Money, the Courts, and Real Priorities

A wise woman once said, "money talks, and bullshit walks." Sadly, more and more it's the money that drowns out everything when it comes to judicial elections.  But it's important to pay attention to the bullshit, too, and particularly to who is pushing it and why.

But first, let's get a few things clear.  Judges should not be elected.  They are not politicians, in the traditional sense.  They should not - and cannot - promise to voters to rule in particular ways on certain issues.  Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so.  Most often, that comes in criminal cases.

In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections.  The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way.  That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.

One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:

When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)

This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).

It's taken as a given that these ads influence voters - if not, why run them?  Ilya Somin has written a lot about the rational ignorance of voters.  That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc.  If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections.  After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?

But even worse is that evidence is mounting that the ads are changing the way judges make decisions:

A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.

* * *

Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'

While judges deny any kind of influence, numbers don't lie.  They may not be as damning as they appear at first blush, but they aren't good.  It's bad enough for a would-be judge to use "tough on crime" language to get on the bench.  It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.

The other thing, the more revealing thing, about all this spending is where it's coming from.  The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice.  In fact, most are pro-business groups using crime as an issue to support pro-business jurists.  For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.

But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:

Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.

Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.

While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening.  Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.

It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues.  While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources?  Where they think it will benefit their own bottom line.

Like I said - money talks, bullshit walks.

* Full disclosure - I am a member of NACDL.

On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:

But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.

How Not to Win Friends and Influence Voters

Let me start this screed by saying I'm a registered Democrat.  In a two-party world, the Dems come closer than the Republicans to being "right" on issues that matter most to me.  Needless to say, neither party does swimmingly well, however.

Which is why I'm particularly miffed by this piece of misguided get-out-the-vote strategy that's shown up in West Virginia (in this particular example, Cabell County, but it's happening around the country:

Here's the text:

The West Virginia Democratic Party monitors the level of voting in your neighborhood.  The Cabell County Clerk's Office official voting records are public information, and show whether you cast a ballot, but not who you voted for.  We will be reviewing these records after the election to determine whether you joined other citizens who voted in 2014.

[Info about voting times, registering, and phone number to call for help omitted]

Attached is our official "I Voted" sticker.  We encourage you to wear this after you go to the polls.  We only send these to the individuals we believe are most likely to vote.  Please don't disappoint us.

Sincerely,

Larry Puccio
Chair of the West Virginia Democratic Party

This strikes me as spectacularly wrongheaded, for a couple of reasons.

First, is the a more Orwellian image than someone pouring through records to see whether you voted or not?  Why not just include a page that looks like this:

It would get the point across just as well. 

Besides, hasn't anybody in the DNC been paying attention to the public backlash about the NSA, TSA, and various national data gathering schemes?  Obama may not have launched them, but he's defended them vigorously.  In an election where Democrats are doing anything they can to distance themselves from Obama, sending out a "he knows when you are voting, he knows when you are not" letter is beyond tone deaf.

Second, the tone of this letter is very much, "you're a Democrat, you know who to vote for," which, I suppose, is a basic get-out-the-vote thing.  But it assumes that any Democratic candidate is owed my vote, which is not the case.  I'm not one of those "if you don't vote, you forfeit your right to complain" people.  I try to only vote for people I actually like.  The current slate of WV Dems are, quite frankly, not very appealing.  No amount of threatened shaming is going to change that.

Give us better candidates, Democrats.  Then you wouldn't have such a hard time getting any of enthused to go vote for them.

We're Fooling Ourselves

3rDegree's 2012 album The Long Division is a political album.  In the sense that it's about our modern political world, not that it was trying get people to vote one way or the other.  The verdict of the album's half dozen related tracks is that the system is undeniably fucked up, partly because we, as a nation, have lost the ability to talk with people on the other side of an issue.  The lead off track lays it out well:

But this isn't just a snarky observation by a bunch of musical types from New Jersey (mostly) - it's backed up by statistics.  In a post over at The Volokh Conspiracy, Ilya Somin (quoting a Cass Sunstein op ed) lays out some numbers about the rise of "partyism" in the United States.  They're kind of chilling:

In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel 'displeased' if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.

As Somin then points out:

Increasingly, we assume that supporters of the rival political party are not just misguided about political issues, but also untrustworthy or malevolent people in general.

Although it's sometimes hard to admit, democracy (and life, more generally) is about compromise.  To quote another rock lyric, "you can't always get what you want."  You have to be able to give a little to get a little.  But that's damned difficult when the person on the other side of the aisle isn't just wrong, but is (in Somin's words) "evil, selfish, or stupid."  Compromise with evil is immoral and compromise with stupid is impossible.  So we all throw up our hands and go have a press conference while nothing gets done.  It's the modern equivalent of fiddling while Rome burns.

So what to do about it?  Do we chastise talking heads and Internet commenters who jump to the worst possible conclusions about their political rivals?  We should, but I'm not sure that's going to get very far.  What I think it's going to take to back the country down from this precipice is the very thing 49 percent of Republicans and 33 percent of Democrats fear - ideological mixing.

Because, here's the thing.  When it comes to most people who hold opinions different from you, they're actually not monsters or morons, evil or stupid.  They're people, with all the flaws that entails, who, ultimately, probably want the same broad things you do (a good life, safe neighborhoods, educated kids, etc.).  They may be ignorant about a particular issue, but we're all ignorant about something (lots of somethings, more likely).  When we forget that, we slide back into ideological tribalism.

I'm speaking from some experience here.  I'm the outlier among my brothers (and sisters in law, for that matter) in being a liberal atheist.  My older brothers have both become more conservative and religious as they've grown up, had kids, and the like.  When it comes to many matters of politics or theology, I think they're wrong.  But I know, because I've known them all my life, that they're not "evil, selfish, or stupid."  We see the world differently, but that's all right.  It makes it a lot harder to demonize the opposition when you know them as real people, not just soldiers for Team Red or Team Blue.

That's not to say all we need is to get together, sing "Kumbayya," and everything will work out.  Like I said, folks on either side of a political dispute are just people.  As there are (generally) good, thoughtful people out there, so to are there assholes, opportunists, the short sighted, and, yes, the evil.  But they're a smaller proportion of the population than we think in our worst "our side uber alles" flag waving moments.

