for a commission that would reduce the structural deficit. What this ultimately is is a means of gutting any liberal agenda and gutting social security and Medicare. There is no chance that at this point in time with a shift towards counter insurgency, increased commitment to Afghanistan, the central importance of American military power, and the structure of military expenses that the Congress would touch defense expenditures.

President Obama's decision to escalate in Afghanistan rather than wind down the adventure means that the chances for eliminating the deficit with anything other than cuts in the social safety net are far fetched. It increases the role of the military and foreign adventure in American society. Given the economic problems that we currently suffer from it makes much more sense to pull back from foriegn adventures to fix our domestic problems. This is not what we are doing.

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Institutional Power and Congressional Sheep

As a general rule members of Congress wish to be reelected. That is not too shocking of a proposition because being a member of Congress is a prestigious job with good benefits. As a result of this interest congress people, senators especially, like to do things that will keep them in office. One of the things that helps keep someone in Congress is taking credit while avoiding responsibility. By taking this approach Congress has managed to alter the balance of power vis-a-vis the Presidency. A case in point is the filibuster.

Reading Ezra Klein's post on Congress' voice should make it clear that the system of government in our country could use some reform.

More to the point, it's important for Congress to begin thinking that way again. For the filibuster to end, Congress is going to have to rediscover its institutional voice. Democrats hate the filibuster when they're in power, and Republicans loathe it when they're in power, but it won't end until Congress decides it an enemy of Congress, rather than of whichever party happens to be in the majority at that moment.

People occasionally let slip that the filibuster is one of the checks and balances written into the Constitution. It isn't, of course. And its centrality to the process is a symptom of the failure of the checks and balances envisioned in our founding document. Congress was supposed to be stronger than the executive branch, and in competition with it. As such, it was considered very important, and very obvious, that Congress would work diligently to maximize its own power and authority. Congress would never permit some loophole to render it an ineffective branch, dependent entirely on rare supermajorities and presidential momentum to pass legislation.

But in recent years, American politics has become entirely about the president. Congressional elections are referendums on the president. Republicans lost in 2006 because Bush was unpopular, not because Harry Reid was beloved. Democrats understand that their fortunes are lashed to Obama's success, and Republicans have been clear that their return to power runs through his failure. Congress defines itself in relation to the president. That makes the filibuster very important to whichever party isn't in charge of the White House. It means the minority party has a continual stake in Congress not really working, because that means the president can't really succeed.

Klein has a good point and is mostly correct. Where i think he misses the mark is that the President has been the center of American politics for much more than the recent past. FDR, Teddy Roosevelt, Lincoln were all strong executives who acted in the center of American Political life.

What is clear is that President's demand power. Both Democratic and Republican presidents seek to expand the power of the executive office. They cede power only after bloody political struggle. The reason for this is that Presidents can hardly avoid responsibility in the way that Congress manages to do. It is easy to identify who holds the presidency. Blame is easy to apportion to him when voters feel he deserves it. Under these circumstances what person would not want to gather the most control over his destiny as possible? Not to mention that the type of person who seeks the Presidency is one interested in power. There are no Cincinnatuses in modern American politics.

In contrast Congress appears to be more than happy to cede power to those willing to take the responsibility. Avoid making decisions, avoid pissing people off too much, get reelected. Nate Silver makes exactly this point in his post advising Blanche Lincoln. Silver's message is that the best advice is to stay out of the spotlight. Avoid being the one responsible and improve your chances of reelection. Massive gridlock helps individual legislators avoid taking the blame. The approve/disapprove numbers of your representative are better than congress as a whole. It is not there fault its everybody else. The filibuster provides an excuse for Democrats to blame Republican's and continue the policy of not rocking the boat.

As Klein points out the modern Congress is not in opposition to the President. The party system in our country means that there are incentives for the Congress to make the President look good. Those in the same party as the President are rewarded for going with the President. As an institution, Congress has decided that it is generally better to be the sheep than the shepherd. If enough members of Congress wanted it bad enough they could break any filibuster. The problem is that that would be...hard. Also, time consuming.

There's two pieces. One is the time of the chamber. They have other things to do. The modern Senate has more staff, deals with more interest groups. There's more legislation. More appropriations. The modern senator spends 1 percent of his or her time on the Senate floor. They have to take pictures with constituents. They have to fundraise and meet with constituency groups and lobbyists and deal with staff. To actually have a live filibuster would mean they have to give up all the other business.

And as individuals, they have other things to do. Air travel has opened up. In 2009, if you are the senator from Montana, it's perfectly reasonable for you to go home on the weekend and campaign for reelection. That wasn't possible in 1940. You came to Washington to do your work and you stayed until it was done. Now air travel has made it possible for you to fly away for the weekend. That makes your time more valuable.

They have better things to do. If they wanted it bad enough 50 democrats could break any filibuster. It would be an epic war of attrition and a media feeding frenzy for the ages.

The best example of this is the 1964 Civil Rights Act. It was the longest debate in the Senate's history. But the majority wasn't trying to wait out the Southerners. Instead, they just let them talk, and would send their guys down, and argue against them when they would, for instance, deny that lynchings happen in the South. This helped public opinion turn.

The benefit to the majority can be that public attention focuses. They know the bill is there and they know the Republicans are blocking it. That becomes the basis for news coverage. When will the bill be done? What's going on today? In that sense, you can win. The point is not that you exhaust the Republicans, but that you embarrass them. X number of people died today. I hope that whatever you had to say was more important.

And time can work on your side. In 1913, the second item on Woodrow Wilson's agenda was what we now know of as the Federal Reserve Act. The bill came up December 1st., and the Democrats said we'll stay here till the bill passes. If that means we don't get a Christmas break, we don't get a Christmas break. That focused people's attention.

Imagine the responsibility and blame that could be fed out here. Senators would have to really step up. They do not want to do that. They have excuses built into the system and no interest in expanding their power against the presidency and the judiciary.

The power of the presidency is going to continue to grow as will the power of the judiciary, the fed and other independent groups who are able to absolve Congress from responsibility for hard or unpopular decisions.

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Going Down Fighting

Some times political incumbents lose. Admittedly it doesnt happen often. When it does happen though you generally get a good picture ahead of time. The best evidence is Blanche Lincoln of Arkansas. She is, in all likelihood, going to lose. What then is she supposed to do on big votes like health care insurance reform? Her actions represent a general failing on behalf of losing politicians to do the right thing.

Lincoln is especially important in the mad house that is the senate. It now takes 60 votes for anything to move forward due to GOP threatened filibuster. If she was solidly committed to not supporting any GOP filibuster then maybe the GOP wouldnt threaten them as often. Thats a different topic though. The main point is that instead of doing whats right and letting the chips fall where they may Lincoln is running scared. From TPM,

As a rule, Sen. Blanche Lincoln (D-AR) may not be as ideological as Nelson is. But she's got a problem on her hands right now that Nelson doesn't. She's an unpopular senator in a conservative state and she's up for re-election next year. Unlike Nelson (or Joe Lieberman, who we'll get to momentarily) securing Lincoln's procedural vote is a nuts-and-bolts political problem. How do you get her into a position where she (and the Democratic party) feels her seat isn't particularly imperiled by votes for health care reform. Last week, she met with both Reid and President Obama. Those conversations will surely continue.

