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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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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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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Judicial Activism and When Its Good

The activist v. restraint debate has existed in the legal and political worlds since the term judicial activism was first coined, according to Keenan Kmiec in THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM", by Arthur Schlesinger Jr. In 1947, Arthur Schlesinger wrote an article about The Supreme Court of the United States for Fortune Magazine examining the nine justices and placing them into three camps, an activist camp, restraint camp, and the middle ground. What follows is a discussion of judicial activism and when it is appropriate.

Schlesinger via Kmiec,

This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.

You can see right off the bat the problem in the outlined dichotomy. In this conception of what constitutes a non-activist court is clearly one that forgoes its responsibility as a branch of government. The courts and the Supreme Court in particular is supposed to be a a third co-equal branch of government. In the conception of activism outlined by Schlesinger the court is abdicating its role as a check on the other branches of government. When Schlesinger writes about, "the limited place in the American System" he is misstating the proper role of the court into something less than it has ever been. The Court has been a powerful and key player in American History since Marbury and for Schlesinger to view the Courts role as limited seems to be rather revisionist.

Kmiec's exploration of the origins and meaning of judicial activism illustrates an important flaw in the conception of Schlesinger's judicial activism. A lack of precision and metrics for the term.

Schlesinger's article contributes to legal scholarship and popular debate as the first significant commentary on "judicial activism." Schlesinger suggests the layers of the clash: unelected judges versus democratically enacted statutes; results-oriented judging versus principled decisionmaking; strict versus creative use of precedent; democratic supremacy versus human rights; law versus politics; and other equally fundamental dichotomies. Yet, even this initial effort exhibits some of the symptoms of the classic malady that has infected modern discussions of judicial activism. Schlesinger fails to define his terms with precision. For example, would Bush v. Gore or Roe v. Wade qualify as "judicial activism" according to Schlesinger? If so, why? Because they (arguably) exhibited a lack of deference to the political branches? Because they were (arguably) departures from precedent? Because they (arguably) qualified as judicial legislation? Or perhaps because they were (arguably) result-oriented? Schlesinger never explains what characteristic would make a decision "activist." Instead, he ascribes so many attributes to the Judicial Activists and the Champions of Self Restraint that it is impossible to determine which ones are necessary, sufficient, or superfluous. Of course, this line of questioning is unfair: "Judicial activism" had no established (or competing) definitions when Schlesinger used it. Nevertheless, to the modern eye, the ambiguity in Schlesinger's article is frustrating.

This flaw has been transmitted to almost every general public discussion of what constitutes judicial activism. This is why the phrase is often taken to be without any meaning and to be a simple stand in for a decision that one party doesnt like. I think the problem may lie in the fact that the term "activism" has a connotation other than the court simply acting. It would be easy to divide a court into instances when they act and instances when they dont and call one activist and the other restrained. This misses the point though. What i believe is the easiest and most accurate understanding of what constitutes "judicial activism" is when a court enacts a policy that runs counter to general public preference and trend of society. Is that nebulous and vague? Hard to measure? maybe. Judicial Activism is essentially when the court stands in the way of the public moving law or policy in the direction they wish it to go, contrary to the felt necessities of the time.

By this i dont mean that every time the Court invalidates a legislative action they are being activist. I think it is too narrow and naive to hold that every act of the legislature or elected officials is the true will of the people. The public doesnt know and doesnt care about most legislation. Not to mention that the public is often unhappy about the influence of special interests in the legislative process. However, sometimes that will is clear and the court will violate it. I think the Leadbetter case is a good example of activism in that the Court clearly went against the intent of congress to provide protection for women against discrimination in pay and that decision was invalidated by a new Law from Congress. It is also possible for the court to be activist when it doesnt invalidate legislation the public disfavors.

Because the activist concept relies on the reaction of the public it is inherently difficult to gage. The best way to see whether the court is running against the public might be to poll. It seems rather ridiculous to take public opinion polls about the Court but the main reason for judicial restraint is supposed to be the maintenance of the Courts credibility as an institution. What better way to see if credibility exists than to ask people? Of course people probably wouldnt even know enough to answer such a poll unless the court was making unpopular decisions. Otherwise no one would care enough to publicize it.

