I should say that not everything Kerr says in the thread is wrong -- there's a subsidiary point, where he's talking about whether the government would be collaterally estopped from arguing that similar surveillance is legal in another future case, where Greenwald says they would be estopped and Kerr disagrees, and I'm with Kerr on that point.
A large part of what made Kerr so irritating was that he was largely saying things that were true but inapplicable, or that depended on an equivocal use of language.
To be estopped is to be stopped by Spanish speakers?
I felt like an Unfogged cheerleader reading that thread. Go, Lizardbreadth!
I even hurt my legs trying to do a kick, knocking over a bunch of files in the process.
A large part of what made Kerr so irritating was that he was largely saying things that were true but inapplicable, or that depended on an equivocal use of language. bullshitting
Fixed.
I will add that I thought Kerr was relatively condescending.
Mmm. The 'what, you still don't agree with me?' routine grows old quickly.
Halford was on fire -- very clear and cogent.
It was very arrogant law professorish.
He was wrong. He was side-stepping and focused on incorrect things.
The funny thing is that there were reasonably good arguments for the ruling not being a terribly big deal, if that's what he wanted to argue -- they just couldn't have been couched as a 'technical correction' to the NY Times.
Yes, I was so pleased to watch you guys demonstrate that the concepts could be clear and plain, and illuminate the disagreement precisely. And then watch people I don't know make them all complicated with the big words again, without answering the plain questions you asked.
It was very arrogant law professorish.
It occurred to me at some point in reading the thread that I could only remember a single time in law school that a professor admitted error. Despite a few other memorable occasions where they managed to box themselves into some utterly untenable positions. But at least they didn't have the smug little smirk on their faces that you just know Kerr had on his.
Halford and LB ate Kerr up.
I agree completely with Halford when he said that he lost whatever respect he had for Kerr.
Halford and LB ate Kerr up.
I agree completely with Halford when he said that he lost whatever respect he had for Kerr.
12 is correct, but 13 fails to consider all possible counter arguments, and therefore must be presumed incorrect.
What was up with the "LizardBreadth" thing? Was Kerr calling LB fat?
But at least they didn't have the smug little smirk on their faces that you just know Kerr had on his.
I'm pretty sure he was weeping quietly and occassionally moaning, "Why don't they like me?"
That was fascinatingly right on the line between a simple repeated typo, and childish needling. I figure it must have been a typo, but if it was intentional needling, Kerr's powers of acting like a nine-year-old are aweinspiring.
What was up with the "LizardBreadth" thing?
17: Did he ever figure out you are a she?
18: There's more than one thread?
LizardDepth? Surely you mean LizardLength.
Someone mentioned it later in the thread.
LizardDepth? Surely you mean LizardLength.
Either of those would be acceptable, but essear's 100 in that thread: "The LizardVolume is equal to the LizardHeight times the LizardDepth times the LizardBreadth." is right out. There are two acceptable trios and only two: length/breadth/depth; length/width/height.
He was acknowledging the sweeping scope of your reptilian lies arguments.
The discussion proves the law of psychology that the more explicitly you ask an antagonist to, "just say you were wrong about X," the less likely you are to get the desired response.
Does nosflow comment in these other "threads"? 'Cause I'm thinking about switching.
26:But I think nosflow uses a pseudonym on other blogs, so ssshhhh.
Now that the CT thread is closed, we will never know whether Greenwald's research assistant has caselaw citations to provide! Of course, it's not like we could just sit around all day for these phantom cites. Pshaw.
Thanks guys.
I totally agree with 1, by the way -- if he'd just been willing to say something like "yeah, sorry, I was a bit imprecise in my original post, I just meant that this ruling won't keep the government from raising certain Bush-era arguments in other cases" it would have been a-ok with me. Mostly his stubborness, tone and shady argumentative tactics and declarations of victory drove me crazy, plus his completely ignoring LBs points for like 200 comments, plus the fact that the ostensible point of the post was to celebrate the fair-mindedness of reasonable conservative Orin Kerr.
The style was totally law-professory, as Will says. F. Labs had a line (from my lurking days) to the effect of "Has any profession suffered a greater loss of prestige due to the rise of the Internet than law professors?". Sounds about right to me.
It's only because judges don't blog.
34: That's the exact story that made me think that judges were probably assholes.
I'm still pretty fond of judges, generally, at least at the trial court level which is all I personally deal with.
Off-topic GRAR: What in the name of anything holy makes someone think that they can just show a house with no notice or consent from the person renting the property? Aside from whatever the law and lease do or don't require, why would you piss off the person who controls the environment you're showing to potential buyers and who knows all the shit that's wrong with the place that you're probably not telling them about?
I should say that not everything Kerr says in the thread is wrong
Greenwald was oddly off in some respects. This is just a guess (given that I really have no clue about the merits of some aspects of the argument), but I got the sense that Kerr goaded him into going further than the facts justified. LB and Halford were more effective advocates for Greenwald's position than Greenwald was.
38: Yes. I find it somewhat understandable given that Greenwald's been under serious attack hither and yon lately. It's got to be exhausting to continue to avoid saying, "Look, just shut up, you're being an ass, this is ridiculous and I have better things to do."
LB and Halford were truly inspiring. As Megan said, supra, the capacity for plain English made them shine. Sadly, I think there are still those who believe that if you read something you can't understand, the writer must be smarter than you.
Also (though unrelated), some people think that the more words you use, the stronger your argument. The word "brief" has become a hideous oxymoron.
I also enjoyed LB and Halford. And Kerr didn't take near enough abuse for the space alien thing: does he not know that you'd have to prove the extent of your damages to get a default judgment? Of course he doesn't -- in the places he's been, people don't have to mess with trivial details like that.
I also don't think it's trivial to say that if FISA doesn't apply, the surveillance isn't illegal. And if your prima facie argument that FISA applies is -- look they say this thing is OK because of x.y,z, but these arguments are full of crap because of a,b,c -- then the judge saying you've made out a prima facie argument that the statute applies clearly reflects on x, y, and z. Especially if the judge has already ruled on x,y, and z as applied in similar but not identical circumstances.
Although I'm still waiting to see those cases. When are we going to have the cases?