The problem is that her seat is in major trouble no matter what she does. Her seat is not in trouble because of health care reform it is in trouble because Arkansas is a very conservative state full of Republicans and right leaning indy's. Her seat is also in trouble because the voters most likely to vote for her are not particularly impressed. PPP tells all,

Among all Democrats her approval is a relatively weak 62%. But among conservative Democrats it's just 45%. While liberal unrest about her actions in Washington has perhaps received more attention her approval with them is 24 points higher, at 69%. Matched against the Republicans Lincoln averages just a 57-25 advantage with the conservative wing of her party, a standing she'll probably need to improve on before next November.

Although the dissatisfaction of liberals within her party may not be as a big of a numerical concern for Lincoln as the conservatives, there are some issues there as well. Her approval rating among voters who think that Obama is doing a good job is just 63% with 21% disapproving and 16% unsure. That failure to win over many of Obama's proponents is an indication that the President's unpopularity in the state can't be held completely responsible for Lincoln's difficulties. She does nevertheless win nearly 80% in the head to heads with the Republicans because she's clearly a more acceptable choice for those voters than the alternative but then the concern in an off year election becomes whether those folks even show up if they're not enthusiastic about casting a vote for Lincoln.

If Lincoln has perhaps seemed indecisive at times you can see why when she has it coming at her from both ends of her party.

You know what does poll well? The Public Option. in that poll we find that

73% of all voters think that private health insurance companies care more about profit than about the health of the patients that they cover. Among Democrats and Independents, that number skyrockets to 86% and 72% respectively.

You know what that sounds like? A winning issue. It sounds like something Senator Lincoln would like to use again and again as she champions health care reform. Yet she has stayed on the fence and concerned that her vote may cost her her job. Yet, isnt reforming health care the right thing to do. Is this something that might actually be worth doing if your going to lose? Yglesis adds,

But perhaps the most convincing thing you could say would be the argument from legacy. A lot of members of congress spent 1993 and ‘94 spiking the Clinton legislative agenda and then went down to defeat in November 1994 anyway. Wouldn’t it make more sense to turn the 111th Congress into a substantive success, hope you can persuade the voters that these are good ideas, and if you fail at least manage to have gone down fighting accomplishing something important?

Its the Deeds derangement syndrome. running away from substantive and good policy out of mistaken belief that people want nothing, i.e. conservatives policy, done. This isnt the case. The polling makes clear that voters find Lincoln ineffective. The point of holding public office is to put in to practice good policy. if your not going to do that what does it matter whether your in the seat or not? If you think your going to lose go down fighting and not dithering.

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Secret Intellectual Property Treaty is Very Bad

You probably are not aware of the intellectual property treaty being negotiated in Seoul South Korea. Its called the Anti-Counterfeiting Trade Agreement. The reason that you may not have heard of it is that its supposed to be secret. Why? National Security concerns of course. Thats right, a treaty that affects millions is being negotiated in secret apparently without the input of views that might be hostile to the draconian enforcement of copyright law.

Im not an IP lawyer nor a computer science expert but there are a number of issues that bother me about this. A few of the leaked provisions,

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.

2. A requirement to establish third-party liability for copyright infringement.

3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs). For example, in order for ISPs to qualify for a safe harbour, they would be required establish policies to deter unauthorized storage and transmission of IP infringing content. Provisions are modeled under the U.S.-Korea Free Trade Agreement, namely Article 18.10.30. They include policies to terminate subscribers in appropriate circumstances. Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.

4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements. For example, the U.S.-South Korea free trade agreement specifies the permitted exceptions to anti-circumvention rules. These follow the DMCA model (reverse engineering, computer testing, privacy, etc.) and do not include a fair use/fair dealing exception. Moreover, the free trade agreement clauses also include a requirement to ban the distribution of circumvention devices. The current draft does not include any obligation to ensure interoperability of DRM.

5. Rights Management provisions, also modeled on U.S. free trade treaty language.

The general response among consumer protection and fair use supporters has been very critical. The main concerns are the adoption of a three strikes and your out policy recently adopted in france. The core of the policy is a law that requires ISPs to disconnect whole households if one member is accused -- without evidence or trial -- of three copyright infringements. Accused. You and your whole family may lose the Internet with out substantive review.

Let's reflect on what this means: First, the US government appears to be pushing for Three Strikes to be part of the new global IP enforcement regime which ACTA is intended to create – despite the fact that it has been categorically rejected by the European Parliament and by national policymakers in several ACTA negotiating countries, and has never been proposed by US legislators.

Second, US negotiators are seeking policies that will harm the US technology industry and citizens across the globe. Three Strikes/ Graduated Response is the top priority of the entertainment industry. The content industry has sought this since the European office of the Motion Picture Association began touting Three Strikes as ISP "best practice" in 2005. Indeed, the MPAA and the RIAA expressly asked for ACTA to include obligations on ISPs to adopt Three Strikes policies in their 2008 submissions to the USTR. The USTR apparently listened and agreed, disregarding the concerns raised by both the US's major technology and telecom companies and industry associations (who dwarf the US entertainment industry), and public interest groups and libraries.

How does this fit with the oft-repeated statement of the USTR that ACTA will not change US law, which justified the decision to negotiate ACTA as an Executive Agreement outside of regular US Congressional oversight measures? That remains to be seen.

In addition, there is a removal of the ISP's immunity from liability for the alleged copyright violations that occur over their pipelines if they fail to follow through on the disconnects. Meaning that your not going to get much a chance because the isps wont want to risk the litigation, especially since the potential damages might be more than the value of U.S. GDP.

What has been leaked is the MPAA and RIAA dream bill that stands in contradiction to current U.S. and E.U. law. Under the leaked regeme the ISPs would also have to adopt the notice and take down approach that is used to censor legitimate fair use on sites like you tube and flickr. The shepard fairey poster of obama with hope under it would have to be taken down from wherever it was posted online as the AP would surely allege that it is an infringer.

One of the huge issues here is that the secrecy makes it impossible to lobby or even know exactly what the bill contains. The reason for this secrecy,

According to IDG, the leaked European Commission memo also states that the US Internet chapter is "sensitive due to the different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of Internet freedom on the other)."

Cmon Obama, end the secrecy. If the doomsday reports of the treaty's contents arent true the public should know. if they are true they should know this too. These represent major changes in U.S. law and the public isnt getting any input here as this is being negotiated under an executive agreement signed by president obama. There isnt a more important issue in IP and copy right.

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Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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Media Shield Law on the Horizon

The NYT is reporting on the development of the media shield law designed to protect reporters from disclosing their sources. The law is required in order to give cover to sources who provide information vital to the public knowledge. The type of law that the NYT is reporting on seems like it might be sufficient protection but much hangs on any potential litigation in the court system.

As reported by the Times,

Under the deal, made public Friday, federal judges could quash subpoenas demanding testimony or information from reporters if the judges determined that the public interest in news gathering outweighed the need to uncover the source of a leak, including, in some circumstances, unauthorized disclosure of classified government information.

Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.

A version of shield legislation was approved by the House in March. But a similar bill has stalled in the Senate, and its prospects appeared to dim significantly in September when the administration, responding to apprehension expressed by intelligence agencies and prosecutors, took a harder line with regard to cases in which the government could claim national security concerns.