Kmiec details a different perspective on what activism is. He explores the disregard of precedent as a form of activism. He also looks at so called judicial legislation and the possible activist aspects of that. For this he lloks at the Warren Court and its expansion of rights,

Critics of the Warren Court have often voiced Justice Black's concerns. Even admirers of the Warren Court concede that it was activist in this sense. As Gary Schwartz put it, "In its constitutional rulings, the Warren Court was the paradigm of judicial activism." However, many of the Warren Court decisions most often labeled as judicial activism have gained acceptance. For example, Miranda v. Arizona, which created a mandatory warning that police must give to all suspects upon arrest, is generally accepted by the public and the police, a fact cited in its reaffirmation by the Supreme Court itself in United States v. Dickerson.

Cases like Miranda serve as reminders that whether a case is "activist" may not explain whether or not it is a good decision, when one's definition of "good" is based on other criteria. Individual cases can result in favorable consequences or set desirable precedents despite being improper exercises of the judicial function. Thus, one problem with using "judicial activism" as a pejorative, as critics of the Warren Court often do, is that it confuses the issues. Using "activist" as a substitute for "bad" elides important differences between the two labels; it fails to elucidate the specific ways in which a judicial opinion is improper, harmful, or wrong.

Kmiec clearly points out the problem with the contemporary understanding of activism. The Warren Court was activist in the sense that they did things. They "acted" however the decisions they made are often quite popular and important to contemporary society. The Warren Court was discovering policy supported and in line with public will and desires. At the very least the Warren Court, if it was activist under my conceptual framework was activist in the area where it is not only OK to be activist but where activism is essential-- civil rights and liberties.

Schlesinger himself had this same feeling that activism, going against society, was ok to protect rights.

After describing these opposing factions, Schlesinger takes sides. While he sympathizes with the Black-Douglas wing of the Court, he perceives a threat to democracy inherent in their position, and ultimately prefers to limit "judicial activism" to civil liberties cases.

Kmiec includes a very illustrative quote on the idea judicial activism in regards to civil liberties and rights.

Alfred L. Scanlan offered similar praise for Justice Murphy's judicial activism in civil rights issues, answering the criticism that such activism is undemocratic by replying,

We sanction the decisions of the rule of the majority when they come from the duly and democratically elected representatives of the people. When that majority will tries to undercut or impair the basic principles upon which it rests, namely, the free play of opposing views, practices, parties, etc., then the Court, as guardian of the Bill of Rights, must step in. We will not tolerate democracy to be destroyed in its own name. Justice Murphy grasped that. The label of "judicial activist" is unmistakably a compliment in this context, reflecting a belief that one ought to aggressively employ judicial review to safeguard the rights upon which democracy is predicated. Scholars sometimes referred to Justices Brandeis and Cardozo in much the same way. For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions."

This is why i like my definition of activism. Where is it ok to go against the will of the people? When that will is intended on rending apart the rights of their fellow citizens or people. In cases where the Court is the last vestige of protection for the oppressed should the court simply say that oppression id ok as long as it is bipartisan? no. Kmiec proposed a hypothetical where a law is passed that establishes a religion. This law may be the will of the people but it clearly violates a right in the constitution. It should not be differed to, will of the people or not.

The purpose of our legal system is to do justice. Should courts allow clear injustices to proceed because to prevent them would be activist? As long as they act with full public backing courts may act without fear of losing their legitimacy as institutions or destroying the stability and predictability of law.

My view is heavily result oriented in that the reasoning and manner are not considered as too important. This stems from my attempt to work from the contemporary public debate and not the purely academic debate. Prof. Green who i link below had this to say about results oriented views of activism

Second, the view that activism means any undesirable result is even less plausible. Yet when commentators use the term “activism” without any explanation, it may seem that judicial results drive their rhetoric. If activism were defined to mean undesirable consequences, then the term would add nothing to straightforward conversation about the policies at stake. If judges were evaluated solely on their decisions’ political desirability, then the concept of judicial activism might be irrelevant. Whatever else judicial activism means, it is tied to the practice of judging; thus, the term must be tied not just to results, but also to appropriate judicial methods.