We are never going to have the cases! It is to die! No cases, no reasoning, no going forward, at all! Completely helpless!
I also don't think it's trivial to say that if FISA doesn't apply, the surveillance isn't illegal.
Indeed. The stakes are kind of high.
You could have explained that plainly, in those terms, to Kerr, CC. I have no doubt that he'd get the "full of crap" and the "a,b,c and x,y,z" parts. You do have the cites.
I also wanted to say that there's nothing wrong with a plaintiff asking for a declaratory judgment that an affirmative defense that the other guy has asserted, but not yet pled, is invalid. I haven't read the complaint in question, but if they asked for a DJ that the program was unconstitutional (which would hardly be shocking), a judge could rule on that even if DOJ never uttered a peep. I'm not saying that this is what happened. I am saying that the notion that DOJ is the complete master of whether and when the constitutional issue gets adjudicated isn't exactly so.
44 -- I only came to the thread after it was closed.
Question for LB,
Was Kerr's argument (at least the one at the end) that the government could have offered an affirmative defense (they did break the law but they were privileged to do so) rooted in the President's war powers?
45 is a really good and important point.
Also -- and this isn't really a problem with what what Kerr actually said, but it was perhaps one implication of his overall message -- it's a little weird to say "Judge Walker's opinion didn't matter that much because he didn't address the really horribly stupid legal arguments that even the Bush Administration was too embarassed to argue in front of any actual judge," when Walker did address, and reject, the somewhat more plausible (albeit procedural) arguments the Obama administration was using to keep people harmed by the warantless telephone surveillance program out of court. That's a pretty big deal.
47 -- I think you can fairly say that because Judge Walker did not address whether space aliens can or did confer on the NSA the authority to conduct unconstitutional surveillance, Prof. Kerr would argue that the government is free to present that argument in future cases.
Wow, respect for Kerr down to zero and still falling. Farrell too. That was amazingly pathetic.
Having just now read all 503 comments in that awful thread, I'm having a very difficult time understanding the psychological motivations of one Professor Orin S. Kerr. He's obviously very intelligent. He doesn't appear to be trolling, exactly--I think he believes he's arguing in good faith. I could be wrong about that, I guess, but what would be the motive? And the taunting about the case law was especially childish. I don't think it's as simple as 25. But I'm really disturbed by this, much more than I'd care to be. I want to know what's going on inside his head, and I'm afraid it's going to eat at me until I can come up with some plausible explanation.
Only sort-of related, it takes quite a bit of, um... bravado?, to write, in the very same comment, both "I think torture is horrible, evil, terrible, bad, wrong, and awful" and "I say we waterboard". I know the second statement was offered in response to a hypothetical, but gosh, Professor Kerr, I don't think you're using all those adjectives in quite the ordinary way.
One commits to a worldview: the government needs broad power to protect us from terrorists, and I am a smart rational objective person, unlike most people who are bomb-throwing partisans. Also, I am fundamentally right about things and so if I am caught in an error it must by definition be minor and technical, and my seemingly bizarre decision to turn attention on irrelevant and ridiculous arguments actually reveals my commitment to the most important truths.
Only sort-of related, it takes quite a bit of, um... bravado?, to write, in the very same comment, both "I think torture is horrible, evil, terrible, bad, wrong, and awful" and "I say we waterboard".
I don't know which astonished me more: the fact that he did what you say, or the fact that he brought up that specific hypothetical on Crooked Timber of all places. Talk about needing to RTFA!
I took Law and Philosophy when I was in law school, with a sort of sweet old guy, and I remember being super frustrated with that hypothetical. We spent ages on it, two or three weeks, and it would come up again from time to time. This was long before I knew you guys or that other people object to that hypothetical. I didn't mind it for real philosophical reasons. But even then I hated it. I still remember thinking, "You know what? That NEVER FUCKING HAPPENS. I am NEVER in possession of a terrorist with a ticking bomb hidden somewhere. This will never be a problem I face."
I remember wishing that a class on Law and Philosophy could address real problems that come up for actual people, like what it means that there is no balancing test for the ESA. Is that the right grant of power? Or what it means that corporations are persons. I knew there had to be actually useful philosophical questions out there and I couldn't believe we were still discussing whether we should torture a terrorist. Waste of my time.
As far as what Kerr was thinking, I think he must just be stuck in some kind of law professorial mode: You must always back your students down and assert dominance over them, and you can always make things more complex until they can't follow you, then declare victory. Kerr's most insanely annoying - yet most revealing - comment in that whole thread was his 498: "Those are some very poor grounds on which to try to distinguish my cases, I think. But rather than focus on my cases, lets focus on yours. What cases do you rely on?" The first sentence asserts his right to judge LB's argument without having to justify his judgment; and the second sentence asserts that only he will decide what's under discussion, and that he rules his own possible flaws out of bounds. Only someone totally corrupted by being accustomed to getting the dominant position and the last word would be butt-dumb enough to try that in an internet discussion where you actually have to persuade people in order to win, not just display your dominance.
Of course, Kerr's approach can work in a classroom setting, where you're officially in charge and all the students have to be submissive, but in an open discussion of equals, it just makes you look like a douchebag.
Things this thread is making me glad I didn't do:
1. Read that CT thread.
2. Go to law school.
I just got done reading that whole thread. This isn't the first time I've had this thought, but: LB, I admire you greatly.
Speaking of Crooked Timber threads, I see that in a different one Witt described a post I wrote as "a perfect example of a locally informed blogger providing depth and texture to existing mainstream news reports." Thanks, Witt!
Bloody hell, that CT thread went to 500 comments? I found the original post and first ten-twenty comments or so already annoying enough to make me lose the will to live.
51, Brock: surely his motivations aren't that diffcult: asshole rightwinger finally encounters an audience that doesn't reinforce his worldview, has trouble adjusting? He certainly has the mindset down pat: "if you make a tiny mistake I've won. If my entire argument has been invalidated but I can think of an even worse one you haven't taken the time to invalidate yet, I've also won".
Skimming the CT thread, did it really end up with Kerr talking about a ticking time bomb hypothetical? Seriously? As I said before, these posts about VC have that olde-timey feeling to them; I'm glad Henry responded with the appropriate linkage.