Through my forty years, it's just been a fact that (at the national level anyway) one side doesn't get what it wants all the time.  Even during all those years the Democrats controlled Congress they had to deal with fierce GOP minorities or a GOP President.  Neither side will ever triumph over the other completely.  None of this is to suggest that partisans on one side or the other should refrain from calling the other folks out for being wrong. But there's a world of difference between calling someone (or, more correctly, his or her idea/proposal/argument) "wrong" and calling them dipshits, evil doers, or (to pull one example I saw today) a "weasel."

If we don't recognize that and try to at least make a good faith attempt to understand, rather than caricaturize, the other side, then we really are fooling ourselves if we think the country is ever going to get better.

I Was Going to Say That

So, when the Supreme Court announced the decision in the Hobby Lobby case, I was immediately seized by the need to write something satirical about it.  I got about this far, before I ran out of spunk (as often happens with satire):

SCENE: A boardroom on a bright summer morning.  Sunlight streams through an animatronic stained glass window depicting Eric Idle singing the "Money" song.

My closely held brethren in profit, welcome to this, the annual feast day of the holy Hobby Lobby.  Before I go further, let me thank the sisters for the wonderful coffee and baked goods upon which we feast this day.  Although, please, ladies, no more danishes?  The Danes, of course, are godless communists and we have no room for that here at GloboCorp.

And sisters, if you wish to stay while we speak, please sit down in the back of the room and be quiet?  Blessed are thou.

It would have continued in that vein, feasting the holy Hobby Lobby as the paragon of how to make even more money by appealing to the name of God.  As I had written up for insertion later:

Muhammad, my brothers, may have moved the mountain, but he did not increase the bottom line.

But, as I said, I ran out of spunk and it sat there for a bit.  Then, along comes Kathryn Pogin, writing at the New York Times philosophy blog (it's a thing) and she, while not aiming for the snark I was going for, hit what I think are all the high points of why the whole Hobby Lobby thing is such a miss.

To begin with, science and the actual world has little to do with Hobby Lobby's objections:

Some corporations that have objected to the contraceptive requirements of the Affordable Care Act, like Hobby Lobby, claim that they do not wish to discriminate against women by denying them access to contraceptives generally, and that their opposition is merely to abortion. However, their understanding of which medications act as abortifacients rests on an outdated understanding of medical science and is at odds with the facts of the matter. Use of these contraceptive methods is not tantamount to abortion, and moreover, providing women with access to safe, reliable contraceptives for free drastically reduces the actual abortion rate.

Nor does it matter that Hobby Lobby's concern about particular contraceptives is of recent and dubious vintage:

Hobby Lobby offered coverage for some of the contraceptives it now claims its religious faith forbids it to have any association with, until shortly after the Becket Fund for Religious Freedom asked it if it would be interested in filing suit. The company continues to profit from investments in the manufacturers of the 'objectionable' contraceptives through the 401(k) plan it offers its employees. Recently, Hobby Lobby has faced legal trouble for false advertising. It has built a fortune, in large part, by selling goods manufactured in China, infamous for its poor labor conditions and related human rights violations. These are the practices of a corporation that will emphasize the Christian faith of its owners when convenient and profitable, but set that faith aside when it would be costly to do otherwise.

What Pogin overlooks, or ignores (it's a philosophy blog, after all, not a legal one), is that none of those considerations were relevant to the Supreme Court.  Neither the majority or dissent were willing to take on the substance of the company's stated beliefs and how they interacted with the real world.  This, quite correctly, is a feature not a bug - the government, including the courts, shouldn't be in the business of deciding the truthfulness or sincerity of religious or similar beliefs.  But therein lies the rub - because those beliefs are off limit from official inspection, neither can they be a basis for a get-out-of-obeying-any-regulation-I-don't-like card.  The Supreme Court got it right in Smith.  Unfortunately, Congress saddled us with RFRA (which was the controlling law - not the First Amendment), another nasty gift of the Clinton era that keeps on giving.

Having said all that, Pogin also gets exactly right the actual impact of the decision on women and why the "it doesn't ban anything" argument rings hollow:

This is economic coercion. Opponents to the contraceptive mandate have insisted that women remain free to purchase whatever health care services they choose, but this is woefully insensitive to the reality that low-income women and families face. For these women, there is a very large difference between what is available to them for purchase in principle and in effect. It is easy for those who do not regularly face desperate decisions due to financial insecurity or medical complexities to forget the difference. An intrauterine device, for example, can cost a low-income full-time worker more than a month’s wages. For some women, this is both the safest and most effective medical option, yet hopelessly unaffordable.

Pogin has another interesting angle, too, that being that Hobby Lobby isn't even a good Christian, but that's a hunt in which I have absolutely no dog.

At the end of the day, the question is whether Hobby Lobby is as limited in its impact as the Court seems to think it will be.  I, honestly, can't see a way to distinguish the exemption approved there from the ones the Court seemed to clearly think were different, but I sometimes lack imagination.

I guess we'll have to wait and see after GloboCorp finds Jesus, huh?

I Will Never Win Elected Office

The fact that I have no future in politics is not something I spend a lot of time crying about.  Just about any position I have on things disqualifies me in the eyes of most of the American electorate.  I'm an atheist.  I favor the legalization of drugs.  I'm against the death penalty.  I couldn't go through the motions of wearing the flag pin 24/7, engage in the religious rites that permeate public political life, or step up to explain how my team is right today when I thought the other team was wrong for doing the same thing during the last administration.  Plus, I'd probably say "fuck" on TV and that would be it.

Nonetheless, it disturbs me that, in addition to all that, people may want to hold the job I do against me.  Since, you know, it's required by the Constitution and all.

Recently there's been an upsurge in political rhetoric going after politicians for their prior lives as lawyers, particularly when they've done criminal defense work.  Over at Volokh Conspiracy, Jonathan Adler, who's been on this issue for a while, discusses the latest flap, involving Hillary Clinton's work as appointed counsel for a rapist way back when (for more examples see here).  Adler, who's unlikely to be a Hillary voter, cuts right to it:

What should we make of this story?  Perhaps nothing more than that Hillary Clinton represented someone in need and fulfilled her duty as a member of the bar to provide a zealous defense of her client.  This is not something for which she should be attacked.  We are all the worse off if the message sent to young lawyers is that representing guilty or unpopular clients is likely to be a political liability down the road.  Ably and effectively representing a criminal defendant — even one you believe to be guilty — is not 'scummy' or inappropriate. Forcing the state to prove its case before it deprives an individual of their life, liberty or property is a noble endeavor.  So while I think the story is newsworthy, I think most of the attacks on Clinton for this episode are misplaced, and a bit opportunistic. [Note that some attacking Clinton are also calling for more more due process protections for college students accused of rape.]

