I'm Back (with some Comm'r Copps Content)

Sorry for the lengthy absence. Certain other events were occupying my time... Posts here will probably continue to be infrequent for the foreseeable future, but there shouldn't be any more month-long gaps.

Anyway, having helped build his broadband policy arsenal last year, I'm always happy to point out when FCC Commissioner Michael Copps goes on the broadband policy warpath as he did this past week at the YearlyKos convention. Slashdot coverage here. Matthew Yglesias discusses it here (and the happy former Copps intern in the comments section isn't me). I have to disagree with Yglesias's comment that Copps is not a good speaker. He may not be the most captivating speaker, but he writes some very good speeches and delivers them effectively. I won't argue the point about his jokes, however. It is nice to see that media and telecom issues have a big following at YearlyKos. It's important stuff, although, as Yglesias notes, somewhat obscure. Let's hope that after the 2008 election Copps will have the power to do more than climb up on a soapbox about these issues.

As a random aside, I also wanted to link to an interesting column on Slate, co-written by UVA professor Jim Ryan, on Clarence Thomas's sincerity as an originalist. Both Scalia and Thomas have struck me as less principled and more political of late...

Blocking Innovation

As Vonage and Verizon having been battling in court since early this year over Verizon's claims of having patented some faily obvious elements of VoIP used by Vonage, software patents have again fallen under scrutiny. Tim Berners Lee, the inventor of the World Wide Web, has an OpEd in the New York Times arguing against software patents. He quotes Bill Gates writing in 1991 that if early computer pioneers had understood how to patent their works "the industry would be at a standstill today."

Software has always seemed poorly suited to patents for a number of reasons. Most of what software does is fairly obvious. The really innovative stuff tends to fall into either broad conceptual ideas (like the web) that would be inappropriate for patents or clever algorithms (like quicksort) that are basically mathematical discoveries, abstract intellectual concepts of the sort not traditionally patentable. The rest of it, however complex and difficult, tends to be fairly mundane implementation, requiring little originality (but often a huge effort in coordination).

Existing patent law, in theory, should prevent unoriginal things from being patented. But in reality it does not seem to do a good job of this, particularly in the initial granting of patents. And even if questionable patents can still be challenged and overturned in court, this is a remedy of limited value to small developers and open source projects. Going up against Microsoft or IBM's legal team is often an insurmountable barrier to entry. And both patent examiners and judges appear to struggle with the concepts of computer science in their efforts to determine what is or is not an obvious development. As the OpEd points out, two of Verizon's patents in this case cover the painfully obvious concept of converting between phone numbers and internet addresses.

From the economic analysis side as well, software development is ill-suited to patents. For one, there is, as the OpEd discusses, alternative protection available for software developers in the form of copyrights. Any direct copying already gives rise to a legal claim. And copyright is, as the article notes, considerably less cumbersome and expensive. Also crucial, copyright does not create liability for independent invention, while patent does. So if Verizon has valid patents on basic elements of VoIP they can bar anyone else from offering a VoIP service until those patents expire. With a copyright they could only prevent people from actually copying their system, but they would have no claim against a competitor who developed their own, even if it worked the same way.

It is important to recall the purpose of intellectual property protections: to allow inventors and developers to profit from their investments in new technologies and innovations, thereby promoting more such investments. The need for strong protection is much lower in the software space than for, say, pharmaceuticals. Development costs are relatively low and innovation occurs rapidly enough in software that there is a significant first-mover advantage even without patent protections. As long as competitors cannot rip off a new program wholesale (which copyright prevents) and have to independently develop their own version, the first innovator will be rewarded for her efforts. Look at how YouTube still dominates over other video-sharing systems. Some of its competitors are offering technically superior systems, but YouTube got there first. The software market, before these big companies realized they could patent everything under the sun, was wildly innovative and fiercely competitive. They didn't need patents to achieve that. Patents impose signicant transactional costs and barriers to entry without adding any meaningful beneficial incentives to the software business. This system is a mess, and I hope the Verizon case will help to spark reform.