I'm saving that CT thread for when I retire.
Generally people think that the day after they retire should be pleasant and relaxing. But it takes all kinds.
Anyway, I also thought LB and Halford did great. I guess I appreciate that Kerr stuck with it and didn't descend into pure trolling craziness but he really didn't do himself any favors, or for that matter bear out Henry's initial defense of him very well. The basic mark of someone worth defending as a dialogic partner despite considerable ideological distance from oneself is that at some point in a conversation they'll say, "You know, that's a good point, and I really may be wrong about this issue" when there is just too much stacked against their interpretation of the issues. Kerr didn't live up to that basic mark.
Damn - I'm waiting with bated breath to see whether LB and/or Halford come back with some unanswerable "I happen to have Marshall McLuhan right here..." case-law that definitively wipes the smirk off Kerr's face, and then Farrell goes and closes the thread. Suspicious timing, if you ask me.
No doubt Kerr's telling himself that he won, but I can't see that he ever successfully responded to the following from LB:
And my point from the beginning of the thread is that Judge Walker couldn't have granted relief to plaintiffs without holding that electronic surveillance without a warrant is unlawful--I can't follow you when you distinguish that holding from a holding that "the program" (which consists of warrantless electronic surveillance) is unlawful.
There was some stuff later on from some guy to the effect that we need to distinguish Walker's holding as illegal this instance of warrantless surveillance from Walker's holding to be illegal warrantless surveillance in general, but on what basis would the former be held to be illegal by Walker if not on the basis of accepting some argument that the latter is illegal? (On the basis that the particular instance of surveillance was conducted by an agency with a name starting with "N", or what?) And if the particular instance was being held to be illegal on the basis of the judge's accepting some such argument for the general claim of illegality, then isn't that tantamount to the judge's holding warrantless surveillance in general to be illegal? In ordinary discourse, the answer would have to be "yes", wouldn't it?
(That doesn't rule out the possibility that the judge would have to explicitly affirm the general claim of illegality to count technically, in some legal sense, as having made a judgement with respect to it. Sounds like an unlikely standard, but IANAL*. But even if so, that would make Kerr's claims at best technically true while being substantively misleading, as some other guy pointed out.)
Anyway, didn't mean to rehash the whole thread - I just wanted to say: well done, dynamic duo from Unfogged.
*Means "I am not a lawyer, but I am anal", right?
63. Henry apologised on another thread and explained that CT have an automated shutoff on comments after 5 days, so nothing sinister there.
As far as what Kerr was thinking, I think he must just be stuck in some kind of law professorial mode: You must always back your students down and assert dominance over them, and you can always make things more complex until they can't follow you, then declare victory. Kerr's most insanely annoying - yet most revealing - comment in that whole thread was his 498: "Those are some very poor grounds on which to try to distinguish my cases, I think. But rather than focus on my cases, lets focus on yours. What cases do you rely on?" The first sentence asserts his right to judge LB's argument without having to justify his judgment; and the second sentence asserts that only he will decide what's under discussion, and that he rules his own possible flaws out of bounds. Only someone totally corrupted by being accustomed to getting the dominant position and the last word would be butt-dumb enough to try that in an internet discussion where you actually have to persuade people in order to win, not just display your dominance.
I guess that's possible; I don't think I ever had a professor like that. Sounds like an asshole. But what would motivate that sort of behavior?
I don't really find 59.2 convicing. I completely agree with your characterization of his mindset: "if you make a tiny mistake I've won. If my entire argument has been invalidated but I can think of an even worse one you haven't taken the time to invalidate yet, I've also won", but I'm not sure how an intelligent person arguing in good faith could have that mindset.
Of course, maybe it wasn't good faith. But then what was it?
(And, while I agree that 498 was insanely annoying and revealing, surely the award has to go to 477.4: "(By the way, are we all in agreement by now that I was right in my view of Judge Walker's opinion, and that Glenn Greewald was wrong?)"
My favorite is still show me the cases [that show that the plaintiff had the burden of proving that the surveillance was unlawful, that one way a plaintiff might meet that burden would be to show that the publicly proffered defenses for the conduct do not render it lawful, and that if a plaintiff attempts this and the court finds that the burden has been met, one can say that the court has considered the publicly proffered theories].
On the other hand, I thought GG's demand for an answer whether the Administration committed crimes was pretty weak, and that Kerr gave it the appropriate brush-off.
I almost never read CT, and each comment by HF confirmed the wisdom of that course of action.
56.2: Amen.
58: Oh good. I was deliberately oblique because I have trouble remembering what pseudonym people like connected with which blog, and I couldn't remember if you did/do post as yourself (that is, as Teo) over at CT and if so if you wanted to be publicly linked with the other...anyway. Glad you are OK with how I did it. The point stands, regardless.
I had exactly the same thought as 66.last. And then I'm howling and holding my head and thinking "No... don't... you'll only encourage him, aww... nuts" on reading 'Isocrates' at 489 on the CT thread say:
Sigh. Perhaps you were correct on the technical issue, all along, but coming to that understanding does next to nothing for your credibility now, in light of your tactics along the way--you've done little to refute the accusation that you argue in bad faith. So even if your critics here concede your technical victory over Greenwald...
There may or may not be a technical issue that Kerr can say he was somehow right about, but using the definite article and the phrase "all along" makes it sound like that was a salient issue right from the beginning, when what was really salient was how artfully misleading Kerr's original claim was.
Kerr's probably pleased that people think he's a bastard, as long as they think he's a winner too.
When a critical mass of Crooked Timber commenters began showing up regularly at EotAW, I pretty much stopped blogging. So that's a point in CT's favor, I think.
I almost never read CT, and each comment by HF confirmed the wisdom of that course of action.
HF came off unfortunately badly in that thread; he was both wrong generally and yet responding to some people who were even wronger, so that he maintained a belief in his relative rightness, which was a pity.
(It is hilariously funny how often D^2 gets quoted against CT front pagers; there must be some charter or something out there.)
what would motivate that sort of behavior?