He does point out that it's fair game to look into how someone represented criminal clients.  That is, if she was unethical or broke the law herself, that's a problem.  But so long as Hillary or anyone else did what criminal defense attorneys are supposed to do - zealously represent their clients - there's nothing to criticize.

That is, unless you want to go after the Sixth Amendment itself.  Counsel for someone accused of a crime is a cherished right, one that was important enough to go in the Bill of Rights, after all.  And while the concept of public defenders and required appointed counsel are of more recent vintage, the idea that everyone, even the most despised, deserve representation has deep roots in this country.

On March 5, 1770, an angry crowd in Boston surrounded a British soldier.  He was eventually joined by eight others, who then fired into the crowd, killing five and wounding six.  Most people know about that - it's the Boston Massacre, one of the foundational events of the American Revolution.

What fewer people know is that the British soldiers were put on trial.  Given the furor over the shootings and the general anti-British sentiment in the colonies, it was hard to find a lawyer to defend them.  Finally, a local lawyer named John Adams agreed to defend them.  He obtained a good result - six of the soldiers were acquitted, while two others were convicted only of manslaughter.  Adams did not shrink from his representation, saying three years after:

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently.

I have the bolded portion of that quote hanging in my office.*  It perfectly encapsulates what defense attorneys do.  It didn't hurt Adams any - he went on to be president, after all.  So, go after Hillary or whoever else based on their politics, not their long ago role as a criminal defense attorney.  If it was good enough for John Adams, it's good enough for you, too.

* Along with other "inspirational" quotes from Frank Zappa, Matt Groening, Dick Neely, and King Crimson!

Of Persons, Legally Speaking

I've written before about the Supreme Court's Citizens United decision and about how I generally think the Court got it right.  Now, I concede there are legitimate arguments that they didn't and I'm open to the argument that decision had a negative effect on the last election, but that's not really a concern of the First Amendment.  But my biggest pet peeve when I hear people (on the left, mostly) complain about Citizens United is when they insist the Court made some sort of sweeping, never before contemplated, holding about corporations being "people" in some sort of legal sense.

I bring this up because the idea of what constitutes a "person" legally has raised its head in a couple of cases the Court has accepted for review dealing with the Affordable Care Act's contraceptive coverage mandate.  There's some argument that because the Court found a corporation's First Amendment right to free speech was violated in Citizen's United, it will do the same with a corporation's putative Free Exercise rights.  But that's not quite the right question to ask.

Eric Posner dives into this a little bit, bringing in another recent legal case championed by the political left - an attempt to use New York's habeas corpus statute on behalf of chimpanzees being held in captivity.  He makes a couple of important observations.

First, he explains how the concept of non-humans being legal "persons" is not only not a new thing, but essential to the workings of the law:

The law also treats various nonhuman, nonsentient entities as 'persons' for certain legal purposes. Corporations, estates, trusts, partnerships, and government entities are often defined this way. Walmart, Illinois, and the California Pension Fund can sue, for example, without anyone asking if they have a right to abortion. Sometimes, corporations can bring suit (or be sued) because a statute explicitly gives 'persons' that right, and defines 'persons' to include corporations. At other times, the statute does not define 'persons,' but courts interpret the word to include corporations because they believe that is what Congress intended. This transubstantiation of corporations into persons advances some pretty uncontroversial policy goals. If corporations lacked personhood, you couldn’t sue FedEx for crashing a van into your car, or Walmart for selling you a defective space heater that burns down your home, or J.P. Morgan for defrauding you when you get a lemon mortgage. You wouldn’t be able to enter into contracts with a corporation at all. Legislatures and courts have been treating corporations like persons for hundreds of years: There is even a general interpretive rule in the law that when Congress says 'persons,' it means corporations as well, unless the context of the statute provides otherwise.

In other words, we want corporations to be persons sometimes because, if not, they'd exist wholly outside the law.

The other point he makes, which I think is important, is that in cases like the ACA one or the chimp habeas one, the ultimate issue is whether the particular statute it issue was meant to include itself in that group of applications where corporations are persons.

So:

Hobby Lobby’s opponents do not argue that RFRA doesn’t apply to corporations—they can’t, because it is undisputed that the statute applies to nonprofit corporations like the Catholic Church. The argument instead is that Congress did not intend RFRA to apply to for-profit, commercial corporations. Whoever is right, the answer turns on what Congress intended, not the metaphysics of personal identity.

This, I think, is a particularly important part when it comes to any big deal Supreme Court case.  In the media those tend to get boiled down into one or two grand issues, great questions of metaphysics and politics that capture popular attention.  In actuality, it's almost always more technical than that, wrapped up in procedural oddities that make it impossible for the Court to really take such questions on directly.

So, when Mitt Romney famously (and politically tone deafly) said, "corporations are people, my friend," he was neither completely wrong nor right.  Sometimes they are, sometimes they aren't.  And it's been that way for a long long time.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

A Legacy Unfulfilled

The COURT: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

The “DEFENDANT” in that passage was Clarence Gideon. At the time he made that request in 1962, he was actually wrong. The Supreme Court had held that, unless there was some particular reason that a defendant couldn’t represent himself (mental illness, illiteracy, etc.) he had no right to counsel. Gideon went to trial and was convicted. Then he wrote petition, in pencil, to the Supreme Court. With an assist from future Justice Abe Fortas, Gideon would fundamentally change the American legal system.

Fifty years ago today, the Supreme Court announced its decision in Gideon’s case. Unanimously, the Court rejected its old precedent and held that every person charged with a crime (that carries a sentence of jail time) has a right to an attorney, appointed at state expense if they can’t afford one. Justice Black, writing for the Court, wound up the opinion in lofty, aspirational language:

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries.

To be fair, the writing was on the wall when it came to appointing counsel for indigent defendants. Florida didn’t send its top appellate lawyer to argue the case, instead entrusting it to an assistant attorney general who had never argued before the Court before. And his attempts to bolster his case didn’t go well:

An effort by Jacob to get other states to file an amicus brief extolling the dangers to federalism of requiring counsel for indigent defendants drew only two supporters (Alabama and North Carolina). Meanwhile, the letter from Jacob prompted a young, up-and-coming politician, Minnesota Attorney General Walter F. Mondale, to organize an amicus from states urging that Betts be overruled. Twenty-three states signed on.

