Main

April 23, 2008

Quick notes on the oral arguments for Giles v. California

You know how when a law professor makes an inane, pointless and/or poorly worded comment in class, and you look at your fellow classmates and see expressions of confusion mixed with disinterest and apathy? The Supreme Court is kind of the opposite of that.

UPDATE AND NOTE TO SELF: I should stop writing these things when I haven't slept in 36 hours. You know how sometimes people are listening to something, and they all have dumb stares because they're inattentive and don't understand what's going on? The Supreme Court was the opposite of that. Somebody would say something and I'd think "that's unbelievably smart." That's what I meant.

April 12, 2007

My favorite word these days

Attenuated.

January 11, 2006

Sam Alito: Finally, why we should care - and why we're going to lose

I don't know about you, but I have to say that I've had a hard time getting it up for the Sam Alito nomination. I mean, Roberts was fascinating, Miers was hilarious, and I don't know if I can take really caring about a third Bush Supreme Court nominee in a row. So I figured he would make it onto the Court, I wouldn't really care, and sooner or later a dark conservative cloud would come over America. The curiousity, then, was why I didn't care.

Paul Waldman, the senior fellow at Media Matters, the founder of Gadflyer, and one of the references on my law school apps, may have some answers. He just wrote a really fantastic article for tompaine.com about the Alito nomination, why we should care, and how the Democrats can get a win out of this. First, he shows how Democrats, per usual, are focusing on the wrong message for no real reason:

It seems pretty clear that Alito should have recused himself from any cases involving Vanguard. So what’s wrong with making this such a key part of the campaign against him? The problem is twofold. First of all, liberals are going to have an exceedingly hard time convincing large numbers of people that Alito is some kind of crook. ... Like it or not, to most Americans the recusal issue will seem too technical and nit-picky.

Secondly, this issue says nothing about the fundamental debate progressives should want Americans to be having about this nomination. The Alito nomination isn’t about whether the Supreme Court will follow legal ethics on recusal, it’s about whether abortion will be legal, about whether civil rights and liberties will be maintained, about whether the head of our government is a president or a king.


Does that ever freak you out as much as it does me? Sometimes I get the feeling that national Democrats decide something absurd like prescription drug care is the issue that's gonna bring this one home, and then they insist that everyone stay on that one message no matter what happens, what changes, what race you're running, or whether making a secondary issue your only issue sounds ridiculous. Evil U.S. Rep. Anne Northup (R-KY) has made a career out of doing personalized, individualized campaigns. It works. Point being, you have to figure out what people actually care about, and make sure they know where you and your opponent stand. Waldman points out the problem with the Alito pushback:
So what is the one thing Democrats and liberals want you to believe about Samuel Alito, the one reason he should not be on the Supreme Court? Is it that Alito is unethical, or that he’ll overturn Roe, or that he’ll let the government intrude on your privacy, or that he’ll give the executive branch unfettered authority? To return to the Kerry analogy, the story has it that at one point during the campaign Paul Begala went to Kerry headquarters, and in a meeting with some of the senior staff, he wrote out a number of central themes the campaign could employ. Pick one, he begged them—I don’t care which one you pick, but pick one.

Man, can I tell you how much regret I have looking at that sentence? We can't take back the past, but we sure can win the future. But not if Democrats talk like this:
The first thing that George Bush and Mike DeWine have to do is end their addiction to drug company money. Once you do that, then you can put on the table all of the issues that we need to address to bring down the cost of prescription drugs.

There is a prohibition in the Medicare drug bill on allowing the government to negotiate drug prices on the behalf of 30 million or 40 million Medicare beneficiaries. That's the most important change to make. But the drug industry is not going to let their acolytes - those elected officials they've helped so much - make any major changes that might in some ways make a dent in drug company profits.


This is an interview that MyDD did with Ohio Senate hopeful Sherrod Brown a few months back. Good guy, if he's the nominee I'm behind him all the way, but I mean, come on. Protip #1: Start with your best answer. No one gives a shit where someone's money comes from. Seriously. Can you think of an election where somebody lost because they got their money from drug companies or Hollywood liberals. Of course not. Again, I'm sure I'm not half the politician Sherrod Brown is, but no one cares. Stop talking about it.

His second point is better, but he falls victim to the next prominent Democratic malaise. Protip #2: Make sense. It took me a while on Team Tony in 2004 to phrase Brown's point here effectively, and here it is: when you buy in bulk, you get lower prices. Since the government buys a lot of stuff in bulk, they almost always negotiate lower prices. In fact, the one time the government doesn't negotiate for lower prices is when they cover seniors for prescription drugs in Medicare. That's right: the drug companies set the prices, and the federal government can't do anything about it. We need to take this Republican Medicare plan, scrap it, and start over.