One of my thesis advisors would take on this personality in his classroom, occasionally also in one-on-one disagreements. I think that "who are you to challenge your betters?" was behind it. In cases where he identified strongly with an argument or felt that analysis of a particular case was of general interest, direct confrontation definitely brought out the condescending authoritarian.
It's a pretty common tactic in disputes for power or resources also-- align your claims with past winners, denigrate opponents. You wouldn't do it on say an open panel, though.
LB, how you managed to maintain a god-humored tone throughout that thread is beyond my understanding.
I figure her years of internet commenting have given her the training to stand firm but not be an asshole. It is very advanced technique; few ever master it.
I sort of assumed that LB had adopted her courtroom manner for the argument.
She seems genuinely to enjoy exchanges of the sort that would have me whimpering under the bed within five minutes. I'm bad at confrontation, even online.
|| Now officially just a few more months of masturbating to Stevens' tenure on the Supreme Court. |>
Having just now read all 503 comments in that awful thread, I'm having a very difficult time understanding the psychological motivations of one Professor Orin S. Kerr. He's obviously very intelligent. He doesn't appear to be trolling, exactly--I think he believes he's arguing in good faith. I could be wrong about that, I guess, but what would be the motive? And the taunting about the case law was especially childish. I don't think it's as simple as 25. But I'm really disturbed by this, much more than I'd care to be. I want to know what's going on inside his head, and I'm afraid it's going to eat at me until I can come up with some plausible explanation.
This is uncharitable to Kerr, but you asked.
I think a big part of how he acted is a law professor, "Don't question your betters!", kind of thing. But I can put together a reasonable political motive both for the initial bullshit post, and for the passionate defense of its absolute rightness -- it can be dishonest or self-deceptive if you want to believe in his good faith, either way.
Henry thinks of Kerr as a conservative honest broker -- sure, not with politics Henry believes in, but honest and truthful on matters within his legal expertise, and mostly devoted to giving expert legal opinion rather than selling a political line. Start from the assumption that Kerr values that reputation, and wants to keep it, but also wants to use it to advance Republican political goals.
One way for him to do that is, with respect to all the Bush Administration insane legal positions, for him to say that he disagrees with the crazy position (so sane people will think well of him, and think he's willing to speak up against Republican interests), but to couch the legal disagreements as difficult, technical legal issues over which reasonable people can disagree, and consistently claim that people like Greenwald attacking the Bush Administration legal positions are ignorant or dishonest on technical points of the law.
He supports the people advocating crazy positions by describing them as people he has a reasonable, technical disagreement with, he cuts down the opposition by saying that although he agrees with them on the fundamental issues, they're all personally incompetent and dishonest, and he bolsters everything he's saying because it all looks like admissions against his own interest.
73: Copious editing. If you go through your comments carefully after drafting them, and remove all occurrences of the phrase "Look, dickweed," civility becomes child's play.
I love you, LB.
(Applies equally to 78 and 79.)
78.last (cuts down the opposition) is SOP for resource disputes-- The two most common tactics are "your principal goal is unrealistic (or mistaken)" or "Agree with you in principle, but oh-so-regrettably have to go against you in practice because of complicated stuff I'm good at."
Attack the principles is the other guy is good at details, attack the details if she's good at high-level motivation.
80 last is brilliant. Umm, okay, a little more fun for me than the vast quantities of preceding brilliancies.
82:Shit. Meant 78 last, of course
Start from the assumption that Kerr values that reputation, and wants to keep it, but also wants to use it to advance Republican political goals.
That certainly helps to explain how and why Kerr spent such a goddamn long time pottering about in that thread. I've read a number of VC threads (not recently, mind you) and don't recall ever seeing him so active in debate and rebuttal. This surely must have represented some sort of reputational trial for Kerr, on a perceived professional level.
Kerr is, indeed, awfully defensive for someone who isn't responsible for the movement of bears.
So how much are the annual dues for membership in the LB Fan Club?
Start from the assumption that Kerr values that reputation, and wants to keep it, but also wants to use it to advance Republican political goals.
Your analysis following this is relatively straightforward, but this is a fairly significant starting assumption, and not one I'm prepared to accept. (The last part of the assumption, in particular. I don't disagree with the first two parts.) Why would he want to do that? This would imply that his political affiliation is driving his principles, rather than vice versa. (And even that rests on a fact I don't know for sure: is he even politically affiliated with Republicans? If not, the assumption makes even less sense.)
I guess I appreciate that Kerr stuck with it and didn't descend into pure trolling craziness
You've spent too much time online, Tim.
87: Well, you could induce it from his behavior, which is hard to explain otherwise but makes sense under that assumption.
I'm pretty sure he's a politically connected Republican -- a little googling shows that, e.g., he served as a special counsel to Sen. John Cornyn (R-TX) during Supreme Court Justice Sonia Sotomayor's confirmation proceedings.
Stevens's impending retirement is making me very sad, much sadder than I would have expected (I think I'm getting old, and, for the first time in my life, a bit nostalgic). My only consolation is the slim hope that Obama will tap Kerr to replace him.
79: From now on, in threads like that one, I'm going to mentally insert "Look dickweed" in front of every LB comment.
Well, you could induce it from his behavior, which is hard to explain otherwise but makes sense under that assumption.
Well, I agree, which is why I was trying to do the hard work of explaining it otherwise. I'm not coming up with anything psychologically persuasive, thought. And look, if your assumption is true, then Henry has no absolutely grounds for defending Kerr. In my mind, that's a very bad and dangerous person.
And look, if your assumption is true, then Henry has no absolutely grounds for defending Kerr.
Well, I certainly think Henry's wrong, but wrong is a far cry from having no grounds for your beliefs, IYSWIM. I'm psychoanalyzing Kerr down here in the comments rather than as a blogpost precisely because maybe I'm wrong and Henry's right, who knows?
90: I'm still holding out hope for Angela Davis.
Buck's rooting for a Clinton -- Hilary, Bill, whichever.
90: Me too. I am thinking things like "We shall not see his like again" without irony.
I'm psychoanalyzing Kerr down here in the comments rather than as a blogpost precisely because...
Really? I'd have guessed this was laziness and inertia (given this already-existing thread), not a calcuated decision.