It all paid off for Gideon in the end. At a retrial where he was represented by counsel (although not by volunteers from the ACLU whom he turned down), Gideon was acquitted. He couldn’t get back the time he lost in prison, of course, but at least he lived the rest of his life as free man.

I owe a debt to Gideon (and Fortas), since without his case I doubt the public defender system of which I’ve been a part for the past 13 years wouldn’t exist. Although that case didn’t technically deal with the right to counsel on appeal, the entire apparatus in which I work owes its beginning to Gideon’s pencil-written petition.

Alas, 50 years out from the Court’s decision, we as a society still struggle to provide adequate representation to indigent criminal defendants. In fact, that failure has become a common feature in reports about the court system :

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

There were more specifics, of course, but the report’s bottom line was that ‘40 years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.

Ten years on, things are in no better shape, particular in state courts. One repeated recommendation of reports on indigent defense is that statewide systems are best as delivery quality representation. Unfortunately, only 24 states have statewide public defender systems. The federal system is both broader and more integrated (IIRC, only one federal district is without a defender office of some kind) and, as a result, generally performs better.

As an example of what it can be like at the state level, check out the situation in Wilkes-Barre, Pennsylvania, detailed recently in USA Today:

If he came back today, Clarence Gideon might rue the quality of legal representation he'd receive. He might not get any at all.

Such was the fate last year of some indigent criminal defendants who walked in the public defender's door here and past Gideon's gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.

Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn't take on new clients and do justice to those they already had. He sued county officials — his bosses — to let him hire more lawyers and to stop them from retaliating against him.

That situation may be exceptionally bad, but it’s a good example of problems faced across the country.

We send more people to prison than any other country on the planet. Our greatest grown industry is building prisons. Legislators, at the state and national level, respond to every problem that arises with more laws that define more crimes and require more severe punishments. Yet, for all that, we don’t make sure that the people charged with those crimes get adequate representation. It’s a failure of fundamental fairness.

In Gideon, the Court wrote that:

[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Sadly, that’s as true today as it was 50 years ago.

Time Is Money (and So Much More)

One of the crueler ironies of the current criminal justice system is the disparate way it treats people being released from prison.

If you’re guilty and coming to the end of a full sentence, the system is designed to help ease your transition back into the real world. There’s counseling, an emphasis on making plans for life outside of prison, and a (overburdened and underfunded) support system waiting upon release to make sure a person doesn’t fall back into bad habits. At least it’s supposed to work that way.

Not so if you’re actually innocent of whatever sent you to prison in the first place. The wrongfully convicted, who can lose years of their lives in a cage waiting for the justice system to get things right, aren’t necessarily given much help at all.

Consider what happened to Robert Dewey, who was locked up by the state of Colorado for a murder he didn’t commit. Nearly 18 years later, DNA not only cleared Dewey but linked the murder to someone else:

After years of work by his court-appointed lawyer, Danyel Joffe, the Innocence Project came on board in 2007 and paid for tests that showed no DNA links between Mr. Dewey and the crime scene. His conviction was reversed, and he was released last April. He left with an apology and a handshake from prosecutors in Mesa County, he said, but little else.

Colorado, like nearly half the states, doesn’t have any scheme for compensating people who have been wrongly imprisoned, although legislation providing for $70,000 per year in prison is working its way through the state legislature.

Dewey’s case is a particularly good example of this problem because DNA exonerations tend to take place in cases, like murders and rapes, where defendants are sentenced to lengthy terms, including life, which makes any attempt at rehabilitation unlikely:

Because Mr. Dewey had been sentenced to life, he said, he never touched a computer or took any vocational classes while he was in prison. He came out awe-struck by a world that had gone online and turned digital. The first time he walked into a Walmart, he said, he was so overwhelmed by its colors and scale that he had to run outside to smoke a cigarette.

I have to admit, I’m regularly overwhelmed at Walmart, but not because of the colors.

Dewey’s case is also a good example of the poor medical care that inmates sometimes receive while in prison. He’s currently unable to work because of a back injury that was aggravated while in prison. All in all, this seems like a correct assessment:

’God bless him, but the system has created him the way he is,’ said Stephen Laiche, one of Mr. Dewey’s lawyers in his 1996 trial. Mr. Laiche is now working to seal Mr. Dewey’s records from the murder case. ‘Are we surprised that he can’t get a job? Because we wrongfully convicted him, he couldn’t work for 20 years.’

Society owes a duty to anyone it locks in a cage to try and help them move back into the outside world. Not out of any kind of bleeding heart charity, but just because it’s better for them and us if they become productive, law-abiding citizens. That duty is doubly critical to those whom we had no reason to lock away in the first place. Seventy grand, or an even larger amount, isn’t much for a years of a man’s life disappeared, but it’s the least we can do.

There Are Things Worse Than Mercy

Clemency - when a governor or the president either lessens a person’s sentence or overturns his conviction - isn’t something that happens very often. Many words have been written on Obama’s stingy record when it comes to clemency, but the fact is he’s not that much worse than his predecessors. Sadly, politicians are just not that enthused to use political capital to release someone from prison who might, when it’s all said and done, go out and do something awful. One of those is all it takes to destroy a political career. Weighed against that, the reward for doing the right thing just isn’t that great.

Which is a long winded way of saying, when the governor calls and tries to lessen your penalogical burden, you say “yes!” But death, as they say, is different and sometimes capital punishment makes people do strange things.

Consider the case of Gary Haugen (via), convicted of murder in Oregon in 2007 (committed in prison while already serving life for another murder). Haugen is what they call in the capital punishment biz a “volunteer,” in that he wants to die. Or, at least, he’s waived his remaining appeals and collateral challenges to his conviction in order to bypass the years that might pass before he’s executed. If you’re the state of Oregon, so far so good, right?

Enter Oregon Governor John Kitzhaber. Kitzhaber is a death penalty opponent and he utilized his executive authority to offer Haugen an “unconditional reprieve,” after a fashion. It’s actually a reprieve that will expire when Kitzhaber leaves office and is part of a blanket decision on his part not to carry out any death sentences during his term because of problems with the death penalty. So it’s not much of a reprieve, and certainly not a commutation to a life sentence or a pardon.