Mistakes Were (Not) Made

I've been holding off posting on prosecutorgate so far mostly because I've been waiting with bated breath for it to explode. This is the big one. After a nearly endless series of blunders, scams, and scandals in the Bush administration, some big, some small, this is the one that I think will go down in the history books as the defining Bush administration scandal. And I've been too intently observing it unfold to say anything. I've finally been moved, however, to respond to the line of defense being offered by Gonzalez and the White House. That line: mistakes have been made. Namely, the DOJ was not fully honest about why the prosecutors were fired. End of story. They hope, by acknowledging and focusing on this particular aspect of the problem, to obscure what lies behind it. On the Newshour last night, the Republican operative (I don't recall who it was) was quite exercised about how awful it was that the DOJ misled the Senate on this count. He was also adamant that nothing else had been done wrong and that there was nothing actually improper about the firings themselves. Bush and Gonzalez have made similar remarks.

Not so fast. The bullshit about firing these prosecutors for performance issues is the least of the problem. Even the firings themselves are not the whole of the problem. This scandal is about the politicization of enforcement of justice in the US. So far Scott Horton at Balkinization has said it best:

What is at stake here? The issue is enormous. It is whether the criminal justice system will be turned into a partisan political tool. Bush's Administration is already widely called a "hackocracy" because of his tendency to fill slots with unqualified and incompetent partisan hacks. But the crisis at DOJ goes far beyond that. Even civil service positions - which have been protected from this sort of partisan corruption since the Hatch Act of 1939 - are being politicized. The Boston Globe, for instance, has closely documented the process of weeding out qualified career attorneys from the Civil Rights Division at DOJ and their replacement with political retainers - and the same process has continued throughout the Department. But at the heart of the DOJ scandal lies political intrusion into the exercise of prosecutorial discretion - one of the areas which a democratic society most needs to shield from partisan intrusion. There is now clear evidence that Gonzales and Bush directed political prosecutions and attempted to deflect prosecutions of Republicans for political purposes. A state that criminalizes political adversaries and that cloaks the criminal conduct of its retainers is by definition a tyranny.

A study by Donald Shields and John Cragan (not yet released) shows that under Bush seven times more Democratic officials have been investigated by the DOJ than Republican officials. Match that up with the Boston Globe findings. Combine it with all of the DOJ/White House emails released by the Senate showing the overtly political nature of the firing decisions, and how they tied into politicized prosecutions. There were no mistakes made. Nothing accidental occurred here. These people knew exactly what they were doing. They created one law for Democrats and another for Republicans. The Bush administration has made a concerted effort to reduce our nation to a banana republic. Gonzalez will have to go, but this scandal ought not end there. This administration and its DOJ is rotten to the core. For the sake of our nation and our system of government the Democratic Congress needs to climb onto this scandal and ride it as far as it can take them. This sort of misconduct needs to be punished to the fullest extent possible.

From the Wacky World of Legal Compensation

Dahlia Lithwick on Supreme Court clerkship signing bonuses. Sure they're silly, what about big firm pay scales isn't?

Defaults and "Libertarian Paternalism"

I just watched a lecture by Cass Sunstein titled 'Libertarian Paternalism is Not an Oxymoron'. I'm not so sure. It seems to me that there is something important in the idea of libertarianism that is anti-meddling. It also seems that there is something fishy about Cass's idea of Libertarian Paternalism.

Sunstein says that there must be some default in any government decision. I guess that's true, but he reads a lot more into this than I think is warranted. First he mentions the notion that a no fault law regarding an auto accident is not an instance of government non-intervention, but rather an instance of the government granting privilege. The driver who caused the accident is not forced to compensate the innocent driver, yet the innocent driver is restrained from demanding compensation on his own. Sunstein later compares this to the presumption that an employer can fire an employee when and as they wish unless the specific employment contract states otherwise. He specifically says that this is not an instance of government non-intervention, but rather an entitlement granted to the employer by the government. Since what here appears to be non-action by the government is really a form of pro-business action, the question of whether or not the government should intervene is nonsensical. It is a 'mystification', as Sunstein notes in the Q&A. Since inaction is really a form of covert intervention the question of whether or not to intervene is trivial. We can only argue how we ought to intervene.