98: Yeah, I called the initial post Greenwald was griping about dishonest to Kerr's "face" over at CT, because I can't see any honest reason to either say what he did, or not reformulate it to something defensible when people reacted to it. That much I'm confident about. Speculation on exactly what's driving Kerr, on the other hand -- I find my theory convincing, but I'm not a telepath, and it certainly involves a certain amount of double-double-cross-type complexity.
||
The action seems to be on this thread, so repeating this from another one:
Could any of y'all translate a short Russian phrase for me if I sent you an image of it?
Spasiba.
|>
I guess Kerr reminds me of Justice Kennedy. Concurring in the result the crazies come up with. I thought his behavior was pretty minor league in the thread, but really not that far out of the mainstream for internet discourse, and certainly not out of the mainstream for VC comment thread discourse. Not what I expected from a man in his position, but then I've certainly posted a bunch of stuff all over the place that shouldn't be expected from a man in my position either.
The comment that surprised me, and led me to downgrade him in my mind, was that no one respects both GG and OK.
And I guess he's so used to Anderson being the voice of reason that his coming to agree with OK was more or less proof that now everyone agreed with him. An interesting tell, I thought.
I was drawing a blank on Anderson -- I should probably recognize him from other blogcomments, but that's the downside of a nice, dignified, realname kind of name. Generally seemed very reasonable in the thread, although I think his final agreement with Kerr was a result of allowing Kerr to move the goalposts to collateral estoppel.
102-103: Sent it to you both. Thanks.
Lawyer from Mississippi. Comments here sometimes, very regular at VC. His agreement with OK in that thread is one of the few times I can recall disagreeing with him. But I'm not anywhere near regular enough at VC to comment on his oeuvre.
I couldn't remember if you did/do post as yourself (that is, as Teo) over at CT
I don't comment at CT at all, and actually have a general policy of not even reading the comments there. (I only saw yours because the thread showed up in my referrer logs.) I may have commented there once or twice a long time ago, and if I did I would have used the same name I use here. I generally try to keep a consistent identity in most online contexts.
And feel free to link to Gambler's House, and to connect it to my identity as teo. Of my various blogs, that's the one I really want to draw traffic and attention to.
What's really remarkable is that there was a world, not that long ago, in which John Paul Stevens was a politically connected Republican. I feel like I know that world existed, but have a hard time really imagining it.
As far as Kerr goes, I think his underlying anxiety was "I am someone who teaches law but doesn't really know much about lawyering.". Not uncommon among law profs.
NPR perplexed me by suggesting that the most liberal justice on the Court, who is guaranteed to be replaced by someone far more conservative and 100% business-friendly, was appointed by Gerald Ford. This is obviously impossible, right?
It's just more of NPR's far-left bias, ned.
107: Right, now I remember him. I spent that whole thread thinking I should know him and not quite being able to place him.
It's worth pointing out that although Kerr is distinguished in his field (he's the latest editor added to the LaFave treatises, which (a) is a pretty impressive credential and (b) means he does work with actual case law), that field is criminal procedure, not civil procedure, and what he got stuck on in the CT thread was a civil procedure issue. It's a very different world.
To 78, I think that if Kerr had engaged in any kind of of rational consideration about how to optimize his reputational position with regard to the comments thread, he'd have stayed the heck out of it, or at most limited himself to a quick "thanks, Henry, I know we don't agree on the merits of a lot of things but I appreciate the words of support." I think what actually happened is that he got stuck in a flamewar for not-fully-rational reasons, which has (ahem) happened to the best of us. I don't think he covered himself in glory once that happened. I only made it to about comment 300 of the thread myself, but it doesn't sound like there was a lot of glory after that either.
(Quasi-disclosure: I know Kerr and have worked with him professionally. He's not a bad guy to have a beer with, and I don't even like beer. On the other hand, I idolize LB, despite never having met her. So clearly I'm qualified as a neutral here.)
If it does end up being Kagan, that will be two GOP-appointed justices that Obama will have replaced with justices at least a little to their right.
Kagan would be a good step towards my vision of an all-female Supreme Court.
I'm telling you. It should be me. I am a man of great wisdom, textual sensitivity, legal perspicacity, all that shit.
For a while, during the Democratic presidential primary, I wondered how long an entirely female White House and cabinet would be shocking. I decided I would like to find out.
I have serious reservations about Kagan, but I'm the very sort of hippie this administration likes to punch so it's sure to be her.
The shift to the right we are going to see is pretty much unavoidable. No one could appoint a justice as liberal as Stevens today, and Stevens can't stay around forever. We'd be in this pickle if Clinton or Edwards were president as well.
That assumes that the rightwing justices are immortal.
Kagan went to my high school, eleven years before I did. Not that that's enough reason to support her.
The shift to the right we are going to see is pretty much unavoidable. No one could appoint a justice as liberal as Stevens today, and Stevens can't stay around forever. We'd be in this pickle if Clinton or Edwards were president as well.
What if you were president? Who would you appoint?
Paula Abdul went to my high school, a few years before I did. Reason enough for me.
120: Not quite. They merely walk among the undead.
119: Although neither Stevens nor Souter were as liberal at the time of appointment as they were by the time of retirement. In both cases that apparent shift to the left is partially, but in my view not entirely, attributable to the rightward shift of the Court as a body. I do think that there are some issues (the death penalty especially) where the experience of being on the Court and deciding cases pushes Justices towards a different (and better) position over time.
113: There's also a lot of civil procedure that really isn't going to be reflected in case law, much -- even someone who works with case law is going to have a perspective that lacks some things a practitioner will know.
If I were president I would immediately resign, because I am simulatenously unqualified to be president, and unwilling to accept the moral taint that comes with being president.
That sounds like a campaign promise. Save it for 2012.
You wouldn't appoint Paula Abdul to Supreme Court first? She has lots of experience being on a judging panel, and she went to my high school.
I have serious reservations about Kagan
Along what lines?
As a blog enthusiast the word "Kagan" is synonymous to me with "advocate of humongous wars based on spurious evidence and obsession with manliness". Is she one of those?