With the new agreement, however, the White House has now moderated that position.

The text of the bill is here in pdf.

As they say the devil is in the details. The determination of when a source is protected and when it isnt is made in the courts under a balancing test of public need to know versus need to keep secret. The Senate version of the legislation categorizes three different balancing tests for courts to use in deciding when disclosure is required. There are different considerations for civil, criminal, and national security cases.

In a standard criminal cases the standard required for production of a source is that a preponderance of the evidence shows that the compelling party has exhausted reasonable alternatives and that the source is "critical to the investigation or prosecution or to the defense against the prosecution". the washington post stated that,

In criminal cases, the compromise puts the burden on the journalist to establish in court why the public interest would be harmed by the disclosure of a source or sources. The government or defense attorney would need to show only that the information sought is essential to the case.

This is not quite true. My reading of the law is that the burden is always on the compelling party. They must show that the compulsion of the source for the prosecution of the case outweighs any interest in keeping the source under wraps. there is not a burden shift. It is possible that the way the proposed law will play out in criminal circumstances is that there will be a standing presumption in the courts that the prosecution interest outweighs the interest in keeping it secret but the law as proposed doesnt contain that presumption. In fact it could be argued that the law itself represents the idea that the presumption is against disclosure. In assessing this language the NYT said,

Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors. For a judge to quash a subpoena, the burden would be on a reporter to make it “clear and convincing” that the public interest in the free flow of information should prevail.

The language of the law as is available does not use the words clear and convincing in regards to the disclosure and balancing test for journalists. i am not sure where they got this idea as they dont link to available source of text. As currently available the only standard used in regards to disclosure is preponderance. To compel a source the case must be made that the public interest in gathering or disseminating news or information is outweighed by the need for disclosure. Disclosure must "more probably than not" outweigh that interest. It is for the compelling party to prove this. Maybe it is going to be amended to shift and ammend the burden but it hasnt yet.

On the civil side it plays out much as it does on the criminal side. all other options must be exhausted and the source must be one "critical to the successful completion of the matter" and again the disclosure interest must outweigh the secrecy interest.

That leads to the final category, national security. National security had been the sticking point as according to HuffPo,

The administration wanted to eliminate that balancing test in many cases involving terrorism and other security cases.

Under the compromise, the balancing test would be eliminated in classified leak cases where the government can show that disclosure of a source's identity is necessary to prevent or mitigate an act of terrorism or substantial harm to national security. But the government would also have to provide specific facts: it could not make a national security claim and then withhold most of the details.

This change has not yet been made in the available text. As currently drafted the text has the balancing test for national security just as the house bill has. From what i can tell this means that section 2 (a)(3)(A) will be moved outside section 2(a)and new language will be added as to the specificity required for compulsion. Right now it is only a "reasonableness" standard which is a very illusive and slippery burden. Judges would most likely side with the government on these types of cases simply because they wouldnt want a terrorist attack on their heads.

Most of the effects of this legislation will be determined by how high the courts choose to weigh the interests of non-disclosure. Because this is one of the weights in the balancing test an artificially low weight would gut the legislation and a heavy weight would prove very restrictive. Until this is litigated though the answer wont be known. According to Arlen Specter since 2001 at least 19 journalists had been subpoenaed by federal prosecutors for information about confidential sources and that four had been imprisoned for refusing to comply. What he doesnt say is whether any of them would be helped by this law.

Unless significant weight ends up on the journalists side and unless the courts actually hold the governments feet to the fire on national security claims the law could be much ado about nothing.

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Bong Water is the New Gateway Drug

How much prison time is two and a half table spoons of bong water worth? In Minnesota the answer is 86 months of prison time. Thats just over seven years of prison time for possessing some bong water. In a -ridiculous, abhorrent- decision handed down by the Minnesota Supreme Court Bong Water with traces of meth was found to be a substance that qualified as a felony drug possession charge. In essence, the finding is that bong water with meth is a drug in and of itself.

I do note that there are traces of meth in the water. that is a key fact and anyone who doesnt report it that way is oversimplifying the case. The opinion from the court is available in pdf here.

The majority presents its case a straight forward issue of statutory interpretation. They make several moves to justify their approach. They cite case law that requires them to apply a plain meaning rule and statutory language that says, a mixture is “a preparation, compound, mixture, or substance containing a controlled substance, regardless of purity.”

The majority goes out of its way state that the definition of mixture is unambiguous. This is essential to their case. By saying that the definition is straight forward they avoid any of the messiness of public policy, legislative intent, or anything else. the definitions used to determine the meaning of mixture are,

A “preparation” is a “substance, such as a medicine, prepared for a particular purpose.” The American Heritage Dictionary 1386 (4th ed. 2000). A “compound” is a “combination of two or more elements or parts.” Id. at 379. A “mixture” is “[s]omething produced by mixing.” Id. at 1128. A “substance” is “[t]hat which has mass and occupies space; matter. A material of a particular kind or constitution.” Id. at 1726.

The court went on to find that,

The bong water is a “mixture” because it is a “substance containing a controlled substance”—methamphetamine.

The majority reasons based on the premise that the bong water is a drug in and of itself. They take this as a premise because of testimony that

...the pink coloring and fruity odor of the liquid discovered in Peck‟s bong was significant. He explained that bong water is not normally colored or scented. When asked why a narcotics user would keep bong water, Rauenhorst replied, “for future use . . . either drinking it or shooting it in the veins.”

The significance of this passage is clear when the footnotes are examined (note always read the footnotes, thats where the good stuff is). In this case there is a footnote that spells out the fact that the majority thinks that this bong water is going to be used as a drug later on. Footnote one,

When viewed in a light most favorable to the State, the record demonstrates that the water containing methamphetamine stored in Peck‟s bong was colored and scented, that a button was placed over the bong opening presumably to keep out flies, and that narcotics users are known to drink or inject the unconsumed methamphetamine, which is captured by the water in the bong. The dissent states that, even under its interpretation of the statutory language, bong water may be a mixture, and not drug paraphernalia, if the evidence shows the liquid in the bong was more than a facilitator of consumption. Although we do not adopt the dissent‟s interpretation of the statutory language, when the record is viewed in a light most favorable to the State, the evidence demonstrates that the liquid in the bong was more than a facilitator of consumption.

Strictly speaking this step of justification shouldn't be necessary under the majority's reasoning. Their reasoning is that any substance with traces of a drug qualifies as a mixture. The plain meaning of the law that the majority is so fond of applying doesnt need the qualification that this is a drug. What they are trying to do is to hold off the dissent and the lower court's opinion that the bong water is only "drug paraphernalia", part of the means of getting high and thus shouldnt count under the statute.

Amazingly this type of discussion over the nature of what a mixture is for the purposes of drug crimes isnt new. Its very old. 19 years ago we can find the case Chapman v United States. That case dealt with lsd and whether the paper used to apply it should count as part of the weight. The Supreme Court at the time found it to be perfectly ok to count the weight of the delivery mechanism in the punishment. For lsd that meant that a bottle of pure lsd would get you less than a person with paper to distribute it. The dissent in that case uses an interesting comparison for an absurd result,

Thus, whether one dose of LSD is added to a glass of orange juice or to a pitcher of orange juice, it is still only one dose that has been added. But if the weight of the orange juice is to be added to the calculation, then the person who sells the single dose of LSD in a pitcher rather than in a glass will receive a substantially higher sentence. If the weight of the carrier is included in the calculation not only does it lead to huge dis- parities in sentences among LSD offenders, but also it leads to disparities when LSD sentences are compared to sen- tences for other drugs. See n. 12, supra; 908 F. 2d, at 1335.