My view does actually take this into account. The public has some idea about how judges should decide cases. They have an understanding that precedent is important and can be controlling. If the judge goes around disregarding it, even if the result is a popular one, the public will may still run against that decision because it disregards precedent. Essentially the public is not entirely about the ends justifying the means. Judicial nominalism is not likely to be supported even if the results would normally be popular or good. My view is not relative to the "goodness" or "badness" of the outcome but rather whether it runs against what the public desires, in outcome or method.

for more excellent reading on th history of judicial activism download the paper available here by CRAIG GREEN Associate Professor of Law, Temple University.

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For Steele: A Brief Understanding of Law

I think it might be a waste of my time to respond to chairman Steele's ridiculous assertions regarding the linkage of empathy and law. I feel like Steele's comments deserve the Billy Madison response. Despite this inclination i want to address Steele and help him understand why his comments are so divorced from reality and an understanding of how the law works.

Other than "possession is 9 tenths of the law" this is probably the most quoted passage having to due with the law,

"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

Now compare this quote from Holmes to the words of Chairman Steele,

STEELE: Good morning y’all, we’re back in the house. We’re talking a little bit of Constitution and a little bit Supreme Court. And a whole lot of saving America’s judicial system and saving our rights as citizens and not having empathetic judges decide cases, but rather judges who are actually understanding the rule of law and what the Constitution and those laws are all about. And how to apply the facts to the law and the law to the facts. And adjudicate my case. I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.

First tip for Steele is to stop trying to talk like he is beyond the cutting edge. It doesnt work and it makes it hard to take him seriously. His major point though seems to be that in a slam dunk case where he should win the life experience or situation of the other guy will steal his win. That is absolutely not how it works and is the absolute wrong conception of what barack obama means by empathy. A better look at what Obama means by empathy is Lily Leadbetter,

For nearly 20 years, from 1979 until she retired in 1998, she worked as a supervisor at Goodyear's tire plant in Gadsden, Ala. She was an area manager, one of the few women in such a position. At first, her pay was in line with what the men in the same job made. Then it slipped. By the end of 1997, she made $3,727 a month. The lowest paid man doing that same work made $4,286 a month, and the highest paid men were getting $5,236. So she sued.

"I just could not believe that they would separate the female pay so far down the line from my male peers," she told NBC News at the time. "I was shocked when my attorneys accumulated all the information, and I saw how low it was."

Her legal argument was this: Every time the company wrote her a check, it was committing sex discrimination. But she lost. The Supreme Court, by a 5-4 vote, said she waited too long to sue. The majority said federal law requires workers to file their complaints within 180 days of an act of discrimination. In other words, the court said, that clock starts ticking when an employer decides how much to pay, not each time a paycheck is written, years later.

In her dissent, Justice Ginsburg said employers often keep salaries secret, meaning it can take years for workers to realize that discrimination was keeping their pay lower. She accused her male colleagues on the court of failing to understand how pay discrimination works. It's not like being denied a promotion, she wrote, when you know right away what happened. And, at first, women may not want to make waves if they think their pay is low, she said.

Empathy from the bench is understanding that a technical issue like the one in the leadbettter should not overcome the injustice done to her by the discrimination. The first rule of the federal rules of civil procedure is that the rules should be interpreted to secure just, speedy, and inexpensive resolutions. It is impossible to evaluate the justness of a situation if you cannot understand or automatically discount the policy arguments being made. The decisions from the Court and from appeals benches have real world impacts.

When a judge talks about "making policy" what they mean is that the result of a decision at the high levels of the justice system defines the law and how it will apply in similar situations in the future. They do this though only in murky situations without clear answersThey cannot simply issue the law by fiat.