Stevens actually did have a few places where he did "move left" in absolute terms, not just in relative ones. As I recall, Affirmative Action, death penalty and obscenity are examples.
But it still boggles the mind that a Republican appointed him. Wikipedia has an article on Ford's candidates and some of the issues and political pressures. Bork was apparently on the short list.
132:Ford was from the era when ideology counted less than rewarding personal friends and party hacks.
I'd make a bet, given odds, that Obama will go with a black (or Asian) man this time. 30-40% chance black man, 20% Asian (Koh?)
Or Sunstein.
129: I'm feeling really blah and unmotivated right now. Even the prospect of making dadaist decisions at the highest political level doesn't muster much enthusiasm from me.
Chrissy Hynde and Devo went to Molly's high school.
If it does end up being Kagan, that will be two GOP-appointed justices that Obama will have replaced with justices at least a little to their right
True, and yet ironically, Kagan, like Sotomayor before her, will be demonized as the most liberal (/socialist/unamerican/communist) nominee in the history of the United States.
(This is inevitable, of course, no matter who is nominated. It's still sad.)
130: Indefinite detention without trial and executive power, mostly.
133. The bookies seem to think a Jewish woman is a shoo-in. They may be wrong, but.
If I were president I would appoint myself. Xam!
Will Ferrell, Zach de la Rocha, Ezra Klein, and Dita von Teese went to my high school.
I *love* Kagan, having taken several classes taught by her when she was at U of C. I don't know all that much about her views, but she struck me as sort of a standard issue liberal. She is also very funny and personable.
Is there a concensus "dream nominee" (or even a short list) for progressives? If so, who's on it?
Serious question.
The thing that Greenwald isn't mentioning is that Obama would appoint someone like Kagan if it were Scalia that were retiring. Obama's not trying to engineer a rightward shift. I'm sure he wishes he were replacing the right side of the bench.
143: That's the problem. A democrat is going to appoint a centerist no matter what. When liberal justices resign, the court moves right. When conservative justices resign (which isn't any time soon) the court moves left, but not too far left.
134.last: Hmm, then so did fucking Judith Resnik and a foul-mouthed commenter on this blog.
141: The non-serious answer I put forward on Facebook was that since the GOP will characterize anybody Obama nominates as left of Angela Davis, he should just cut that argument off at the knees by nominating Angela Davis.
I'm a bit nervous about Kagan, but I think that Greenwald is overstating the case against her. Every single one of his specific pieces of evidence dates from her confirmation hearings or her actions as Solicitor General. I'd like to see stuff from before to make up my mind.
NB What would the legal case against detention w/o trial be if the Taliban/Al Qaeda detainees were accorded POW status? IANAL, but my impression from reading the Geneva Conventions is that that's perfectly legal.
I'm not sure that Kagan's positions as SG should be taken as solid evidence of her views. She was on track for this years ago when her circuit court confirmation got derailed. If a year or so repping the government position as SG got you a lifetime appointment, wouldn't you go along to get along?
The thing that Greenwald isn't mentioning is that Obama would appoint someone like Kagan if it were Scalia that were retiring. Obama's not trying to engineer a rightward shift. I'm sure he wishes he were replacing the right side of the bench.
He must be a total idiot.
Angela Davis
Too old. And the lack of a law degree is a problem, I think.
The thing that Greenwald isn't mentioning is that Obama would appoint someone like Kagan if it were Scalia that were retiring. Obama's not trying to engineer a rightward shift. I'm sure he wishes he were replacing the right side of the bench.
Maybe he does wish he were replacing the right side of the Court, but he's not, and he knows that nominating someone like Kagan will result in a rightward shift. I don't see the point in defending Obama's seekritly liberal good intentions in things like this.
150: I did say it was a non-serious answer.
oops my mistake, Hynde went to Molly's high school, but the Brothers Mothersbaugh went to Woodridge High School in Peninsula, Ohio.
152: I didn't think you were being serious when you said that, though.
147: That's my vague sense as well. As POWs, we'd have to treat them very differently than we are treating them, and I have no idea what the rules are for when we have to admit that a war is over and let the POWs go back home. But generally, you can hold POWs without trial, no problem.
142: Greenwald's post doesn't really say much of anything about her positions.
When she was at U of C, her scholarship was focused on First Amendment law and labor law. She then worked on domestic policy issues at the White House. And -- as far as I know -- she has never written or said much about executive power, criminal law, or international issues.
Reading through Greenwald's links, all of the criticism traces back to something she said at her confirmation hearing -- that the US could detain terrorists not captured on the battlefield as prisoners of war, rather than having to try them in civilian court.
Maybe that's a sign that she has expansive views of executive power, but I read it as more her view of what the law is, not what she thinks it should be.
Extreme darkhorse shock surprise nominee:
Marty Lederman
Don't ask me to explain this, it might get ugly. Just give me credit if it happens, and I'll explain then.
Clearly, Obama should appoint Harriet Miers.
Greenwald's cites in the post linked at 136 are to statements made in Kagan's confirmation hearings for SG and to litigation positions taken as SG. Those, especially the latter, don't reliably indicate how she would vote to decide cases as a Justice.
It's perfectly legitimate to respond, of course, that in that case we don't really have any reliable evidence of what she'd do on the bench at all, do we? And that's entirely correct -- in fact, it understates the case. Kagan was nominated to the DC Circuit by Clinton in 1999 (her nomination was delayed by Senate Republicans until after the election) and has been aware since before that time that any public statement she made could one day be used against her in nomination hearings.
If I had to guess, based in her institutional background and scholarship, I'd probably say that if she gets on the Court she'll probably vote about like Breyer on outcomes, which will indeed move the Court's average position a bit to the right and a bit in favor of the executive. (With luck she'll write tighter opinions, though.) But I don't think there's a likely scenario in which the median vote moves to the left of Breyer for a long time.
(On preview, somewhat pwned by 148, 157.)
158 would be awesome, although I have no idea what it's based on.
And the lack of a law degree is a problem, I think.
Bazz fazz!
162: Supporting Pogo's nomination, eh?
153: I did think one of the Devo dudes went there as well. Am pretty sure Rachel Sweet and a couple of Black Keys did.