Think about that for this case. If the bong had been bigger the sentence would have been longer. After all, the water was still in the bong when found. Using the OJ example from chapman it is clear that using the water from the bong as a means of escalating the sentence is a bad road to go down.

The dissent does a pretty good job pointing out how ridiculous this is,

The majority‟s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd. The majority reaches its conclusion because it misapplies the plain-meaning rule and fails to consider the statutory language in its application to the facts at hand and in the context of the statute as a whole. The result is a decision that has the potential to undermine public confidence in our criminal justice system.

The dissent in this case uses a two pronged attack. first is the fact that the water fits under two aspects of the statutory scheme. This is why the majority needed to water to be a drug itself. if it wasnt a drug then the dissent creates ambiguity with its paraphernalia argument (incidentally the dissent does an excellent job of explaining how to use a bong). Second, the dissent looks at what the law is supposed to be doing. surprise, its designed to punish people who carry more crack.

The sponsor further explained that the Act was designed so that “[t]he more crack or cocaine that an individual possess or sells, the stiffer the penalties under the provisions of this bill.” Id.

One of the commentators at the hearings on the bill was James Kamin, Assistant Hennepin County Attorney, who explained the purpose behind the weight-based system. Kamin said that the Act “makes the penalties commensurate with the crime. That is, someone who is possessing 25 grams of crack ought to face a significantly stiffer penalty than someone possessing three or four or five grams of crack.”

Thus the goal is to punish people who have more of the drug. floating a tiny amount of a drug in an ocean of water shouldnt result in a life sentence. The majority in its zealous attempt to punish a drug user and to advance the cause of textualism, trample over the interests of justice. This is a law designed to punish dealers. clearly possessing bong water is not the same as dealing crack and yet the majority applies. The dissent illustrating why this is so stupid.

Treating bong water as a mixture capable of sustaining a first-degree felony controlled-substance charge does not meet the purposes, aims, or objectives of the legislature when it established the weight-based system. Bong water is not marketed or sold by dealers, large or small, nor is it purchased by consumers. It is not even ordinarily consumed. Bong water is usually discarded when the smoker is finished with consumption of the smoke filtered through the bong water. A person is not more dangerous, or likely to wreak more havoc, based on the amount of bong water that person possesses. The bong water is no more dangerous than the bong itself, because both are used to facilitate consumption without being consumed. Thus, there is no reason to believe the legislature intended to treat the bong water differently from the bong, and there is even less reason to believe that the legislature intended to treat bong water so seriously as to presumptively mandate a more than 7-year prison sentence for possessing two and one-half tablespoons of bong water. As stated earlier, I believe this result to be absurd and a threat to public confidence in our criminal justice system.

The dissent goes on to illustrate that this opinion means that bong water is punished more severely than 24 grams of cocaine, heroin, or methamphetamine. 24 grams of heroin is equal to approximately 60 individual doses, 24 grams of cocaine is equal to approximately 200 to over 2000 doses, and 24 grams of methamphetamine is equal to approximately 24 to 240 doses. How many doeses is two table spoons of bong water? none. people dont use bong water as a drug.

This decision is simply bad in many respects. I cant tell whether this is the result of the war on drugs run amok or textualism run amok or what. That this is a result in 2009 after all the evidence showing the drug war to be a failure and the evidence that we simply lock up too many people should embarrass the justices who were in the majority.

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No Idea What They Are Talking About

When i read most articles about voters, their motivations, rationales, etc i want to smash my head against a brick wall. Today featured a string of blog posts by respected bloggers steve benen, digby, matt yglesias about exactly who and what independent voters are. These bloggers have gotten where they are today because they tend to write intelligently about things that they know and what they say is accurate. This is in stark contrast to the "reporters" and other media professionals who profess to cover politics.

Digby wrote a reflection that nicely illustrates the ignorance at work

I was listening to all the gasbags drone on all day yesterday about how the "independents" are all unhappy with Obama and are probably going to vote for the Republicans again when just a couple of years ago they were all unhappy with Bush and voted with the Democrats. This was interpreted as a signal that Obama needs to tack right immediately to recapture them.

Does that make sense? Isn't the answer more logically that independents just habitually dislike whoever is in power and think that both parties are incompetent? Why else would they identify as independents in the first place?

I realize that the villagers think there is some sort of "median" moderate voter who believes that the answer to all of our problems lies somewhere between the positions of the two parties. But that's not necessarily the independent's position. They don't like either party true, but it doesn't necessarily follow that they yearn to split the difference. In fact, I suspect that a large number of them are apolitical people who don't really understand politics at all and simply reject whoever is in power when things aren't going well, without regard to party. (In fact, there is great social utility in rejecting party politics and proclaiming yourself unhappy with the whole set-up. Who can't relate to that on some level?) Many independents ideologically fall far enough outside the two parties that they can't consider themselves members of either --- libertarians, greens etc.

The number of independents out there is quite large and all national politicians need to reach them in elections in order to win. But the knee jerk assumption that they are always more moderate than everyone else is probably wrong. They might just be more cranky, more cynical, more uninformed, more skeptical or more impatient. There are a lot of reasons why someone might be an independent in American politics but I suspect that ideology is at the bottom of the list.

It is embarrassing that the media in this country who cover politics daily have such little understanding about voters and their behavior. There is such a lack of sophistication in the coverage. There is a long history of voter theory in political science dedicated to figuring out why people vote the way that they do, how they form their opinions, etc. Yet discussions meant to inform the public and help them gain a better understanding of politics and how things are likely to work takes advantage of non of it.

When was the last time you saw V.O. Key referenced? Or Morris Fiorina? Its not like the basic texts are hard to find. Head over to this site for some summaries of the seminal theories of voting behavior. I would love to see direct references to these works in the predictions made by the pundits and other blatherers on tv. I would tolerate the taking of positions that showed even a minimal familiarity or understanding of the work. The deepest that any of the experts who routinely tell us why one thing is good for obama or this thing is bad is thomas franks' whats the matter with kansas. Though i doubt they have read bartels reply.

Is it too much to ask that the people who are paid to analyze voting and what is likely to affect it to exhibit a basic understanding of it? Digby's comments on independents are not surprising. The media describes things in terms of left and right. short hand for conservative and liberal, democrat and republican. The truth is that things are more complicated and messy than simple two dimensional axis. most people do not have developed coherent ideologies. they are all over the map.

About half said a major reason for their independence is that they agree with Democrats on some issues and Republicans on others, and that they are not comfortable with either party. Four in 10 said not wanting to put a label on their political views is a principal reason for calling themselves independents. Fifteen percent said they are independent because they are simply not very interested in politics.

As benen, yglesias, atrios, digby, all point out, describing independently registered voters or people without a party as being moderate centrists is lazy and its wrong. Being wrong on the scale that the village is damages political discourse, policy making, and society itself. Politicians change their behavior based on the incorrect assumptions of the media. With the failure of the village to provide even basically correct interpretation of voter behavior i am not surprised that papers are going under.