This seems to advocate a point of view that I find abhorrent. It suggests that life, liberty, and property are not fundamental rights to be protected but privileges to be granted at the pleasure of government. I would much prefer a philosophy of government in which the fundamental goal of governance is to secure these rights as firmly as possible. Under this assumption there is a default response to each of the situations mentioned in that last paragraph which is obvious and, I think, optimal. In the case of the car accident loss being left where it fell, the government is clearly failing to protect the rights of the victim. The goal of the government (under the aforementioned philosophy) is to secure individual's rights to life, liberty, and property. It would be ludicrous to suppose that this could be accomplished without torts (or likewise without the use of police power to try to prevent wrongful conduct). But in the latter case (that of job security), it is clearly in the interest of the liberty rights of both parties (and very likely the property right of the employer) that they be allowed to structure their contract as they see fit. Within the bounds of this minimalist framework we can do away with the absurd (or so it seems to me) nullification of the concept of non-intervention. Non-intervention would be to adhere to the principle of maximizing individual enjoyment of the rights to life, liberty, and property.

Rather than carry on in this line I will discuss the obvious objection to my discussion thus far. Sunstein is not proposing that we remove people's contract rights, but rather that we impose default contract structures that can then be negotiated away from. First I will say that this is at times quite fuzzy (e.g. the job security argument i.e. I thought that defaults weren't entitlements) in his expression. I sincerely believe that the principle is merely a backdoor approach to regulation, and that his use of the word libertarianism is a usurpation of the term (this is the slippery-slope argument that Sunstein says is silly). Many of his examples involve at least some components which are involuntary and do not allow for choice. My second point along this line is a much more interesting one. Can such policies really be implemented (meaningfully) without imposing upon the liberty of the parties involved? What if I own a business that has never had any sort of structured savings plan? If the government mandates that employees be defaulted into a certain sort of plan, would I not be obligated to set up such a plan? If not, is the program really being meaningfully implemented? Or, say that the government requires that the default employment contract include a provision supplying job security. What does this mean? Either the employer's liberty is unaffected, meaning that they have just as much right to opt out of the default as the employee does, or, only the employee has this right (i.e. the employee has the right to demand a contract with job security) and the 'default' infringes upon rights the employer previously enjoyed. If the employer can just opt out of the default, then nothing is changed and the default is not meaningful.

I also think that Cass glosses over the argument that the 'science' of what makes a good decision is controversial. The sciences (mostly social sciences ) from which these recommendations come, tend to be consensus sciences in which group think is common and people with an agenda can easily push the herd toward a predetermined position. Sunstein thinks that it will be easy to tell when personal interests are involved or when the science is fuzzy. I doubt this.

I don't think that the underlying idea of defaults is bad. There is no doubt that people do tend to stick with defaults. I think that the phenomenon originates in the inherent credulity of cultural animals. The evolution of culture is, or rather was during the course of human evolution (i.e. several thousand years ago and earlier), an ongoing numerical optimization (by randomized search) of a highly chaotic system with regard to the contents of behavioral instruction. The powers of this computational process dwarf those of the human mind. So it would be shocking if the human mind did not possess mechanisms to keep it from rejecting the output of that process: received culture (i.e. defaults). It is also perfectly reasonable to suggest that, given that we no longer live in a culture shaped by the evolutionary process, these mechanisms are defunct. So it makes sense that we would be better off providing people with a rationally determined set of defaults to prevent their credulity mechanism from accepting a bunch of random crap. But this is harder than it sounds. I mean the 'determining a rational set of defaults' part. It can be done, but it requires a great deal of thoughtfulness, trepidation, and investigation. From my point of view, doing so through the auspices of modern democratic government virtually guarantees that we will botch the process.

I think a great example of rational default setting is the creation and adoption of the U.S. Constitution. It's hard to figure out what it is that makes a Constitution distinct from the body of ordinary law if it contains a provision for its own amendment. The real distinction of the Constitution is that it is the supreme default of the land. It has all of the power of social proof behind it. I have said before that I think it is very much a rationally conceived document. So it's a rational default. The tragedy is what the Supreme Court has done to the constitution. They have dismembered our glorious default. It is far easier for a small group of highly educated individuals to overcome their preference for the default than for a great big congress and a huge unruly populace to do the same. So whenever a significant proportion of the population want to change the Constitution, it almost always ends up being easier to have the court skew its interpretation than to get congress to change the actual wording. This path of least resistance is the weakness that undermines the constitutional fortress. The justices have been smart enough to overcome the default but not wise enough to understand why they shouldn't.