Regardless, here’s the catch with Kitzhaber’s limited attempt at beneficence – Haugen doesn’t want it. Now the Oregon Supreme Court is set to decided whether an inmate can refuse an act of clemency handed down by the governor.

At first blush I would have never thought that clemency was something someone could refuse. It’s an act of executive grace, after all, which can neither be demanded* nor reviewed, so how could the receiving party turn it down? However, that’s not what a lower court decided, identifying a 1833 Supreme Court decision that allowed a prisoner to refuse a pardon. The Governor counters that newer cases undermine that idea and that:

’No state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid,’ [the Oregon Solicitor General] wrote. ‘Instead, the case law surrounding the clemency power reaffirmed that the power was expansive.’

Haugen’s argument is based on both clemency law as well as federal notions of due process and cruel and unusual punishment. This passage from the argument summary section of his brief seems to sum up the core of his position:

Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhaber’s action, as well-intentioned as it might be, to be profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governor’s desire to ‘allow’ Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. . . . The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought.

A third party involved in the case is the ACLU, which filed an amicus brief from its office between a rock and a hard place. On the one hand, the group is furiously anti-capital punishment. On the other, it generally takes positions that maximize an individual’s control over his own life and even the right to end it (as Haugen explains in his brief, he doesn’t want to die – the state wants to kill him – he just doesn’t want to unduly prolong the process). In the end, it comes down on the side of Kitzhaber, arguing that his clemency authority extends to temporary reprieves such as this one used to “promote the public welfare” by, among other things, forcing a discussion on the nature of Oregon’s death penalty.

While I understand the structural basis for the ACLU’s argument, as well as Kitzhaber’s, I’m not sure they should prevail in this case. I’m particularly troubled by the temporary nature of the reprieve. It would be one thing if Kitzhaber simply commuted Haugen’s sentence to life, as George Ryan did in Illinois while he was governor. But the uncertainty of this reprieve, which may only prolong the inevitable for Haugen, adds an extra layer of cruelty to the whole situation. Haugen may have earned his punishment, but nobody should be made a pawn in a political game in which they have no real input.

If the death penalty in Oregon is broken, then commute those currently sentenced to death to life in prison and fix the system. Or, better yet, join the rest of the civilized world and scrap the barbaric practice altogether. Stand up and put your money, and your political capital, where your mouth is, Governor. Stop playing games.

* Obviously, you can ask the governor or president for a pardon or commutation. What I mean is that, unlike a court action, there’s no combination of factors that, if proven, will lead to success. The final decision lies completely within the executive’s unreviewable discretion.

Cola Wars, Color Wars

New York City mayor Michael Bloomberg’s war on big soda has drawn a lot of fire. Not surprisingly, the makers of said sodas, including Coke, have come out against it. What might be more surprising is one of Coke’s allies in the fight, the NAACP. Why might the NAACP throw in with a major corporation on an issue like that? As with so many things, history provides some potential insight.

UVa history prof Grace Elizabeth Hale, writing in the New York Times over the weekend, explored what in history might cause the NAACP to line up with the cola companies to fight Bloomberg’s ban. It goes back to the very beginning, before even the days of Coca-Cola:

[John Pemberton’s] first, an 1884 invention called French Wine Coca, was a copy of a popular French wine that contained cocaine. But in November 1885, just as the product began to sell, Atlanta outlawed alcohol sales.

Across the nation, support for prohibition was often tied to the desire by native whites to control European Catholics, American Indians, Asian-Americans and, especially in the South, African-Americans. It gave police officers an excuse to arrest African-Americans on the pretext of intoxication.

Pemberton shifted focus to a “temperance drink” that would have “medicinal” effects – Coca-Cola. Things got sticky in 1899, when he shifted to pushing the cocaine-infused drink as “refreshing” in its new signature curved bottles:

Anyone with a nickel, black or white, could now drink the cocaine-infused beverage. Middle-class whites worried that soft drinks were contributing to what they saw as exploding cocaine use among African-Americans. Southern newspapers reported that ‘negro cocaine fiends’ were raping white women, the police powerless to stop them. By 1903, Candler had bowed to white fears (and a wave of anti-narcotics legislation), removing the cocaine and adding more sugar and caffeine.

Hale then goes on to explain how Coke basically neglected the African-American market, giving rival Pepsi a wedge to help grow its market share, albeit not for very long:

The campaign was so successful that many Americans began using a racial epithet to describe Pepsi. By 1950, fearing a backlash by white consumers, Pepsi had killed the program, but the image of Coke and Pepsi as ‘white’ and ‘black’ drinks lingered.

Not long after, perhaps seeing the business error of its ways, Coke quietly began to market to African-Americans. Eventually, part of Coke’s strategy was to support African-American organizations, forming the basis of its relationship with the N.A.A.C.P.

Hale doesn’t allege that the NAACP is only paying back Coke for its previous support – although there’s something to be said for standing by those who’ve helped you out in the past. She concludes:

the New York State N.A.A.C.P. may have a legitimate complaint against the soda restriction as a threat to minority business. And it may be fair to see the proposal, as some observers have intimated, as an instance of middle-class whites trying to control the behavior of working-class minorities — just as they did under Prohibition. But to understand the real story behind this unexpected alliance, we first have to understand its tangled history.

That’s not just true in this situation. No issue that grips public discussion – gun control, the War on (Some People’s) Drugs, foreign policy – erupts out of nowhere, nor does it exist in a vacuum. It has a history, often a “tangled” one (often involving race, too), that we’d do better to understand if we hope to deal with them in a constructive way.

On Judicial Activism

As someone who reads court decisions for a living, and then has to grapple with what they actually say, it always sets my hair on edge when someone complains of “judicial activism.” It’s such a nebulous term as to be pretty much meaningless. Most of the time its used in the press or in political debates it’s just shorthand for “the court reached a result I don’t like.” Figure out which side’s ox is being gorged and you can pretty easily figure out whether the Dems or GOPers will be waiving the judicial activism bloody shirt.

If judicial activism as a concept has any real meaning, it seems to me it has to have more to do with process than normative results. In other words, in reaching the decision it did (whatever that is), did the court go out of its way to make a bigger impact than the case warranted? Think the infamous Citizen’s United decision, which really didn’t need to reach the First Amendment issue (even if the Supreme Court, in my opinion, got that issue right).