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Why Grayson's Use of Legislative History is Brilliant

Dday has a post up about the rising liberal lion Alan Grayson and his myriad efforts to protect the American people. As Grayson rockets to legislative stardom i wanted to take a minute to explore just how good he is at his job. The technical thing i have been most impressed with is his use of legislative history and understanding of the legal system in fighting fraud and abuse by government contractors. His use of legislative history is brilliant.

For a a quick refresher,,

When the House of Representatives went after federal funding for the community-organizing group ACORN last week, the bill as written also affected "any organization" that had been involved in a wide range of fraudulent activity and other bad behavior.

On Friday, Rep. Alan Grayson (D-Fla.) inserted into the "legislative history" language spelling out that including all fraudulent organizations was, in fact, the intent of the Congress.

Meanwhile, he has been asking citizens to suggest specific companies which would be targeted by the anti-fraud language and provide evidence for the claim. The list has grown several pages long. The names of those organizations will be submitted into the congressional record next week.

"The purpose of this bill is to cleanse federal contracting and grant-making, completely and permanently. The purpose is to put an end to the invidious practice of rewarding those who steal taxpayer money by giving them more taxpayer money," writes Grayson. "The bill imposes, and is intended to impose, a corporate death penalty on contractors who fall within the scope of its prohibitions."

Careful readers may note that Grayson didnt actually change the text of the bill. Thats the first clever move. If he had actually suggested that it be explicitly spelled out that Boeing etc were part of the bill it would most likely have hindered the bills passage. Republicans would not stand for regulating actual fraud in the military industrial complex. Actually most Democrats would run away from that too. The point is that he left the broad text alone. He simply bolstered the broad "any" language by making it clear for the courts who have to enforce the law that congress really meant any. Why does this matter? Grayson's language prevents courts from reading out Acorn, Boeng, Xe, or anybody else who commits fraud which they might have done without the language.

An example,

The primary intention is not merely to penalize such organization, since other laws perform that function. Rather, the intention is to protect the Government and the taxpayers from losses in the future, and to deter misconduct on the part of federal fund recipients. The intention of deterrence, in particular, requires that these prohibitions be construed broadly, and enforced strictly.

When a judge considers the statute they may take several different approaches. One of these is a textualist approach where upon reading the statute they would find that it does target "any organization." If they strictly adhere to textualist approach they really shouldnt get beyond that. A court giving that a plain meaning could not reasonably find that Boeing is differentiated from Acorn. However, many judges may be tempted to say that congress could not have meant "any" organization and that this would be an absurd result and that the statute should be read to have exceptions. One tool used to determine whether congress really meant "any" is--legislative history.

When a judge looks for the intent of congress to determine whether they really meant "any" organization they will find Grayson's language that is very strong and very clear that they did mean any to include every one perpetrating fraud. I mean his language makes it clear that if you file false reports you get the world dropped on you.

Regarding such prohibitions, Congress intends to substitute a "per se" rule in place of any rule requiring a balancing of factors, or exercise of discretion or judgment, to the full extent permitted for Congress by the U.S. Constitution. "Permanent" means lasting for the entire time that the organization remains in existence. If a principal, or principals, of a covered organization form(s) or attempt(s) to form a new organization, then that new organization may be deemed, through administrative action, to be a covered organization. "Principal" means an officer, a director, or an owner of at least five percent of the shares of a covered organization.

This really cuts out any chance a judge would have to exercise discretion. Grayson wrote it out. No discretion, no balance of factors like courts love to do. One strike and your out.

The other ting that is rather clever about this is that it should alleviate any issues with the bill being a bill of attainder. Bills of attainder are those passed to target specific people or organizations and are unconstitutional. By making it clear that congress meant to get everybody Grayson cleans that up and uses the canon against constitutional conflict to his benefit. Courts are supposed to believe that congress does not intend to pass unconstitutional legislation so if there is a constitutional interpretation it should be used. Grayson provides one. No chance of getting the bill thrown out.

I cant say whether Grayson himself wrote this, he does have a J.D. from Harvard. He is certainly capable. Whether he wrote it or not i have to applaud just how strong he made the legislative history and how smart he was in deploying this tactic. Some judges may blow it all off entirely but if they want to be honest they need to pay attention to it.

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Everything is socialists now

I am some what fascinated by the right wings ability to kill words. The cottage industry they built up to manipulate the electorate through dog whistle and fear is as impressive at is scary. The relentless message discipline combined with an utter carelessness for the actual meaning of words has allowed them to turn what used to be words of art, words with actual definitions, into meaningless terms. The quintessential term that the right has flogged to death is liberal but i have a feeling that socialism is right behind it.

I chalk it all up to a combination of laziness, greed/entitlement, and an utter conviction that the are never wrong and no one else has good points. Laziness prevents the right from creating legitimate policy points open for debate. Greed/Entitlement tells them that they deserve to be on top, that they deserve to be rewarded regardless of merit. The utter conviction lets them rationalize everything they do to achieve their entitlement. The end result is a use of words like "socialism" as a scare tactic devoid of any real meaning.

Lets take the case of Rep. Steve King (r IA).

So in the end this is something that has to come with a, if there’s a push for a socialist society, a society where the foundations of individual rights and liberties are undermined and everybody is thrown together, living collectively off of one pot of resources earned by everyone. That is, this is one of the goals they have to go to is same-sex marriage because it has to plow through marriage in order to get to their goal. They want public affirmation. They want access to public funds and resources. Eventually all those resources will be pooled because that’s the direction we’re going. And not only is it a radical social idea, it is a purely socialist concept in the final analysis.

the first thing that pops to mind is that what he is describing sounds an awful lot like, communism and not socialism. Or maybe the first question is what does marriage have to do with owning the means of production? what does gay marriage have to do with economic theory? You might also ask whether or not we currently live in a closed interconnected system where everyone relies on the work of others. Finally you could ask yourself if representative king is in need of psychiatric help.

The result of rants like king's that just throw in the term socialism for no reason other to say BOO! is that the word becomes devoid of all meaning and is useless in actual debates. Think about how judicial activism is utterly useless in a debate about the role of the judiciary in our society. It has no meaning either proscriptive or descriptive. I feel like thats the point we are at with socialism. Sure it still has a general technical definition but the plain meaning of the word is totally worthless and vague. try and talk to a right winger about the details of what is and is not socailism and in all likelihood you will probably just hear about how crappy liberals and democrats are and how conservative women are hotter than liberal women.

The right thrives on shutting down intelligent conversation, thought and debate. Killing the meaning of words that are useful as part of debate fits perfectly with their mo. Reckless disregard for the truth or for any accuracy in what they are describing kills political discourse. Socialism has come to mean everything short of libertarian paradise of private firefighting and road making. why? why must they kill words?

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Is Obama paying back David Paterson?

There has been a minor dust up regarding President Obama urging Gov Paterson of NY not to seek reelection. We saw Michael Steele make the assertion that it was "curious" on why the White House would ask New York Gov. David Paterson (D) not to run for reelection in 2010.