Killing Innovation

I just wanted to link a fantastic article in the IEEE magazine on how the DMCA (and potentially the broadcast flag) harm technological innovation and development. Hardly an original argument, but they have some really great examples and illustrations. I wish I would have had this when Jane Ginsburg came to visit...

Re: Putting Numbers on Surveillance

I think generally that the amount of tortured logic we've seen from this administration in their legal justifications for a lot of things is fairly astounding. This definition of surveillance is par for the course. Respect for the law is obviously a foreign concept to these folks. It seems more like a game to them. If you want to read a great legal analysis of the NSA flap, a bunch of well-known legal academics and former high-level legal officials have written a very thorough and detailed piece for the New York Book Review.

The Confirmation Process Confirms the Worst

I have paid some attention to the Alito hearings out of professional interest, and this weekend I tried to take a step back and think about what value the hearings have, if any, for the "weakest branch" and for our political system in general. I think the process does have value, but it is not for the reasons that many people might think at first.

First, it is hard to ignore the observation of Senator Arlen Specter that a nominee will answer only as many questions as he or she thinks is necessary to get confirmed. But is that bad? It should not be surprising to anyone that, when the same party controls the Presidency and the Congress, a nominee will be given more latitude and it is really his or her nomination to lose, rather than a burden to prove that the person reaches toward the mainstream. Even where the confirmation process is friendly, it still provides an opportunity to weed out nominees that have bad temperment or really bad judgment, and I think that is the best we can hope for. Judge Alito has good judgment and good temperment, therefore he will be confirmed.

But, some may say, he is really conservative and is bound to overturn important Supreme Court precedent that protects the fundamental rights of citizens. Well, if that were an important value to most people, and if it is true that Judge Alito would in fact work against these things, then he should never have gotten nominated in the first place. The failure, then, is not the confirmation process but the political process that allowed President Bush to appoint him.

Second, no one should accept for a minute that politics does not matter when it comes to judicial decisionmaking. That is to say, the Constitution was not written in such a way that allows individuals to determine the right answer every time, entirely divorced from value. What does "cruel and unusual" mean in an objective sense? "Unreasonable" searches and seizures? Who gets to decide whether the President is "faithfully" executing the laws, and what standard do you apply to decide that? Political leanings, upbringing, morays--these things will always come into play in deciding legal questions. Judges are humans, and the law (in the sense that we talk of it being decided in courtrooms, anyway) is a human creation.

I guess my overarching point is that liberal democrats should assume the worst as far as Judge Alito's conservative views, but it is a little too late to be worrying about that. The best we can hope for is a judge that is humble and willing to recognize that the law is not black and white, and is willing to take other people's views into account. And nothing I saw in the confirmation process gave me too much cause for concern on that score.

Will Judge Alito vote to overturn, or severely cutback on, Roe? Probably. Will he often find himself in agreement with Scalia and Thomas? Probably. But those things would not make him a bad judge, in my view. What matters most to me is that he does not believe the black robe gives him special access to the truth.

Silly Libertarians

I was really hoping this article/speech by Bradley Smith, former FEC commissioner, would give me a chance to discuss the substantive objections to campaign finance reform. Then the guy referred to the Microsoft antitrust litigation as a "seemingly senseless regulatory legal assault" intended to extract campaign contributions from Microsoft. Uhh, right. It's amazing how quickly a person can drag their credibility through the gutter.

Smith's analysis of the harms of unregulated campaign money is largely limited to efforts to find quid pro quo returns on investment for corporate contributors. He takes this as far as analysis of the stock market reaction to McConnell v. FEC for companies that make political soft money contributions. What is this supposed to prove?

This sort of analysis is overly complex and makes it difficult to produce any sort of meaningful empirical data. What sort of scorecard do you use here? There is plenty of anecdotal evidence of influence (not least of which the Microsoft example that Smith himself raised). Smith acknowledges that the data he presents has many critics, but claims that since they don't have better data, that makes his data somehow valid.

A simpler analysis is this: our system is based on democratic, one person-one vote principles. Does campaign money subvert those principles? Does it give influence beyond one-vote to big money donors?