I thought about that when the news broke Friday that the D.C. Circuit Court of Appeals had vacated several appointments to the National Labor Relations Board made by President Obama in January 2012. The appointments were made pursuant to the president’s authority to make “recess appointments” while the Senate is out of session, which last only a short amount of time. At the time of the NLRB appointments, the Senate wasn’t doing any real business, but was gaveled to order in pro forma sessions to keep from being in recess.

Such Senate chicanery isn’t a Republican invention:

The current dispute can be traced back to 2007, when Democrats took control of the Senate. Hoping to block Mr. Bush from making any more unilateral appointments, they did not formally recess before going home for Thanksgiving. Instead, they held pro forma sessions, meaning a member came into the nearly empty chamber every third day and banged the gavel. The idea was that the novel tactic would legally break up the long recess into a series of short ones believed to be too brief for recess appointments.

Senate Democrats repeated the move for the rest of the Bush presidency, and Mr. Bush did not challenge it.

Under Mr. Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days. But last January, Mr. Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three labor board members . . .

So the issue facing the D.C. Circuit, in an appeal from a NLRB decision by Pepsi, was whether those appointments violated the Constitution. Given the facts of the case, the court could have stopped after deciding that the Senate’s sessions, whether pro forma or not, weren’t a “recess” and that the Senate, rather than the president, gets to decide when it’s in session. For what it’s worth, I think that’s the right result.

But the court did not stop there and, in fact, the court went much further. Not only did it hold that Obama’s particular appointments were invalid, but rather any appointment made in such a fashion that isn’t made between the actual sessions of Congress – i.e., in the space between one Congress ending and the other beginning – is invalid.

I agree with John Elwood over at Volokh, no den of Obama lackeys, that:

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting ‘pro forma’ sessions. It is also the most thorough judicial discussion of the recess appointment power.

By sweeping so broadly, the D.C. Circuit (in a ruling that conflicts with decisions in three other circuits) called into question a long standing bipartisan practice. As Elwood explains:

Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years.

Furthermore, while there was some controversy about such appointments in the 18th century, by 1823 the Attorney General had concluded that they were all right.

All of this is not to say that the D.C. Circuit, in the end, got it wrong on the broad constitutional issue. I’m hardly an expert in this area of law, so I don’t know. But in going so far and upending long-standing understandings, the court has potentially created some real issues. If the NLRB actions taken with these recess appointments are all now void, what about decisions made by other recess appointments? For that reason, I expect that this decision will not be the last work in the case.

The Constitution limits the jurisdiction of courts to “cases or controversies.” Unlike top courts in some other countries, they cannot offer advisory opinions. Only the particular case before them, and the particular issues it presents, should be resolved. In other words, there’s a good reason for courts to make decisions on as narrow a basis as possible. When they push past that line, it sounds like judicial activism to me, if anything every does.

While I Was Away

So, a few things have transpired since I went away to write my little book this year. The biggest, of course, is the election, which is finally behind us, at least until the Iowa caucuses start up in a few minutes. Here’s a few stories that caught my eye while I was away:

Citizen’s United's OK After All
I’ve never been a fan of the left’s freak out over Citizens United. I continue to believe that most of the people who got so worked up about it didn’t really know what the law at issue actually did. Regardless, in the wake of the election, it looks like liberal organizations made pretty good use of the decision, after all:

This may be one of the major takeaways of the 2012 campaign: When liberals learned to stop worrying and love Citizens United, they benefited from it more than the conservatives who supported the decision.

That’s not completely fair, since one of the two groups mentioned in the article, the AFL-CIO, supported the winning side in Citizens United via its amicus brief. Still, it does show that, even if Citizens United meant metric tons of additional money got pumped into the election, spending that money on advertising didn’t have much impact. The groups discussed in the article used PAC money to fund on-the-ground get out the vote operations, which provided much more bang for the bucks.

Rules for Thee, But Not for Me
One of the thing that kept me from voting for Obama this year is his fondness for an expanded drone war that knows know particular bounds, either geographically or legally. Apparently, someone in the administration must be bothered by it, too, but only to the extent that some other president may get to enjoy the same lack of oversight as Obama. Hence:

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

But, of course, now that the election’s over and there’s no fear that this particular machinery of death will fall into Romney’s hands, progress has slowed and the project:

will now be finished at a more leisurely pace, the official said.

Brilliant. If you’re wielding power that you’d be squeamish about someone else wielding, you should probably think twice about wielding it in the first place.

But I Thought People Found Jesus In Prison?
I’m all for creative sentencing in criminal cases, particularly for first offenders and juveniles. Even someone who takes a life, as an Oklahoma teen did when he crashed the truck he and another teen were riding in, ejecting the other and killing him, sometimes there’s room for mercy. But is there ever room for an unconstitutional coercion? Amazing enough, Oklahoma District Court Judge Mike Norman sees nothing wrong with giving said teen a suspended sentence, contingent on his attending church services for the next ten years.

The problem isn’t so much in this case – the defendant agreed to the deal and was already a regular attendee of an approved church (which begs the question . . .). So there will be no appeal for a higher court to decide if it’s inappropriate (the ACLU is trying an ethics complaint against the judge, however). But what about the next case, which involves a defendant that’s either not religious or doesn’t belong to Norman’s flavor of choice? What’s the option for an atheist, agnostic, Muslim, or Hindu? Therein lies the problem. Norman’s creative sentence gets the force of the state behind a religious institution, which is what the First Amendment is designed to guard against.

On Being Polled

After work yesterday I was where I frequently am – sitting on the living room floor in front of the TV with a PS3 controller in my hand – when the phone rang. Given the time of day I was sure it was a telemarketer of some sort, but since my caller ID is on the fritz I picked up anyway. Under normal circumstances, I tell telemarketers I’m not interested and hang up before they get into their spiel, but the woman on the other end of the line did something that made me hold on for just a second.

She pronounced my name right. You’d be amazed at how many different and interestingly wrong ways “Byrne” can come out of someone’s mouth.

Turns out she wasn’t selling anything, but asking questions for a “research” firm. I assumed it would be political, given the season, and I was right. So I settled in and answered a bunch of questions. It was an interesting experience.

This survey focused on West Virginia elections, particularly the governor’s race, although I was asked about the presidential race and the West Virginia senate election as well. Oddly enough, when it came to the West Virginia races, I was asked who I would vote for in races involving both all the candidates (i.e., throwing in the Mountain and Libertarian party candidates) and only the Democrat and Republican candidates, but for the presidential contest was only offered the Obama/Romney choice. To her credit, the lady on the phone accepted my “neither” answer on that one without complaint.