First, let's tackle the easy issue: Do judges make laws, or, acting solely on personal will, do they create broad rules for everyone to follow? No. Federal courts only hear cases or controversies involving disputes over federal law (with very few exceptions). Outside of these cases or controversies, courts, unlike lawmakers and executives, cannot simply announce policy.
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When judges decide cases, the issues are usually straightforward. But there are many cases where the law is either unclear or where the relevant constitutional provision, statute or common law principle leaves a fair amount of discretion for courts to pick among reasonable choices. In those instances, particularly in the context of constitutional law, courts arguably "make policy" as they attempt to define the boundaries of legal constraints and obligations. Conservative and liberal rulings follow this principle.

The incorporation of empathy into deciding murky cases with far reaching implications is hardly crazy. It is essential to accomplishing what steele says he wants, equal protection under the law. In fact, if courts act in ways that run contrary to the will or feelings of the general public, there is a way to fix this. This marvel that constrains the ability of the court to make policy is called the legislature. thats right, in most cases congress can edit or rewrite the law to preclude the reading that the judiciary attaches to it. This is exactly what congress did when they passed the Lilly Leadbetter act as the first piece of legislation this term. If you have any doubt about the need for empathy in the judiciary see this post by hilzoy,

Here's some evidence from Jeffrey Toobin's The Nine, pp. 218-219 (note that Justice Powell was the swing vote in this case, and came down in favor of upholding Georgia's sodomy statute):

"One Saturday in the spring of 1986, Justice Lewis Powell struck up a conversation with one of his law clerks, Cabell Chinnis Jr., about Bowers v. Hardwick. As Chinnis recounted the exchange to Joyce Murdoch and Deb Price, authors of a history of gay rights at the Supreme Court, Powell asked about the prevalence of homosexuality, which one friend-of-the-court brief estimated at 10%. Chinnis said that sounded right to him. "I don't believe I've ever met a homosexual", Powell replied. Chinnis said that seemed unlikely. Later the same day, Powell came back to Chinnis and asked, "Why don't homosexuals have sex with women?" "Justice Powell," he replied, "a gay man cannot have an erection to perform intercourse with a woman." The conversation was especially bizarre not just because of its explicit nature but because Chinnis himself was gay (as were several of Powell's previous law clerks.)"

You have to feel for the poor clerk: there he is, a closeted gay man, being quizzed by his boss about why homosexuals don't have sex with women. (Apparently, Justice Powell wasn't thinking of lesbians at all.) I think that a good working definition of empathy would be: that quality that allows a straight man or woman to know the answer to that question without having to ask his or her law clerks. And I would think that the fact that Justice Powell had to ask that question might explain why he believed, falsely, that he had never met a homosexual: if you were gay, would you tell him?

Justice Powell was, as I said, the swing vote in a case that upheld criminalizing consensual gay sex carried out in the privacy of one's own home. It seems pretty clear that he had no conception of what it was like to be gay, and was therefore in no position to decide on the importance of the rights that he was deciding on. That is not a good way to interpret the law when, as in this case, the importance of a right is central to the question whether or not it is protected.

Empathy is simply understanding how things actually are in the real world. Whether this comes in the form of understanding that gay people are not straight or that women actually face discrimination in pay and that sometimes its not easy to spot or that diversity for its own sake has merit and so considering race may not be bad in all possible instances empathy is far from a bad characteristic in a jurist, it is essential. The law is not black and white michael steele. Please stop acting like it is and contributing to a misinformed discussion of the subject.

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Even Bad People Deserve Good Lawyers

The NYT has a piece up on the upcoming confirmation of Erik Holder as Attorney General. This piece focuses on the increased opposition from Republicans in the Senate who are "concerned" about the clients that Mr. Holder represented while in private practice. They seem to believe that there will be conflicts of interest so great that it prevents Holder from doing his job. Now we will put aside the fact that this comes from the GOP the party of corporations, big business, and corruption. Let sexamine exactly what the GOP is alleging here about lawyers role in society, the criminal justice system, and civil dispute resolution.

From the Times,

“We’ve had eight years of an administration that turned a blind eye to corporate criminals,” said Terry Collingsworth, a Washington lawyer who is suing Chiquita over the Colombian protection money and is facing Mr. Holder in the case. “We need someone with his level of experience and cachet to clean up the Justice Department. Yet I do have a concern and I sure hope that he doesn’t carry over his corporate defense practice into his approach to the job and how he handles these types of cases.”