If Obama wants to show that he is serious and above petty political concerns, he should nominate Orin Kerr.
166: Or one of the AG's suing over HCR.
It's worth noting that Stevens was the last justice on the Court who had a substantial professional career before the rise of the law and economics movement. In business cases, that matters a lot. 100 percent of the court now shares a common language for thinking about private law that draws heavily on Econ 101 concepts, even if they'll probably reach different conclusions on individual cases.
If Obama wants to show that he is serious and above petty political concerns, he should nominate Orin KerrLizardBreadth, whose arguments in that thread were much less helpful to the administration than Kerr's.
I think I might have asked before, but what's the deal with Law & Economics? Anyone read the Teles book? Will that answer basic questions like, what is it? Where did it start? I could go with wikipedia, but I'm looking for something with a bit deeper explanation, but sill for complete outsiders.
(Partly I ask because I've seen it referred to in certain types of legal history (in reviews of some books about the 19th century), but I don't know if they mean the same thing.)
My first choice for Justice was Malcolm McLaren, obviously, but now that's fucked.
168: Stevens did a lot of anti-trust work, correct? Not sure which "side" he was generally on.
I think LB would make a fine justice, but an even better SG if a vacancy comes up.
I'll be a little surprised if the nominee isn't a sitting Circuit judge.
171: Come to think of it, I don't know the history. I have an offhanded belief that "Law and Economics" as the modern genre of legal thought got started largely from Posner's books, but I could be way off.
an even better SG if a vacancy comes up.
Supreme … gornisht?
Wikipedia fails to identify anyone cooler than the Fleetwoods as graduates of my high school, but it wrongly states that we won the state football championship my senior year, so who knows. And I win any name-droppathon for our kids' schools in a walk.
171/175: Posner was one of the early scholars, although most Law& Econ types would trace the roots of the movement to Coase. (Judge Learned Hand is also regarded as an early-practioner, though of course the concepts weren't really developed at the time he was applying them.) But the "movement" essentially began, yes, with Posner similar sorts--as an academic collaboration between members U of Chicago's economics faculty and its law school, applying Econ. 101 analysis to legal problems. I.e., determining what the rules of law ought to be based on certain standard "economics" assumptions, and general cost-benefit analysis and "efficiency".
(There's a paradox in some of the early literature--the same paradox that runs through a lot of the Chicago-school pure econ--in that scholars both claimed that the rules of the common law, as developed, *were* the effecient rules (through some sort of legal competition among the states), and they also, separately and with a straight face, prescribed what legal rules ought to be, how they should be rewritten. This is very similar to the economists who document the inefficiencies in our perfectly-efficient ecnomic system.)
I don't know of a good history--I don't think the Teles book does it. You could just pick up Posner's book--it more or less covers the field.
Is comment 180 unusually illiterate, or is it just me?
(Judge Learned Hand is also regarded as an early-practioner, though of course the concepts weren't really developed at the time he was applying them.)
I remember that -- some opinion where he defined negligence in terms of a formula -- if the cost of a precaution is less than (the cost of damage if the bad thing happens) x (the chance of the bad thing), then it's negligent not to take it.
Ross Valory went to my high school. I think, though, that I'd prefer Neal Schon for the court.
174 I don't see how anyone could be a better SG on the issues. The job is to advocate the admin's position in court.
181: You mean unusual for your body of work, or for the comments generally? I post stuff that sloppy all the time.
What's the law and economics equivalent of an earworm? I'm now trying to remember what I was doing when I ran across a particularly annoying bit of law and economics the other day. 7th Circuit, I think, breezily explaining why businesses wouldn't do whatever bad thing it was the opinion was enabling because it would be economically irrational and competition would make them stop.
185: No, you don't.
181: Yes, that was particularly sloppy for you.
Second to Brock's suggestion: Posner's textbook is the best summary.
Maybe that's a sign that she has expansive views of executive power, but I read it as more her view of what the law is, not what she thinks it should be.
I think Greenwald would argue that you're making an unhelpful distinction here. Kagan's view of "what the law is" apparently involves a more expansive view of executive power than Greenwald's view of "what the law is."
If we're going to allow non-lawyers like me to have opinions on this stuff, I think Greenwald is right. It would be pretty dismaying for the court to rule that an executive can declare a criminal suspect to be someone with whom we are at war, and thus obviate the need for due process.
190: Yeah. And whatever issues people have with Greenwald, his observation that Democrats who were outraged at this sort of thing from Bush are shrugging it off when it comes from elected Democrats is both correct and deeply disturbing. Apparently, it isn't just the right in this country that's comfortable flirting with fascism.
190, 191 -- I think all people are saying is that the positions she's taken as a lawyer (or in confirmation hearings) may not be a very useful guide to how she'd rule on the bench. God knows my overall substantive independent view of the law isn't the same thing as every position I've ever taken on behalf of a client, and the same thing probably applies to the solicitor general. I guess it says something that she was willing to take the SGs job, but frankly it would take a pretty remarkable soul to turn down the post of SG in the Obama administration because of potential disagreements over executive power issues.
I'm now trying to remember what I was doing when I ran across a particularly annoying bit of law and economics the other day. 7th Circuit, I think, breezily explaining why businesses wouldn't do whatever bad thing it was the opinion was enabling because it would be economically irrational and competition would make them stop.
Isn't that the entirety of law and economics?
190: But I think saying something to the effect of "Under current precedent, the Supreme Court would let us get away with that" is very different than saying either (1) I think we should use that power or (2) I think the precedent is right. I don't know enough about that area of law to know whether she's right about what the law currently allows, but I know that, for example, Boumediene was not captured on the battlefield, and there were 4 votes saying that he wasn't even entitled to habeas. So I'm guessing she's right.
But, more importantly, I don't think her answer says anything at all about what she would do on the Court. She's a lawyer representing the executive branch -- the positions she takes in that role don't tell us what she really thinks.
194.1: Good point. I had forgotten that we've already had that ruling. 194.2, as Robert notes, is also reasonable.
If some reactionary asshole in Congress excoriated a Supreme Court nominee for work done on behalf of, say, a rapist or murderer, I'd be offended. Should I be similarly offended if some liberal quizzes Kagan on her advocacy done on behalf of the president?