"I found that to be stunning, that the White House would send word to one of only two black governors in the country not to run for reelection,"
...
"It raises a curious point for me. I think Gov. Paterson's numbers are about the same as [New Jersey] Gov. [Jon] Corzine's. The president is with Gov. Corzine."

The implication here is that Obama is paying back Gov Paterson for not choosing Caroline Kennedy to replace Sen Hillary Clinton. This is the argument made forcefully by Professor Darren Hutchinson at Dissenting Justice here and here. I disagree with Professor Hutchinsons analysis on several points. He makes the link between Corzine just as Steele does but this is a bad comparison as steve benen points out.

First, Corzine and Paterson are not exactly in the same boat, and the comparison is silly. Corzine is running this year; polls show him trailing but closing the gap; and there wasn't a stronger candidate last year, waiting in the wings. Paterson is up next year; polls show him with almost comically low approval ratings; and state Attorney General Andrew Cuomo (D) is strongly favored by voters, both among Democrats and among voters in general.

Professor Hutchinson makes several other points involving the role that race plays here. I am not going to deny that patterson's opponents may be racially motivated. i dont have evidence either way. What i could say is that it places the president in an awkward position when Gov Paterson runs and gets trounced by Cuomo. He has to either support one of the only black governors in the country in a losing bid risking charges of racial bias or he has to back cuomo instigating charges such as the ones that prof. hutchinson makes, favoritism for elites, pay for play etc. It is better for Obama to try and head off this type of choice.

Developing a deeper bench of african american candidates is an important goal. backing a losing candidate because he is black is not. paterson running creates a mess and its not something obama will want to deal with. obama has shown himself to be adverse to these types of complications. he wants the safe noncontroversial candidate ala joe lieberman over lamont.

The point is that i think there are very compelling reasons for Obama to urge Paterson not to run that have nothing to do with the Kennedy appointment fiasco. the world wont end if paterson runs but it will make obama's life more difficult.

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Race and Colorblindness

I have been extremely busy but David has a link and post up on racial views of children that have implications for the way we treat race in society and i wanted to discuss it.

It is a very good piece, particularly because it explodes a lot of myths. One is that diverse schools are not a panacea that will lead to cross-racial friendship and understanding. Apparently not: students in integrated schools still tend to self-segregate dramatically. Of course, they do that in segregated schools too -- the article claims that only 8% of White kids and 15% of Black kids have a "best friend" of the opposite race -- but integrated schools don't seem to help.

Second, the article takes aim at what I have elsewhere called colorphobia: the fear of race as a conceptual category. The article opens by noting the failure of a study which sought to measure the effect of multicultural and egalitarian messaging by parents to young children. The problem was that the parents resisted engaging in specific race-talk as required by the study parameters. Some dropped out entirely, others just didn't say anything beyond extremely vague bromides like "everyone is equal". And, unsurprisingly, this had very little effect on the attitudes of young children.

The first step in treating a problem is admitting that you have a problem. This post goes directly to the heart of a major problem in contemporary politics and American Society--the failure to acknowledge race as a legitimate factor in decisions. The recent trend among conservatives and the public at large seems to be in favor of a colorblind system akin to that exacted in france where race and ethnicity data wasnt even collected until recently.

We see strains of this thought most often in reverse discrimination cases where the majority is discriminated against. Personally im not really in favor of protecting the majority with the 14th Amendment in the way that prevents all considerations of race. reading the 14th Amendment to prevent racial considerations is a way to prevent direct action aimed at eliminating systematic discrimination. While it makes sense in theory to treat equally qualified people with no regard for skin color in truth there is no complete equality in two candidates. Each will be better than the other at certain things and racial diversity itself has value.

The study David cites shows that children who are not given serious information on race pick up the generally negative and seperational tendencies of our society at large. By not recognizing that the differences need to be addressed and not papered over we are locking in the traditional systematic views that regard racial differences as being important. It typifies the problems of the colorblind system. Existing problems cannot be ignored and they dont work themselves out.

Im sure there is a ton of literature on this out there but i just wanted to make the colorblind legal connection explicit

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Hal Turner and the Limits of Free Speech

When you state that someone deserves to die and that their death would replenish the tree of liberty as well as assure the freedom of millions, is your speech protected? That is the central question in the case of right wing radical and white supremacist associate hal turner. Turner's blog entry of June 2 and his subsequent arrest set off a rather large wave of discussion across the Internet. Turner isnt an unknown fringer blogging but a prominent right wing radio host. His speech is often shocking and because of his history and the nature of his speech he provides an interesting case for the boundaries of free speech.

Turners exact conduct

"Let me be the first to say this plainly: These Judges deserve to be killed," Turner wrote on his blog on June 2, according to the FBI. "Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions."

The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of "anti-truck bomb barriers."
...
On his blog, Turner cited another 7th Circuit ruling against white supremacist Matthew Hale, who once called for Lefkow's assassination. Turner also mentioned the Lefkow murders, although they were unrelated to the Hale case.

"Apparently, the 7th U.S. Circuit court didn't get the hint after those killings. It appears another lesson is needed," Turner wrote. "These judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die."

The current test to determine when speech crosses the line from protected speech to unprotected speech comes from brandenburg v ohio. From Brandenburg v. Ohio

"... the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

So turners potential protection rides on three factors.
1) Is what he wrote considered advocacy?
2) Was the lawless action imminent?
3) Was the production of the action from the speech likely?

The first step is deciding whether Turner was actually advocating for the deaths of the three federal judges. Based on his statements that the judges deserve to be killed it is still plausible to categorize the speech as opinion and not advocacy. There is a gap between suggesting that were something to occur it would be ok or even good and actually directing someone to do it. It is a thin line -- but a line. If all he had said was that, Turner might have a decent chance. His problem is that he went a little further.

In addition to positively speaking about their deaths turner provided pictures of the judges, directions to the courthouse, and locations of security measures. These actions in association with his words make it very hard to say that he didn't intend for something to happen to them. Those actions provide some context that indicates his words were more than opinion. The references to a previous assassination also make his statements look less like opinion and more like a call to action. My feeling is that will find that he was advocating not spouting opinion.

The second part of the test is the temporal element. Was turner advocating for the imminent assassinations of the judges. If we take the OSHA version we define imminent danger as immediate serious risk of death or serious physical harm. I think it is safe to say that if he was advocating for their assassination he was asking for it to happen soon before they could make more adverse rulings or otherwise rule against his perceived definition of liberty. Turner certainly wanted it to happen before they ruled to take his guns away. he seemed to portray that this would happen soon. I am satisfied that he was not advocating for this to happen at some undefined date far into the future.


The final piece of the puzzle is the likelihood that the actions turner was advocating could come to pass. It's hard to say whether the violence turner advocated was truly likely. There have not been any reports of someone acting based on turner's words but actual danger isnt the standard. How long do you have to wait before something can be considered likely? Till the bomber buys the material? Till the bomb is made? For myself im satisfied that in the current political climate with the assassination of George Tiller and the shootings in Stanton Heights and the Lefcow killings the nature of the threat turner was inciting could be classified as likely. The issue may eventually make it to the Court simply to provide guidance on this term.

I agree with First Amendment scholar Martin H. Redish quoted in the WaPo that

"...much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse.

"I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range," said Redish, a professor at Northwestern University Law School. "I just don't see him being protected."