My guess is that this poll was being conducted on behalf of Bill Maloney, the Republican challenger to West Virginia governor Earl Ray Tomblin. I was specifically asked about my opinion of Maloney and whether it had changed recently, but wasn’t asked the same question about Tomblin. There were a long series of questions about which candidate most reflected certain ideas (regardless of which one you would vote for.) Thankfully, once again, when I answered “neither” to the question of which one “cared about people like me,” my inquisitor took that answer without question.

The pollster didn’t identify itself, so I have no idea whether the results of this inquiry will be made public or if it’s an internal poll done for one of the campaigns (that’s my guess). Regardless, it’s ironic that my answers to those questions over the phone will probably have more impact on the election than any vote I cast. After all, polling is based on samples of the population, so each person who answers questions is really doing so on behalf of perhaps thousands of people. In the voting booth, I’ve only got one ballot to cast, even in West Virginia.

So, hey, maybe I made a difference this time around!

When the Good Guys Lie

I’ve been ruminating about this video for a couple of weeks, since it was pimped by Neil Gaiman on Facebook. It’s about a town library that was in danger of closure unless residents voted in favor of a minor tax increase. Tea Party forces mobilized to oppose the tax and looked to carry the day. Then, this:



I mean, the good guys won, right? And, in the end, the pro-library folks came clean and everybody knew what was up before the vote happened. So what’s the problem?

Well, the problem is that, in my gut, the pro-library folks were lying. The entire outlandish possibility of a book burning was a complete work of fiction, and not even one with a connection to reality, either. If the library closed down, it’s most likely that its collection would be sold off to help close the financial hole. My local library sells used books every year as part of the West Virginia Book Festival (coming next weekend!). They don’t burn the excess parts of the collection.

However, as political lies go, it’s fairly harmless, but if making shit up to get people to vote your way is kosher, where does it end? What about organized campaigns to warn of Obama’s double secret atheist Muslim agenda to impose Sharia law in a second term or how Romney is really a Mormon Manchurian Candidate who will force us all to give up caffeine and wear magic underwear if he’s elected? Where do we draw the line?

Perhaps the problem is that I’m a bit irked that it’s the “good guys” who took this route. They had the better argument and should have won the day via force of rhetoric. Or am I just naïve to think that reason wins the day when it comes to politics?

Maybe I am.

Over at the New York Times philosophy blog (yes, there is a such a thing), Michael Lynch examines whether reasoning leads us inexorably to the value judgments we make (and political decisions are nothing if not value judgments), or just the opposite – does reasoning just provide justifications for conclusions we reach for more emotional reasons. Research shows the latter:

Recently, however, some social scientists, most notably the psychologist Jonathan Haidt, have upped the cynical ante. In Haidtt’s view, the philosophers’ dream of reason isn’t just naïve, it is radically unfounded, the product of what he calls ‘the rationalist delusion.’ As he puts it, ‘Anyone who values truth should stop worshiping reason. We all need to take a cold, hard look at the evidence and see reasoning for what it is.’

* * *

According to Haidt, not only are value judgments less often a product of rational deliberation than we’d like to think, that is how we are supposed to function. That it is how we are hardwired by evolution. In the neuroscientist Drew Westen’s words, the political brain is the emotional brain.

Lynch argues hopefully against this conclusion, but I’m not completely convinced. The example he uses as a long-term change in attitude – the acceptance of homosexuals – I think supports Haidt’s hypothesis. I don’t think people generally decided they didn’t have a problem with homosexuals on a rational level. I think it was more down to the increased visibility of actual gay people and the realization that they’re aren’t actually the monsters they had been made out to be. In other words, people became OK with the idea emotionally, not rationally.

At the end of the day, though, I think I side with Lynch:

Giving up on the idea that reason matters is not only premature from a scientific point of view; it throws in the towel on an essential democratic hope. Politics needn’t always be war by other means; democracies can, and should be places where the exchange of reasons is encouraged. This hope is not a delusion; it is an ideal — and in our countdown to November, one still worth striving for.

But maybe that’s just because I want it that way.

Friday Review: The Long Division

We’re just on the cusp of another presidential election, that several month run to November when it will be impossible to avoid the whole mess. It’s either a brilliant time to release an album about the fractured nature of American politics or a sure fire bet to piss off a good hunk of the fan base. Jersey proggers 3rDegree figured out how to do both with The Long Division.

Which is to say that the political half of The Long Division isn’t really a polemic, in the “vote for this guy” sense of the word. It’s not even “bipartisan,” a word that gets thrown around too often to have much meaning anymore. It’s about the way we do politics in 21st-century, not the end result.

Take the lead-off track (mixed by Brett Kull of echolyn, who have their own fine and long awaited new album out) “You’re Fooling Yourself.” It throws around a lot of left v. right catchphrases you hear these days (especially if you read the political blogs), not in an effort to show that one side is right and the other’s wrong, but to show that by reducing our political opponents to caricatured cardboard cutouts we’re really talking past ourselves. Or there’s “The Socio-Economic Petri Dish” which captures the frustration of the modern political world in one line:

Don’t want the layoffs,
but I don’t want the pay-offs to the men in the suits

In other words, we’re so far gone that the solution to almost any problem is probably not particularly palatable.

But my particular favorite of the political hunk is “Incoherent Ramblings,” which takes aim at the talking head spouters of talking points that populate most cable news shows. I’m not talking about actual analysts who might have some incite into a particular incident. I’m talking about the kind of people who get brought on to argue whether the fact that the sky is blue will favor Romney or Obama come November. “Incoherent Ramblings” nails both the mercenary mentality of those flaks but also the fact that they never really say anything of substance.

It’s not all politics on The Long Division. The second half of the album dives into more personal territory from love (“A Work of Art”) to the nature of the universe (the absurdly catchy “Nihilist’s Love Song”), and the for some people to live their lives in public (“Televised,” which hearkens back to the title track from 1996’s Human Interest Story). As it happens, my favorite track on the album, “Memetic Pandemic,” is in the second half of the album. I don’t have a good handle on the lyrics just yet, but I love the slow stalking quality of the music.

Speaking of music, The Long Division sees 3rDegree refining their style as set forth on their previous two records. It rubs up against prog, ciphering off it’s intricacy and eclecticism, but is rooted firmly in catchy rock hooks. It’s no surprise that the band has never really gone full-on epic (although several tracks on this album stretch to the 6-7 minute mark). But there’s not reason they should, since they pack in so many layers of sound into each track that stretching things out just for the sake of it would be pointless.