In this view the analysis of harms should be considered from the other end. Does the money influence election outcomes? According to opensecrets.org, the odds of a challenger for a house seat in 2000 beating an incumbent were nil for challengers who raised under $500k, 24:1 for challengers with $500k-$1m, 15:1 for challengers with $1m-$1.5m, and 3:1 for challengers with over $1.5m. That looks a lot like influence. Obviously there are still confounding factors here (primarily that one might suppose that campaign money flows to more attractive candidates). But this seems like more meaningful data than the sort referenced by Smith. Additionally you've got quotes like this one (one of my all-time favorites) from Senator Fritz Hollings:

"The body politic has got a cancer of money. I ran in 1998, and I raised $8.5 million. That's about $30,000 a week, each week, every week, for six years. If I missed Christmas and New Year's weeks, I'm $100,000 in the hole. So the race begins the next day [after your election]. We're collecting for six years out. That means we don't work on Monday. We don't work on Friday. I've got to get money, money, money, money. And I only listen to the people who give me money. With the shortage of time and everything else, you've got to listen to the $1,000 givers. I mean, no individual is corrupt, but the body has been corrupted."

It seems, to me at least, fairly obvious that money impacts election results. It seems also obvious that this gives political power to people who wield that money. That is problematic for a one person-one vote system. Smith never discusses this problem.

But he does talk about other evidence of corruption, apparently to show that BCRA is insincere. The hiring of spouses and children of politicians as lobbyists, contributions to personal foundations, and book contracts, for example. Frankly this only amplifies the need for regulation of money in politics. If anything this should support expanding BCRA into broader territory.

Smith criticizes McCain for speaking at a fund-raising dinner for the Brennan Center that raised money to support BCRA and to help defend it against McConnell's legal challenge. Apparently McCain also raises money to support campaign finance reform through his own Reform Institute. This is the sort of self-defeating argument often leveled at McCain and Feingold and other finance reformers: how can they argue for campaign finance reform when they accept the sort of contributions they argue against? A better question would be: if their argument is premised on the fact that the current political environment makes it necessary to raise large sums of money to get anything accomplished, how could McCain and Feingold hope to accomplish anything without raising money? Only people in the system can change the system. They have to play the game to change the rules. And ultimately this is not a discussion of the substantive merits of the issue anyway. It is merely smear attack against proponents of reform.

Here's an interesting thought I'd like to see some of these folks discuss. The Supreme Court appears to be increasingly coming under the control of Scalian originalists. There is a strong argument to be made that the original meaning for the First Amendment was merely to prevent prior restraint of speech. This was a system used in England where printers needed to get prior government authorization of material to be printed. The Sedition Act of 1798, for example, seems to our sensibilities to be a clear violation of the First Amendment. But no one seriously thought it was a violation at the time, and the courts never struck it down. The Republican (Jeffersonian) reaction against the Act was politically motivated (it was a Federalist device to squelch Republican press) and focused on the issue of federalism rather than the First Amendment. It did not implement prior restraint, and it allowed truth as a defense. This was free speech as compared to the English system. An originalist interpretation of the First Amendment would create a tremendous amount of breathing room for campaign regulation. I wonder how keen some of the conservative court cheerleaders would be for that..

Memo to South Korea

Dear South Korea,

Apparently you have not figured out how this antitrust thing works. The proper procedure after you find Microsoft guilty of multiple antitrust violations is to roll over and play dead. Alternately you could send Bill Gates a fruit cake. Certainly you don't make them remove Windows Messenger from their operating system, because that harms customers, who obviously have no reason to want Windows without Messenger. Please try to learn from our example.

Thanks,
U.S. Department of Justice, Antitrust Division

Another Leak Investigation?

In the wake of the Washington Post's story on the CIA's secret detention facilities, it appears that we may see another high profile leak investigation. The CIA has requested that DOJ investigate the matter and pursue criminal charges for the release of classified information. Likewise (also mentioned in the NYT story) several top House and Senate Republicans have called for a joint Intelligence Committee investigation into the leak. Already several reports are drawing comparisons to the Judy Miller story (see Howard Kurtz's 11/14 column). I think this story would provide an excellent contrast to the Miller story.