Turner's speech should not ultimately be protected. Not explicitly mentioned in the WaPo article is the undercurrent that the judiciary is not likely to be lenient on calls for their deaths. I dont believe that a court is going to need a particularly strong likelihood that a fellow judge is going to be assassinated before they criminalize the speech. Maybe they shouldnt take the fact that the potential targets are fellow judges into account but i think they will. If it comes down to it they might even try and fit this into the "fighting words" doctrine. Turner is going to be going to prison for his blog entry. I think he exceeded the bounds of protected political speech.

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The Next Justice

With the recent confirmation of Sonia Sotomayor President Obama managed to add two axis of diversity to the Court. So whats next? Given the temperament of both obama and justice sotomayor i dont envision obama nominating someone radically different in judicial philosophy or style. When you have nailed down the type of person that president obama is likely to nominate the next logical question is exactly what vessel the philosophy will come in. i think Obama should actually nominate another woman of color. My prediction is that he will nominate a white guy the second time around.

It would be a bold stroke to nominate another woman of color. Given the rather white and male history of the court adding more women to the mix sets an important precedent. Adding a woman should be common place, unremarkable. It can only get that way if presidents establish a pattern of nominating women often. Likewise nominating people of color, asian or black or latino or whatever it doesnt matter, is something that should be considered common. If President Obama doesnt start to establish the precedent i am not confident it will happen any time soon.

The reason i am skeptical about the nomination of another woman of color to the Court is that the reaction will be great at this point in time. I do believe their would be a rather large racial backlash from the right claiming that the black man is executing an affirmative action plan for minorities by nominating them to the court. This would likely be a big political headache for the president and i doubt obama cares enough about placing an actual woman or minority on the bench as long as he feels their interests are well represented by the person he does choose. Its a fight he doesnt have to engage in. Instead he can preserve all his energy for fights on his other big challenges like energy reform or immigration reform or health care reform if we are still dealing with that.

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They took our healthcare!

I havent written very much this summer mostly because i have been busy. Also im not a healthcare wonk and thats been the main conversation. The townhall disruptions do remind me of this.



The entire idea behind the townhall disruptions is to intimidate, bully, and oppress. When conservatives cant win on the merits of an intellectual argument they resort to violence and fear as the primary tool.

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Sotomayor and the Lack of A Liberal Philosophy

Its hard to blame Judge Sotomayor for not giving a long drawn out lecture on the nature of the American Appellate system to the Senators who asked her questions. She after all really wants to be on the Court. It is clear that at this point in time simply keeping your mouth shut and letting the Senators talk about themselves and their views is the easiest way to be confirmed.

You can search around the bloggosphere and see the disappointment in liberal circles that sotomayor failed to articulate any meaningful liberal view of the role of the judiciary in American Society. This is true. We didnt here about the constitution as an illustrative document of principles that are applied to current situations. Instead we heard plenty about restraint and open mindedness. We heard that the Court, contrary to everyone elses understanding, doesnt make policy.

The only time we might see an honest discussion about how the courts in this country operate is if we get someone up there in the hearings who doesnt care about being confirmed. Imagine someone simply going up there and telling it like it is. That the Court makes policy, edits and rewrites law.

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Sotomayor Comfirmation Hearing is Pretty Boring

Im trying hard to get worked up about the sotomayor confirmation hearing. I really am. Sadly though i just cant. Dont get me wrong im very excited to see a latina woman appointed to the court and even though id like to see more liberalism from her she isnt the worst choice ever. My problem is with this entire confirmation hearing process. Does it really serve any point? Are we learning a tremendous deal about Ms. Sotomayor? Are we learning a great deal about the Senators from the questions they ask? I have to say we arent. I mean, we all knew Sessions was a racist before the hearing and that Lyndsey Grahm didnt like Roe. The entire process is congressional theater write large. Right now everyone is playing their part and reciting their lines.

In today's media environment the second that Ms. Sotomayor became the frontrunner for the nomination she and her record were placed under a brutal media spotlight. Her 17 year history on the bench provides ample evidence for the type of justice she would make. If you really want to know how she thinks, her philosophy, whether she ignores law and precedent all you really had to do was to read her opinions.

The thing is, many people have. Ms. Sotomayor is not a mystery. She hasnt been plucked from obscurity with nothing written to examine. This makes me less interested in the hearing. We know by now who she is. She is an overall center left judge. She hasnt been willing to make bold leaps in the law or to use the law as a tool of social reform.

Another thing that makes this confirmation hearing boring to me is the fact that it takes place under a cloak of disingenuousness that affects every aspect of SCOTUS discussion. One aspect of the problem is that people act like understanding the law and making appellate rulings is easy and straightforward. its clearly not. Its hard and hyper-technical in most instances. The attempt to simplify the job and process of a Supreme distorts the discussion but most people cant follow hyper technical discussions of the law and that wouldnt look good for the politicians on tv to be over the head of their constituents.

The AP put out one of the strangest anti-Sotomayor pieces today that makes my point. It comes with the headline Columnist: Sotomayor is no Sandra Day O'Connor. In it the conservative espousing his views stated,

Q: How do you think the regular people, especially Republicans in red states are viewing the hearing?

A: I think most people get very confused in these proceedings because it gets so technical. I think they size up the person.

I'm sure most Republicans who look at her, would think she's not the best nominee. But what do they expect? Obama won. I would have liked him to pick another O'Connor. I don't see her at all being a Sandra Day O'Connor and going back and forth and helping the court find the center. Kennedy is the only justice who does that, and that's a shame. I'd like to see more justices who could help us find the center in a center-left era. I don't see Sotomayor being that person, but I may be wrong.

The era may be center left but the current Court sits far to the right. A judge who sides sometimes with Alito, Scalia, Roberts, and Thomas jusnt isnt likely to side often with the more liberal wing of the court. Its like asking obama to nominate a conservative to the Court.

The entire attitude of the hearings is wrong. its filled with "how would you rule in this case" type of questions. It really needs to focus on judicial philosophy. Thats a discussion that the American public could probably track and might find interesting. The problem is that Sotomayor simply avoids all of these real questions so that she isnt hurt politically. One excellent example cited by Jan Crawford Greenburg

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendments. It is a process -- an amendment process that is set forth in the document. It doesn't live other than to be timeless by the expression of what it said. What changes is society. What changes is what facts a judge may get.

That’s nonsensical. Obviously, the name of the game is confirmation, but if you have 60 votes, why not explain your views on the role of the courts and liberal judicial philosophy? Justice Breyer wrote an entire book on this! He and Scalia have gone on the road to debate whether the Constitution is living or dead (I moderated one of their debates and just tried to stay out of the way). This is an easy one! It shouldn’t be that difficult to knock it out of the park.

Obviously, Sotomayor can't answer questions about how she would rule on issues that might come before her, so it's a different point than sounding like Roberts on those answers. But it's her responses on theory, the sweeping questions of philosophy that are frustrating liberals like Seidman.

“One of the things she said that was striking yesterday was 'judges should never decide cases out of fear.’ But her testimony came out of fear,” Seidman told me this morning. “It doesn’t speak well of her.”

And with a decisive majority in the Senate, “it doesn’t take a lot of courage,” Seidman said. “It takes only a little.”