When the National Football League was facing a legal and public-relations disaster in 2007 over a dogfighting scandal involving the Falcons quarterback Michael Vick, it turned to Mr. Holder to help navigate the maelstrom and represent the league. The pharmaceutical giant Merck tapped him as its lawyer in a Medicaid overbilling case that ended in a $671 million civil settlement. And Rod R. Blagojevich, the now-impeached governor of Illinois, picked him, albeit briefly, to investigate for the state a controversy over a casino development and its possible ties to organized crime.

Already, Mr. Holder’s brief association with Mr. Blagojevich has drawn scrutiny from Republicans, who are waging a more spirited campaign against Mr. Holder’s nomination than many had anticipated. Until now, most of the scrutiny has focused on controversies during the nominee’s time as deputy attorney general at the end of the Clinton administration, particularly his role in the pardon of the fugitive financier Marc Rich.

In responding to written questions from the Senate Judiciary Committee, Mr. Holder made no mention of a 2004 announcement in which Mr. Blagojevich introduced him as a “special investigator” under a $300,000 contract with the state.

The appointment fell through, and Mr. Holder’s aides said his failure to mention the episode had been an oversight that was soon corrected. But some Republicans said they were troubled by the omission. Three Republican senators on the Judiciary Committee — Tom Coburn of Oklahoma, John Cornyn of Texas and Charles E. Grassley of Iowa — sent the governor’s office a Freedom of Information Act request last week seeking documents on the aborted agreement.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, sharply questioned Mr. Holder’s character and political independence in a speech last week on the Senate floor. Mr. Specter told reporters Friday that he wanted to see more information about Mr. Holder’s private practice, to assess whether he was up to the job of attorney general.

I am sure they are very excited about the Blago link. These Republicans were untroubled by the incompetent people who have filled every executive department under Bush. They were untroubled by the mess created at the DOJ under Bush where the law was bent and malformed to suit their purposes. They were perfectly fine with the unqualified lawyers and severely skewed priorities. Instead they have been full throated supporters and enablers of Bush and his ridiculous legal policies. Now they want to come out and attack Holder for representing clients who need a defense.

I have a big problem with those who attack defense lawyers. Under our system of laws everyone is entitled to a defense. Murderers and Rapists and Corporations are all entitled to a defense. This means that someone must be there to defend them. Someone has to do that. Our system cannot function without a proper defense. Otherwise those who were forced to become involved in the system would have no confidence in its ability to meet out justice. If you were accused of a crime you did not commit yet everyone thought you had you might not end up with a competent defense without good lawyers to defend you.

Even those people who have in fact committed crimes deserve a defense. In those cases we can keep the system honest. Make sure the prosecution proves their case Beyond a reasonable doubt and that they did not violate the laws to do so. Unless those accused of misdeeds can have a good defense the prosecution will simply run over the innocent as well as the guilty.

I differentiate lawyers who defend the guilty from ad execs or people like mark penn because corporations are not entitled to a good public image. we might function better if the general public was not being sold on a rehabbed image of an amoral corporation.

Everyone is entitled to good defense. If the republicans succeed in killing the Holder nomination because he represented some big corporate clients it would be a blow to our very foundation of justice.

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Frist ICC War Crimes Trial to Occur

In light of all the domestic and other international problems that are going on right now the first international war crimes trial to be held by the International Criminal Court (ICC) has received almost no media attention here in the US. This is rather unfortunate as America is supposed to be a leader on human rights. Of course this reputation has taken a well deserved hit over the last eight years but in many ways the causes of that decline should raise awareness not decrease it. America has a rocky history with the court and we have decided not to sign on to it out of sovereignty concerns regarding possible modifications required to the constitution. As a result we must look on as bystanders at the courts first trial, that of Thomas Lubanga Dyilo.