The problem with Judy Miller's effort to hide behind press secrecy protection is that the facts of her case flew in the face of the intent of such protections. The idea is to protect whistle blowers and encourage them to bring to light topics, otherwise hidden from the public, that may be critical to the public discourse and democratic oversight of government actions. Judy Miller exposed details meant to crucify one such whistle blower, details that were otherwise irrelevant to the public discourse. Nor was it a simple or direct impeachment of Joe Wilson's credibility or an attack on the substance of his reports. The Plame story was simply an effort create insinuations about Wilson's qualifications and generally besmirch his reputation and possibly (depending on what you're willing to believe about Libby and Rove) to exact revenge by ruining Plame's career. Hardly a lofty testament to the value of an independent press.

The Post's CIA detainee story, by contrast, contained exactly the sort of critical information that the public deserves to see, and should be given every available legal protection. This is not to say that there should be no oversight of how classified information is exposed or that press organizations should not exercise caution in disclosing it (as the Post did in refusing to name the countries where the detainment centers are located). This was information that the public did not know and had no reason to suspect about government policies that go directly to the heart of what our values are and how we conduct ourselves.

This will admittedly cause difficulties for the CIA in its effort to continue to pursue these policies, difficulties that the CIA can claim impair its mission and endanger national security, but these difficulties arise from the outrageousness of the conduct itself. I fail to see how the exposure of this information will in any way impact on the actions of Al Qaeda relative to the CIA, nor the actions of the CIA relative to Al Qaeda, except to the extent that this is now propaganda for Al Qaeda and a source of domestic and international political problems for the CIA. This is not the case of an agent or undercover program that, once exposed, can no longer no long serve the assigned mission. Secrecy is not critical to the function of a prison camp. The exposure of these policies hurt the U.S. and the CIA not because it imposes functional problems, but because the policies are stupid.

The only reason they were likely secret in the first place was probably to avoid political fallout, in both the U.S. and the host countries. That is not, to my mind, a valid reason for government secrecy. If a democratic country allows its government to conceal its actions because the public would not like those actions, something has gone seriously wrong. If some investigation does arise from this leak, I certainly hope that a critical element of that investigation is to discover why exactly the public did not know about these facilities prior to the leak and to inquire into the validity of the profferred justifications for concealing the facilities.

Analyzing Alito

In the Washington Post, Cass Sunstein provides a measured look at Alito's appellate record. I have no doubt that we have a major political battle at hand, but Democrats will face a tough challenge in that Alito's record does not look to be any more conservative than Scalia's, and, by Sunstein's analysis, it might be less so. How would a filibuster be justified here when Scalia was confirmed 98-0? There will likely have to be arguments external to the judge's personal record, in reference to the overall balance of the Court or some such thing. This may take the form of arguments that Alito is not just taking any seat on the Court, but he is replacing O'Connor, a relative moderate, in whose mold the replacement should be cast. I've seen this argument implied in several places already, and I'm not sure it makes much sense. It is difficult to find historical or policy justifications for the idea that the Court needs to adhere to some particular partisan structure or another. In general I think this will be a tough fight for the opposition. Their best approach will probably be to tie this nomination as closely as possible to the White House and try to make the confirmation into a referendum on George Bush to capitalize on his falling popularity.

Update: On Alito-Scalia comparisons, Robert Gordon of the Center for American Progress (a liber think-tank) makes the case on Slate that Alito is more extreme than Scalia.

Update (11/02): For some balance, here a CSM story suggests that Alito is not a hardliner on abortion.

Yet Another Update (11/03): I had to add a link to this rebuttal to the CSM column UVA's own Richard Schragger.

Friendly Fire

The more this Harriet Miers thing goes on, the funnier I think it is. Like this article on Laura Bush rebuffing Miers critics. What could be funnier than this scenario: The White House nominates a lame candidate. Conservatives criticize the candidate. The White House, as it has done a hundred times before, responds to criticism by shooting the messenger. Conservative critics say, "Hey! Wait a second! It's us! Hold your fire. We're not sexist pigs!" Pure comedy.

A Spirited Debate on Civil Rights

I happened across this Legal Affairs magazine debate on the Patriot Act between Chicago Professor Geoffrey Stone (against) and Judge Richard Posner (for). Both make some good points and fire off some nice jabs. My favorite exchange:

Posner: "My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless."