How hard is that? But this other part is even worse:

Singer: Let's look at the primary, just briefly. This is the place where the blogosphere is very impassioned on one side or the other. Here's the difficult question: Why did it take so long to make the decision to jump in the race?

Brown: I was not working on any politician's timetable when I made the decision to run.


Yikes. Note that Singer, a blogger interviewing Brown for a blog, notes that bloggers are impassioned about his race. Presumably, a lot of the more influential of these impassioned bloggers will know that Sherrod Brown, a congressman since 1992, spent most of the 1980s as Ohio's Secretary of State. He's a politician. We know. We don't mind. But saying he's not working on "any politician's timetable" comes across as disingenuous. That's like me saying I'm not a law student: sure, I may have just discovered my college GPA is in the lowest quartile at NYU Law (this is true, and hilarious), but I can't go around like, "oh, I'm not one of those law students you hear about." Sorry cuz, you're a lawyer. I mean, politician.

(On the side note of the actual question, further in the interview he answers the question of why he took so long to get into the race, but he really screwed that up too. He said he wouldn't run, then Paul Hackett jumped in, and as things continued to worsen for Republicans, Brown jumped in. Come on, man.)

So that's me and message. Figure out what's important to people, phrase it well, and keep hitting it. I like to think it's just me, and Democrats aren't this bad, and Republicans aren't much better, but I suspect it's really this bad.

September 20, 2005

Your last hope for protecting the right to choose AND funny!

trial2.jpg

So liveblogging Stephen Breyer (Supreme Court justice! Live! NYU!) didn't so much as happen today, first because awesome wireless awesome bailed on me in the auditorium, and also because events suck when all you're doing is transcribing. Actually, Breyer was quite charming and witty, describing pretty well what it must be like to be a semi-normal human being who also happens to be a member of the Supreme Court. In the comedic vein, the highlight was his description of how, as the junior member of the Court, even after 11 years he has to be the one to go answer the door if someone knocks while they're in conference.

So he spent about twenty minutes disparaging John Roberts and another half hour roasting the corpse of William - actually, he didn't mention either individual, best I can recall. He did, however, make one political point I found interesting, namely that politicians flock to DC, but politicians would have a much bigger impact if they focused on state law. Breyer mentioned some obscenely high percentage of law is state law, so he concludes that state law has a greater impact.

Did I mention Breyer is awesome? He came in a pretty good-looking cream-colored suit, and I didn't even recognize him walking down the aisle. Good guy. Also, I think he's forgetting three things here:

1. Federal law affects the country, state law affects the state. So let's not forget that the much more uncommon federal law affects an average of 50 times as many people.
2. Federal law gets to cover more intellectual ground. If I cared that deeply about property taxes, I would go into state government. But there aren't a whole lot of state reps who can seriously affect intelligence or foreign policy issues, right?
3. Federal officeholders have the bully pulpit. Why, if it was a state official who brought up the issue, none of us would be eating freedom fries today!

By Breyer's rationale, political dorks like me should be headed back to state capitals to run for governor, theoretically the most important person in the most important kind of (I can't believe I'm using this word colloquially) jurisdiction. And it's not like people aren't running for governor, or that DC types don't already think that being a governor is the best preparation for the presidency. Now, I don't necessarily expect a Supreme Court justice (especially an awesome one like Breyer) not to think first of the law, but there's more than just the number of laws a politician writes, or the amount of cases it covers, that gives him political power. Just saying.

The conclusion: I am a lot smarter than a sitting Supreme Court justice. And he doesn't even have a blog!

June 11, 2005

Is Clarence Thomas Only Mostly Evil?

I think it's important that I start preparing my vast audience (Hi Mom!) for the eventual reality of all my posts being about the law. Not "about law" or "on legal matters," but "about the law." You know I'm going to be a doctor of jurisprudence when I get out, right?

Anyway, interesting column yesterday (see, now I'm calling it Saturday) from right-wing nutball commentator Charles Krauthammer. He really supports Clarence Thomas for Supreme Court Chief Justice on the basis of Thomas' focus on the founders' original intent. I think, still in the prenatal phase of my law career, that original intent is a bunch of hooey, but I do appreciate the distinction between judging based on the law and judging based on who you'd like to see win. Here's the important line:


Two years ago, Thomas (and Scalia and William Rehnquist) dissented from the court's decision to invalidate a Texas law that criminalized sodomy. Thomas explicitly wrote, "If I were a member of the Texas Legislature, I would vote to repeal it." However, since he is a judge and not a legislator, he could find no principled way to use a Constitution that is silent on this issue to strike down the law.

I'm not sure I agree with the ruling - I believe in the right to privacy, I'm not a right-wing wackjob yet - but I'll put it this way: it'd be nice if everyone could assume that judges never put their personal opinions into their professional opinions. Maybe then we wouldn't have John Cornyn attempting to justify the murder of judges when you don't support their decisions. What an SOB. Anyway, let's hope the courts move in that direction.