Lubanga is charged with he recruitment of child soldiers into his Union des Patriotes Congolais (UPC) and its militia, the Forces Patriotiques pour la Libération du Congo. As his trial is the first for the ICC the court has been debugging itself dealing with procedural issues. Two of the most important of these issues are the participation of victims and the procedures for dealing with confidential and secret documents provided as evidence.

The participation of victims has not been previously allowed in the three previous war crimes tribunals, International Criminal Tribunals for Rwanda and for the former Yougoslavia, the Special Court for Sierra Leone. Victim participation is an important step for the trials. One of the most important factors in the success of the trials will be the backing of the victimized peoples. these people need to feel as though the trials are just and done with them and for them. Otherwise they lack a legitimacy and an important force in moving forward in international human rights and law. Victims testifying should be similar in nature to any trial where the victim takes the stand and there is no compelling reason, imo, to forbid it as long as their victim hood is established. Victims testifying can only help the population to feel like it is their justice and not something done simply to assuage foreigners guilt or sensibilities.

The second procedural issue deals with confidential evidence.

Shortly before Lubanga’s trial was scheduled to begin in 2008, the Trial Chamber of the ICC found fault with the prosecutor’s proposed use of evidence collected by the UN and NGOs. The evidence was in some 200 documents that could contain exculpatory material that might help the defense prove Lubanga’s innocence. These were documents the prosecutor had obtained on a confidential basis. The court ruled that the prosecutor should share the evidence with the Trial Chamber and the defense. Since the prosecutor did not immediately have permission to share the documents, the Trial Chamber canceled the trial and halted the proceedings.

Tuesday the stay was lifted after the prosecution agreed to allow the defense access to the evidence. The problem as a little more complicated than simple access to the documents Article 67 of the Rome Statute requires the prosecutor to allow the defense access to evidence in his possession that “tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.” ICC judges found that Moreno-Ocampo had incorrectly relied on a provision in Article 54 of the Statute, under which he may agree not to disclose confidential information obtained “solely for the purpose of generating new evidence.”

The importance of proper and complete discovery cannot be overstated. One of the biggest complaints against the military commissions set up to try the detainees at Guantano Bay is the lack of complete disclosure of the evidence to the defense. Defense lawyers and prosecutors alike have walked away from the trials because of the governments refusal to grant the defense access to exculpatory evidence. Legitimate courts reveal the evidence that may support the defendants innocence. with out the procedure the ICC loses legitimacy completely in the eyes of any nation reluctant to participate. From there it is a short step to the failure of the institution.

The trial of Lubanga will be closely watched in many parts of the world and it should be no different in the US. The trial holds important consequences for the future of international human rights and justice.

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Office of Legal Counsel

The office of Legal Counsel (OLC) is one of the many appointments that President Obama will have to make for his administration. This appointment may not be as high profile as a treasury secretary of secretary of defense but the appointed person plays a critical role in the executive branch, giving opinions of the legality of something. The numerous and infamous memo's suborning torture and infinite detention of "enemy combatants" were products of OLC. The person Obama appoints will have the chore of going through these legal memo's and bringing them into compliance with real law instead of the imaginary law that President Bush subscribed to.

The Anonymous Liberal explains what can happen when the person in charge of keeping it legal is unprepared and unqualified.

After 9/11, John Yoo used his perch at the OLC to authorize a number of illegal activities--from torture to warrantless surveillance--that are not only deeply troubling but have badly damaged America's image in the world. Yoo was allowed to do most of this because the head of the OLC at the time, Jay Bybee, was not familiar with the relevant executive power issues and therefore allowed Yoo to run amok.

When Jack Goldsmith took over the OLC in 2003, he discovered--to his horror--that a multitude of Bush administration programs rested on entirely indefensible legal opinions drafted by the OLC during his predecessor's tenure. He was forced to walk most of them back, a move that caused a major internal dispute within the Bush administration and nearly resulted in the total implosion of the administration just prior to the 2004 election.