Exactly. Lack of courage on her part and a lack of spontanaiety on the Senators part and total predictability by the village adds up to make these hearings boring and rather useless.

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Ricci and the Courts Race Neutral Desires

By now im sure those who read this are well aware that the SCOTUS reversed the lower courts decision in Ricci v. DeStefano. The Ricci decision couldnt have been all that surprising given the result of the Seattle Schools Cases. Its clear that at this point in time a majority of the court is of the belief that racism has been largely solved in this country, at least as it pertains to overt acts of discrimination in employment. Ricci sits squarely at the center of the conservative view that race conscious measures are simply not acceptable.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." cite link

The problem of course is deciding what "a strong bases in evidence means". The Court shifts the traditional burden from one on employers to show they weren't discriminatory to a new burden on those who fear disparate impact suits to explain why the disparate impact arose. Marcia McCormick, who blogs at Workplace Prof Blog explains

The majority’s legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decision making which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual’s race. . . .

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It’s also an implicit rejection of the basis for the Court’s early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system. (emphasis added)

This is a very old fight. The question of whether the problem between races in our society is in the people or structural. Liberals find the problem to be structural, poor education, lack of a nurturing environment etc. The difference is that the conservatives now have a majority of the Court. The conservatives now have the ability to impress the ideology -- the theory of race -- that they hold onto reality. As much as i would love to believe that we are beyond race and that everyone has an equal start at this point in time that is simply not the case.

The failure to accept that there are structural inequities that have created minority underclasses and that creating this underclass is a negative for America is problem. Conservatives have a view that everyone operates as individuals and that the creation of the poor minority underclass has no effect on them or their lives or the greater future of America. This clearly isnt true.

Simply put, to maximize the potential of the American population we cannot allow a permanent poor minority underclass. Its a waste of talent and resources. As a country we need doctors, nurses, scientists etc and we need more and more brain power to compete in a global economy. What sense does it make to restrict actions in such a way as to prevent us from closing achievement gaps and increasing equality in our society?

I would prefer to carry out most of affirmative actionesque policies on an economic basis but its not always going to be convenient or helpful to do so. Cases of employment discrimination where minorities arent able to advance because of ostensibly neutral tests that create disparate impacts are such instances. If you have a test that consistently allows white people to advance over minorities by huge margins there are only a couple of possibilities for this. One is that the white people are simply better for that job. another is that there is something in the test that is advantaging whites. If whites were consistently better for the job wouldnt we need to specifically target the minorities to rectify what was making them so much worse on the test? Conservative reasoning about race conscious policy would seem to suggest that we cant. We should continue to let the minorities fail to advance and the whites to succeed and that no problems come from this. The SCOTUS probably agrees with that right now.

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Roberts Court as the Second Lochner Era

In examining some of the recent decisions handed down by the SCOTUS i have to feel like we might be witnessing history. I dont mean the positive jackie robinson breaking the color barrier history but the bad tanks rolling into Hungary kind. The Roberts court has issued and will continue to issue a number of important 5-4 decisions that will gut or otherwise roll back the rights and protections american's believe that they enjoy. The decisions of the Roberts Court will continue to do injustice until kennedy or one of the solidly right wing justices retires. However, the Courts decisions have fallen out of step with the general movement of the population and the Roberts Court will end up looking as out of place during its time as the Lochner Court did preceding and during the New Deal.

I think that it is very interesting that the conservative judicial reign began just as the conservative political reign came to a screeching halt. The political shift of the SCOTUS has been steadily rightward since the beginning of the Rhenquist Court and has reached new hieghts with the Roberts Court. Its almost a cruel twist of fate that we couldnt get rid of Bush quite early enough to prevent him from leaving his lasting impression on the court's balance.

The narrow 5-4 the majority commonly commands has led to several decisions that i think history will not look kindly upon. Included would be, District Attornies Office v. Osborne, Gross v. FBL Financial Services, Davis v. Federal Election Commission, Seattle Schools Case, to name a prominent few. In addition Roberts dissent in Caperton v Massey Coal is another decision likely to elicit criticism for a long time to come. Each of these cases exemplifies Jonathon Turley's description of roberts,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The problem of course is that the current Republican Party is incredibly unpopular. By reveling in conservatism Roberts and his conservative cohorts place the court in opposition to the general desires of the population. Lets not kid ourselves either, SCOTUS decisions are often policy based and policies are often a reflection of politics. For example conservatives generally have a deference to authority, a pride in stability, a preference for concrete rules, essentially combining into a formalist approach favoring procedural due process over substantive due process. I think these traits are strikingly evident in two of the above mentioned decisions, Massey and Osbourne.

In his Massey dissent Roberts writes,

Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Roberts makes the assertion that allowing for more claims of bias will undermine the confidence that people have in the judiciary. He seems to be missing the big issue in this case, the fact that a judge sat on the case of a man who spent three million dollars to get him elected. Thats a lot of money in a judicial election where the incumbent lacks real name recognition and the electorate lacks sophistication on legal issues. Its hard to imagine that the money didnt move votes and nobody believes that the judge was impartial. these circumstances are extreme and unique. Yet Roberts has 40 horrible outcomes he predicts will result from the decision. The problem is that in this case, the judge really appeared to be biased and didnt get off the case. IMO TGM's Scott Lemioux has it correct when he wrote that,

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today's ruling. To the extend that today's decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

We see the same disregard for the substantive justice in favor of form and wishful assertion when Roberts denies the ability of a prisoner, William Osburne, to pay for his own dna tests in an effort to show his innocence.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Roberts central assertion here is that if they allow this guy to have DNA testing they have to allow everyone to have DNA testing. That jury verdicts will cease to have meaning because they can be second guessed by DNA. Citizens will think that the system isnt perfect because innocent people get convicted. This assertion is simply wrong. Allowing testing, especially if its on their own dime, will only improve confidence in the system. Allowing the innocent to remain behind bars in order to preserve the system illustrates a commitment to form and procedural due process. rather than substance. The system and procedure must be protected for its own sake instead of being protected because it provides real protections.

Roberts opinion in the Seattle Cases fits this line of thought as well. His oft quoted soundbyte -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" -- exhibits a fundamental rejection of the complexity of racial inequity in this country. To simply proclaim everyone as being equal will not make it so. To provide entirely equal procedural protections wont help if minorities are never in a position to use them. Imagine everyone has to fill out the same forms for a job but the minority cant read the forms and the white people get half the answers from their parents. Same forms and on their face not biased but the minorities are at a huge disadvantage.

Taken together the body of law left by the Roberts Court will be one of the most business, government, wealthy, powerful, friendly in history. All of this goes against what the general public would most likely want. People want the innocent to be let out of jail and they want the judges who receive massive campaign contributions to recuse from the contributors cases. While racially oriented programs are much less popular they served the important purpose of helping to level out a structurally titled playing field. People dont want millionaires to simply be able to buy elections. People generally frown on allowing discrimination against the elderly. The list goes on and on.

While it may be cliche the arc of history bends towards justice and the Roberts Court does not seem to be bending that way. This indicates they are likely to stick out as a Court in opposition to the felt necessities of the time just as the Lochner Court does. The biggest problem is that we are stuck with the 5-4 split until Kennedy retires and a left of center judge is placed in that seat. only then does the court step back from the dismantlement of the warren courts constitutional protections.

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