You know how some people are accused of being whirly-eyed about Obama? I'm whirly-eyed about Greenwald. I think his contribution to the national debate is almost 100% constructive.
And this case is no exception. Given how many times we've been betrayed by hopeful readings of the intent of public figures, I'm really grateful that there's a prominent voice out there that is actually going to hold someone responsible for the positions they've espoused.
I understand she's arguing the executive branch's policy. But it's an abhorrent policy that makes me question whether I can still vote for Obama in good conscience. She's very much complicit in *the* very worst thing the Obama administration has done. Thousands of Democratic legal figures are not.
191 etc -- It's true that I don't pay much attention to politicians, but really, who's shrugging? What strong advocates have gone silent?
147 -- You might enjoy Judge Walton's Gherebi decision, and this commentary on it.
156 -- There's no dispute that law of war detention authority comes to a close when the war "ends" -- this should be the principal objection to the Goldsmith & Wittes idea that we just hold KSM as a POW. Even if no court would rule against it today, someday it's going to be impossible to maintain the fiction that there's a war on. And the case that breaks that wall isn't going to be brought by KSM; it's going to be some cook or other Yemeni minion.
Now don't get me wrong, I think it's a very dumb idea to hold a cook. But if the cook loses his case, and the Court of Appeals affirms, it's hardly the dawn of a new fascist era if the government holds the cook until the earlier of (a) the end of the war or (b) a deal with the cook's home country that allows him to go home.
If they're only going to detain without criminal trial the men that a court has specifically authorized for detention without criminal trial, an authorization subject to appeal, this is a big enough difference from GWB ca. 2002-2007 that some are shrugging isn't all that shocking.
Orin Kerr is on my website:
"FWIW, the chief lesson I drew from that thread was that it's generally difficult to debate arcane and technical legal questions with others who are (a) mostly non-lawyers and (b) already inclined to construe your legal arguments as being made in bad-faith. You make a legal argument, and they say you are being disengenuous; you ask for legal support for their argument, and they say you are acting in bad faith; you cite the cases showing your legal argument is sound, and they change the topic to something else. Repeat as necessary until thread limit reached. I specifically learned the problem with posing hypotheticals to non-lawyers. While lawyers understand hypos as ways of focusing on the core principle of the legal question -- the idea is to change irrelevant facts in a way that emphasizes the principle -- non-lawyers get distracted by the non-relevant facts and they think you're desperate or trying to change the topic....
"I think the NSA surveillance program was illegal. The problem was that the Obama Administration made a decision not to defend the lawfulness of the Bush Administration's program in this particular lawsuit. DOJ's view was that al-Haramein couldn't show that he was subject to surveillance at all, but that if he could show that he was subject to surveillance, it would not even try to argue the Bush Administration's view that the surveillance was lawful surveillance because the NSA program was lawful. This decision by DOJ meant that Judge Walker wasn't in a position to decide the lawfulness of the NSA surveillance program: Judges only decide issues that are actually disputed between the parties, so this decision meant that the lawfulness of the program wasn't before Judge Walker and did not rule on whether the NSA surveillance program was lawful. Judge Walker ruled that al_Haramein did show that he was subject to surveillance, and therefore ruled for
al_Haramein without entering a ruling on the legal question of whether the NSA surveillance program was legal or illegal. As I wrote in the post, it's a somewhat technical point, but I think it's important to understanding what the ruling did and didn't say....
"I should add, re-reading over the excerpted exchange, that I think I may have misunderstood a point LizardBreadth was making when I said, "Yes, that is my argument: That's what my post and this thread was about." Judge Walker did not say the surveillance program was unlawful, because that was not disputed by the parties, as I explain in the main post and near the end of the thread."
What do I do? Besides flee the jurisdiction in the dead of night, that is..l
Good god. He's still calling her "Lizard Breadth."
Send him to this thread? There's room for another 800 comments here, and we've got a good head start.
Figure that there are none so blind, and ignore him?
As with the police and the devil, if he entered with your permission there's nothing you can do.
Aw, geez, Brad, I wish you hadn't done that. I was ruder about him here than I would have been someplace with a broader readership, like the front page of your blog. I suppose the comment threads here are as public as anyplace on the Internet, so I can't really complain, but if you'd asked if I wanted that thread widely disseminated, I'd have said no.
Sorry, LB. I shouldn't have suggested it.
Oh, once it's posted, directing Kerr over here is fine -- if I'm going to speculate about his bad faith on the front page of Brad's blog, he's certainly entitled to respond wherever he likes. I just wouldn't have broadcast those speculations as widely as they now have been.
This is our chance to tell him that your name is really LizardBread.
He's going to revoke your invitation to blog at VC.
Apologies...
I am wondering if the right comparison is between Orin Kerr and Spiro Agnew. Spiro Agnew pleaded "nolo contendere" to the charge of taking bribes, and thereafter swore up-and-down that (i) he had not pleaded guilty and that (ii) the judge had not found him guilty.
Seems to me that (i) is "arguable--NOT! and (ii) is simply wrong: the judge reached the issue of whether he was guilty or not, noted that he had nothing to say against the indictment, and found him guilty.
Similar to Agnew, when Kerr says that Vaughn Walker did not reach the issue of whether the TSP was unlawful, Kerr is simply wrong. Vaughn Walker reached the issue, noted that the defendants had a burden of presenting evidence on that issue, noted that they had not presented evidence, and made a summary judgment that defendants had committed unlawful electronic surveillance and hence were liable...
Where does this reference to my freshman-year roommate come from?
211, 213: I usually like his writing, but yes, that was dumb.
Robert's failure to recognize that "supra" is now part of common colloquial English?
Me, I'm now thinking that the right way to deal with the big question is to say that what Glenn Greenwald should have said is:
"Orin Kerr's claim that Vaughn Walker did not find the TSP unlawful is like Spiro Agnew's claim that the judge who sentenced him had not found him guilty."
and left it at that...
Well, Di is also a lawyer. So her use of "supra" might be thought to be tainted by her professional deformation. But even so one person's praising another for using clear english doesn't have itself to be written in clear english.