Stone: "Let's see, how does it go: A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC."

George and Harriet Sittin' In a Tree...

This stuff just makes me laugh. I think the confirmation hearings are going to be a lot more fun this time around.

Spoiling For A Fight

So John Roberts is the nominee, and now the circus begins. I don't know as much about the man as I'd like (although I saw him speak here a few months ago and was very impressed), but I'm disappointed by the knee-jerk reactions of liberal groups. The Kossacks are predictably upset, MoveOn has already started a mail-in campaign to reject him. I got an email for Human Rights Campaign to tell me that Roberts' nomination puts our rights in "grave danger." Much of the criticism apparently focuses on things Roberts did as an attorney in private practice and in the Solicitor General's office. I'm pretty sure Deputy Solicitor Generals don't make policy, and it seems to me that I once knew an attorney who defended a large corporation in a mass toxic tort case, and I'm pretty sure he wasn't a corporate shill.

The question that keeps coming to me is: who would you rather have? Who do these people expect will be nominated if Roberts is rejected? Roberts is obviously a very smart and talented man, and he doesn't strike me as an ideologue. Yes, he is a conservative, but this is a Republican administration. Was anyone expecting a liberal? Is this just a fight for the sake of fighting?

I have been very excited by the rise of a populist liberal movement on the internet, and to some extent I still am. But lately I'm beginning to wonder if it is possible for a populist movement to be sustained without devolving into partisan extremism. I can hardly read Kos anymore without wanting to throw things at my computer. It seems everything is a conspiracy, and everyone is out to get them. I don't begrudge far-left die-hards their right to have an online community, but is there any liberal community left that isn't dedicated to this level of pointless partisan bickering? Maybe there's one out there that I just haven't discovered yet. But it seems that the liberal populist movement is increasingly mirroring the conservative populist movement, and that both seem to be subject to a strong drift towards partisan extremism. It may be that this is an inevitable result of Sunstinian group-reinforcement.

I guess I should note that I haven't gone establishment. I'm still as anti-establishment as the next guy. But my problem with the establishment has never been that it isn't liberal enough; it's that it's too fake, too staged, too deeply engaged in politicking without enough consideration for the policy that is supposed to result from politics. It seems to me that this is exactly the problem that comes from the knee-jerk response against John Roberts. I don't see any consideration of what comes from winning (i.e. how would the next nominee be better than Roberts), there's just a strong desire to beat the other side. It's not a results-based response, it's purely political. It signals an approach that will never be interested compromise or in building common ground across political boundaries. That's disappointing. It's important to fight when there's need for it (say, plans for an ill-advised war), but that doesn't mean you have to fight all the time about everything.

Restorative Justice in New Zealand

Restorative justice is something my dad has been interested in for a while now, and it seems like a good idea to me. CSM has a story about restorative justice in New Zealand, as well as some of the things New Zealand has done to integrate the native Maori culture into daily life. New Zealand is a pretty cool place in my book...

Re: Insufficiently checked and balanced?

First, I apologize it has taken me awhile to offer a response to Ryan's post. Second, as I stated in my brief comment, I do not purport to be a constitutional or legal scholar but hopefully I can offer something useful.

As best I can tell, the short answer to your question, Ryan, is that the founders did not even consider election of judges at the time they drafted the Constitution. In the Federalist Papers, No. 76, Alexander Hamilton wrote that

It will be agreed on all hands that the power of appointment, in ordinary cases can be properly modified only in one of three ways. If ought either to be vested in a single man, or in a select assembly of a moderate number, or in a single man with the concurrence of such an assembly.

Of course, as you point out, all hands would no longer agree those are the only options for selecting judges that are on the table. To be sure, other methods of selection might more properly be referred to as something other than "appointment." Two other models have been implemented in the United States: election and merit selection. (For more background on these other methods, see these materials posted in connection with Frontline's special titled, "Justice For Sale.") To avoid this post becoming too unmanageable, I will focus upon the election of judges -- in particular, the election of appellate judges.