Whoever President Obama selects to head the OLC will have a critically important job. Virtually every opinion the OLC has issued during the post 9/11 era--even those written after Yoo's departure--will need to be reviewed and, in all likelihood, rewritten. Moreover, many of the terrorism-related laws that have been passed in the last few years--relating to surveillance, detention, torture, etc.--are filled with ambiguities and language that will require careful interpretation. Many new legal opinions, opinions that will be of enormous consequence, will need to be drafted.

There is a lot at stake. Just as Obama has put together a team to review 200 Bush administration actions and executive orders that could be swiftly undone to reverse the president on climate change, stem cell research, reproductive rights and other issues there is going to be a lot of people working on fixing the legal system.

To fix these issue will take some time. Rewriting and Re-researching all the legal memo's that have come out of the OLC under Bush will take an army of lawyers and researchers. The person selected to oversee the office will need to be ready to go from day 1. AL, Glenn Greenwald and Orin Kerr all have one person in mind, Georgetown Law Professor Marty Lederman.

Professor Lederman is exactly the sort of person I would want in charge of this important task. First, he's deeply familiar with all of the relevant executive power issues, having written about them extensively over the last few years. He is also intimately familiar with the workings of the OLC, having worked there from 1994-2002. And most importantly, I think Lederman has a good sense of what the OLC's role should be (i.e., not merely rubber-stamping whatever the president wants to do).

Seems to make sense. Experienced, apparently competent and qualified. Those should be positives.

I must believe that Obama will not be trying to commit activities he knows to illegal. There is a world of difference between getting an opinion on what is an is not legal and deciding to do something and justifying it after the fact. With Bush gone we might return to the former.

something to keep in mind

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DOJ Seeks Reduced Sentence For Abramoff In D.C. Corruption Case

You may or may not be familiar with the way the US justice system works. 95% of cases are plead out or settled. Meaning that less than 5% go to court. The art of the deal is one of the most important skills for defense attorneys to posses. The system cannot handle it if everyone went to trial. The other feature that comes with this dealing is that the little fish turn over on the bigger fish. This means that these fish who inform are given a lesser sentence, even when the fish is particularly rotten. In this case the rotten fish is Jack Abramoff,

Federal prosecutors are seeking a reduced sentence for imprisoned GOP lobbyist Jack Abramoff in a Washington, D.C., corruption case, citing his his "significant and useful" cooperation against other individuals involved in the scandal that brought down the one-time K Street superstar.

Prosecutors are seeking only a 64-month sentence for Abramoff in the D.C. corruption case, far less than the minimum 108 months behind bars he could have received under federal sentencing guidelines. Abramoff, who is already serving a 70-month prison term in a Florida fraud case, is scheduled to be sentenced Sept. 4 in the D.C. case.

The Washington Post is reporting that Abramoff "would serve no more than another three years and three months in prison, not accounting for credit for good behavior awarded by the Bureau of Prisons," meaning he could be out by late 2011, and possibly a year earlier if Abramoff's attorneys are successful in winning furhter reductions.

This is particularly grating. This is one of those cases where the person needs to spend a decade plus in prison. Corrupting the American government should be considered treason. It was a crime against the American people are certainly cost the lives of some Americans. So excuse me if i dont find this enought to let him out.

The reduced sentence for Abramoff "is appropriate given Abramoff’s extraordinary cooperation to date, cooperation which can be wholly or partially credited for the convictions of a member of Congress, five high-level legislative branch officials, one high-level executive branch official, and two other mid- to low-level public officials, as well as ongoing matters," prosecutors wrote. This list includes: former Rep. Bob Ney (R-Ohio); Tony Rudy, a one-time top aide to former House Majority Leader Tom DeLay (R-Texas); Neil Volz, Ney's former chief of staff and former lobbyist at Abramoff's firm; Will Heaton, another former Ney aide; and J. Steven Griles, former deputy secretary of the Interior Dept.

The government also recommended that Abramoff's tax penalties be reduced by more than $1 million, citing errors in the original calculation of what Abramoff owed in 2001 and 2002.

Given that the DOJ was recently investigated for its political hiring practices and the people Abramoff informed on where from the same party it makes it a little suspect that they are letting him out early. Jack should stay in prison. I dont care how much he helped put other sleaze bags away. He does not deserve to be let out early. No easing of sentence restrictions please.