The election of trial or magistrate judges has a very long history -- too long to trace its source by this amateur historian. According to this article (again from materials provided by Frontline), Mississippi was the first state to require the election of all judges (in 1832). Many states followed course, particularly in the period between 1846 and 1860, during which period many states revamped their state constitutions. According to this press release by the Brennan Center for Justice at the NYU School of Law, as of 2002 38 states, representing 87% of all state judges, use elections to select judges. In 18 of these 38 states, judges are initially selected by election; in the remainder judges are appointed and then must be reelected to stay in office.

There is too sizable a debate to summarize here all the reasons in support of and against each methods of selecting judges. The argument I would make against the election of judges conforms with the reasons Hamilton offered in No. 78 of the Federalist Papers, but a brief lead-in is first necessary. I assume the election of judges entails not only the initial selection of judges, but also their periodic reelection -- as far as I can ascertain, no state has ever instituted a system by which judges are initially selected and remain in office "during good behavior," the standard the Constitution provides for Article III judges.

In my view, the harm of electing judges comes about by subjecting the interpretation and application of the law to the same public pressure as is responsible for crafting of the law. Assume a narrow majority succeeds in promulgating some vague standard of behavior to which all citizens must comply -- insert any controversial issue of your choice, particularly those involving criminal behavior or health and safety standards (euthanasia, abortion, and the prohibition of recreational drugs come to mind). Assume also that a harsher standard could not have garnered a majority. It is reasonable to expect, and experience confirms, that judges will often favor the harshest reading of the law that can be reasonably extracted from the text (and sometimes even unreasonable interpretations too) out of concern for getting reelected. The concern, to frame it differently, is that judicial interpretation plays less in most electors' minds than does outcome -- a tendency I suspect often factors into the decisions of elected judges. That concern is more significant where the law to be interpreted is a constitution, which serves in part to protect the rights of the minority.

My argument against election of judges, therefore, depends more upon the value of the life tenure of judges than it does upon how they are initially selected. I entirely agree with the sentiments expressed by Hamilton when he stated that

The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is no a less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

Here (in RealMedia format) is a video excerpt of an interview with Justices Kennedy and Breyer displaying some hostility to the concept of election of judges.

I would be happy to elaborate upon any points I made here or, for that matter, upon points I missed. More important, I would be very happy to learn what you think.

Insufficiently checked and balanced?

I have a question for you legal/constitutional experts out there: Why are supreme court justices appointed and not elected? What did the framers have in mind when they made these appointed positions? It seems logical to me that if the judicial branch is to be able to check and balance the other branches of government, then they should be elected independently by the people of the United States. I realize this wouldn't be a practical measure for all federal judge positions, but one might at least consider it for the supreme court. As it stands now, it seems that the executive and legislative branches have too much say in the makeup of the court. One could argue, however, that requiring the other two branches of government to agree on a judge creates a balanced enough approach. On the other hand, what would the ramifications be if justices were subject to general election? I would love to hear your comments.

A Reasonable Outcome on Grokster

The Supreme Court today announced their opinion reversing a summary judgment for Grokster. I'm not displeased with the outcome. They made no reference to Aimster's willful blindness doctrine (which I thought should control the case), but came to a similar conclusion, finding the demonstrated intent of the defendants to be the key to their determination. As I stated back in March, consideration of intent is a necessary addition to Sony without which Sony is easily gamed and unmanageable. Here it was clear by the defendants' actions in aggressively recruiting Napster users and promoting infringing material available on their networks (actions that were curiously absent from the discussion in the 9th Circuit decision) that it was their objective to profit from the infringment of copyrights. Sony could not stand if it was read to protect such actions.

One of the most interesting questions of the case, whether Grokster and Morpheus had substantial noninfringing uses, was not decided by the Court and was argued at length in the concurrences. Justice Ginsburg (joined by Rehnquist and Kennedy) wrote a concurrence arguing that they did not have a substantial noninfringing use, while Justice Breyer (joined by O'Connor and Stevens) argued that they did have substantial noninfringing uses. I agree with Breyer's arguments for a low bar on substantial noninfringing uses, particularly in conjunction with consideration of intent as in this case and Aimster. To have a high bar for substantial noninfringing uses that sets some sort of a cutoff based on the percentages of use creates a real problem for developers of new technologies who cannot accurately predict how exactly their technologies will be used. There would be a definite chilling effect on technological innovation. Policing intent should provide a sufficient avenue for nailing bad actors.