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Trying Soldiers in Civilian Courts

Passed by Congress in 2000, the Military Extraterritorial Jurisdiction Act was designed to allow the prosecution of civilians contractors employed by the Department of Defense for crimes committed while overseas on official business. The original intention was to close a loophole allowing civilians to escape prosecution for serious crimes because they were not subject to military law and U.S. prosecutors lacked jurisdiction. The law is set to be used for the first time tomorrow.

Former Marine Sgt. Jose Nazario, 28, is accused in the killing of four Iraqi prisoners. Nazario is charged with voluntary manslaughter, assault with a deadly weapon and discharging a firearm during a crime of violence in the alleged killing of the four Iraqi prisoners during the battle in Fallouja on Nov. 9, 2004. Nazario left active duty when the Naval Criminal Investigative Service began its investigation making it impossible for him to face military justice as the two others charged in this case are.

The Nazario case is important for several reasons. As the first case to be brought under the Military Extraterritorial Jurisdiction Act it will be breaking ground and setting precedent for the law. It will give us some idea of how civilians will react to things that occurred in war zones. The case will also have a big impact on the potential cases brought against those who the law was designed for, civilian contractors.

The civilian contractors in Iraq need to be held accountable and this law has the potential to do it. The other potential high profile case that may be brought under this law is the one against the employees of Blackwater. Specifically, there are potential charges against three Blackwater guards present at the time of the Sept. 16 incident in Baghdad's Nisoor Square where 14 Iraqi civilians were killed and 18 injured.

The Nisoor shooting is only one of many incidents that enraged the Iraqi people against the US. The Iraqis do not generally distinguish between the private Blackwater and the American Government or US military. Apart from angering the Iraqis the shootings also angered many in congress who were upset over the inability to hold the private security contractors accountable.

The incident that Nazario is alleged of perpetrating is described in the LAT

Nazario, the squad leader, allegedly had radioed to his superiors that the squad was holding four male prisoners after storming a home used by suspected insurgents.

"Are they dead yet?" an unidentified Marine allegedly asked Nazario over the radio.

Taking that inquiry as an order to kill the four, Nazario killed two of them and ordered Weemer and Nelson to kill one each, according to documents filed in Riverside federal court.

The question of trying Nazario in a civilian court has created divided opinions. One group believes that trying Nazario in civilian court exposes him unfairly to people who could not understand what pressures he was under. The other group feels it is unfair to try soldiers in civilian courts because the civilians will be too deferential to the soldiers as we have been told to “support our troops”.

"I'd love for my guy to be tried by civilians," said attorney Joseph Low, a former Marine who represents Sgt. Jermaine Nelson, 26, who is set for court-martial in December. Also charged in the case is Sgt. Ryan Weemer, 25.

The opponents claim

"He can only get a fair shake if those civilians are honorably discharged Marines who fought" in Fallouja, said William McNulty, secretary of the Marine Corps Intelligence Assn., a group of former Marines. "Soccer moms and pops can't understand the horrors of war or the complex set of [rules of engagement] that these Marines face."

That is true, but it works both ways. It is not fair to ask civilians to judge the soldiers in that way. The reason we have “jury of peers” is so that the people sitting in judgment have an understanding of the accused and can understand the circumstances, civilians cannot do that for the soldiers in this case. I am not sure why there is no provision to recall soldiers to active duty to face criminal charges even when discharged. It seems like something the military would do.

It is not fair to the soldiers or the civilians to have these trials in civilian courts. The government intends to present these action as occurring in cold blood when others paint the situation as complete chaos.

"In reality, the situation was far from the calm, organized environment the government prosecutors apparently intend to present to the oblivious civilian jury. The fighting was so fierce that the (3rd battalion, 1st Marine regiment) Battalion Aid Station received 197 combat casualties out of the 1,250-man reinforced battalion during the first 96 hours, according to Marine Corps records."

There needs to be a way to try soldiers by soldiers. There is also some question about whether the law should even apply in this case. In any event the case will be followed closely and its outcome will have big repercussions.

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