2012 has already been a banner year for new albums in the prog world and it doesn’t show any signs of slowing down. When December comes and those damned lists start popping up, trying to sort the best of from the rest of, The Long Division should come out near the top. Which, in this of all years, is really saying something.

Details
------------
The Long Division, by 3rDegree
Released 2012

Tracks:
1. You're Fooling Yourselves (6:53)
2. Exit Strategy (5:46)
3. The Socio-Economic Petri Dish (6:51)
  i. Prelude to a Bailout
  ii. Give them What They Want
4. Incoherent Ramblings (7:46)
5. The Ones To Follow (3:15)
6. A Work Of Art (2:53)
7. Televised (6:54)
8. The Millions Of Last Moments (2:07)
9. Memetic Pandemic (7:29)
10. A Nihilist's Love Song (3:39)

Players:
George Dobbs (lead vocals, keyboards)
Robert James Pashman (bass, keyboards, backing vocals)
Patrick Kliesch (guitar, backing vocals)
Aaron Nobel (drums, percussion)
Eric Pseja (guitar, backing vocals)

With:
Rob Durham (flute)
Bill Fox (sax)
Cara Brewer, Veronica Puelo (backing vocals)
Jed Levin (spoken word)

The Vestiges Remain

A few weeks ago I wrote a review of a book, Slavery By Another Name, that makes the persuasive case that slavery in the United States extended well past its official abolition after the Civil War, in the form of a criminal justice system that imprisoned black men on trumped up charges and then rented them out to local businesses as excessively cheap labor. One aspect of the system that kept it rolling was that the county sheriffs who had control of most of those inmates had financial incentives to rent them out and pay next to nothing for their care and feeding.

Those kinds of odd financial arrangements that provided a motivation for state officials to do wrong have a long history in the United States. For example, in Georgia at one time the low-level judges who issued search warrants had only one means of getting paid – issuing warrants ($5 a pop). Obviously, this created a financial incentive for those judges to issue warrants, regardless of whether they were supported by probable cause. In Connally v. Georgia, the Supreme Court held that such system was unconstitutional, as it violated the Fourth Amendment’s requirement for a neutral, detached magistrate to issue such warrants. In doing so, it relied on earlier cases reaching similar results for cases where the judge was only paid if the defendant was convicted and fined and where a mayor, doubling as a traffic court judge, imposed fines upon conviction that went to the town coffers.

Given the sad history laid out in Slavery By Another Name and repeated decisions from the Supreme Court about the dangers of mixing financial motives with law enforcement, you’d think such incentives would be a thing of the past. You’d be wrong:

It took almost three quarters of a century, but one Sheriff in Alabama is finally speaking out against a 1939 law that allows for the state’s 67 sheriffs to keep leftover money the state provides to each municipality for feeding inmates in local prisons.

Sheriff Mike Rainey reportedly received $295,294 from the local, state and federal governments to spend on food for the county’s inmate population. But thanks to the old law, Rainey is entitled to pocket any money left over after he fulfills his responsibility of feeding his inmates.

It’s worth noting that Alabama was pretty much ground zero for much of Slavery By Another Name, so no surprise that the system has held on there for so long. But at least Rainey seems to view his charges as something kind of like human:

Rainey also has ordered the jail to serve healthy, fresh food to inmates.

‘Incarceration is punishment. I know some people think you shouldn’t worry about what an inmate eats, but I think it’s a moral issue,’ Rainey said. ‘They’re not getting filet mignon, but they’re certainly not being served green bologna, nor will they be served something like that.’

Wow, what an enlightened attitude. And he’s a Republican. Credit where credit is due. He’s pushing for the law to change, but prior attempts have stalled, so we’ll see.

What’s really pathetic about the whole thing is figuring out how anybody ever ended up with excess funds in this situation:

The state provides sheriffs with $1.75 per day to feed each inmate. The federal government funds inmates housed in state facilities at $3 per day.

Take This Ballot and Shove It

I’ve already said that I won’t be voting for Barack Obama this fall, as I did in 2008. As a result, it most likely means I won’t vote for anybody in the presidential race (sorry GOP friends – I won’t vote for Romney, either). Given the choices on the state and local races further down the ballot, I might skip out on most of those, too. I’ve decided I can no longer play the “lesser of two evils” game. My decision not to vote if those are the only realistic choices is a political statement, just as much as voting for one side or the other is.

Which is why this column (via) rubs me all kinds of wrong ways. In it, Peter Orszag, a former Obama OMD* director and current vice chairman at Citibank (but I won’t hold that against him, much), argues that the solution to our political mess is mandatory voting. Putting the power of the state behind the decision to vote would do all sorts of wondrous things. In other words, Orszag wants to turn the Government into Diddy:

Douche and Turd
Get More: SOUTH
PARKmore...

Orszag cites Australia as a success story for mandatory voting, which has seen its rate of participation jump from levels similar to ours up to 91%. I’m not sure how a 9% failure rate for “mandatory” voting is really a success, but put that to one side for now. I will concede that Orszag is correct that a mandatory voting law would increase voter participation. Most people do what they’re told, after all, particularly where there’s a punishment for not doing so. This is no shock.

But why take that drastic step? For one thing, Orszag argues that if people had to vote they would pay more attention to issues and thus become a better informed electorate.** I’m not sure that follows, but perhaps some people might take it more seriously if they have to do it anyway. However, his citation to another proponent who asks:

Jury duty is mandatory; why not voting?

makes me wonder what planet he’s living on. Because so many citizens eagerly jump at the chance to serve as jurors. There are no jokes about how a jury is comprised of 12 people too stupid to get out of it or anything, right?

Orszag’s second alleged benefit of mandatory voting is a bit rich, coming from a vice chairman of Citibank, namely that it would reduce the influence of money in elections:

Turn-out-the-vote efforts, often bankrolled by big-money groups, would become largely irrelevant. Negative advertising could be less effective, because a central aim of such ads is to discourage participation in the opponent’s camp.

I’ll assume that’s an accurate statement of where the money is spent now and why, but Orszag presents no evidence to support his argument that mandatory voting would make all that money magically disappear. Voters, after all, still have to actually get to the polls (for the most part), giving candidates and parties an incentive to continue efforts to get them there. And, again, if he thinks that all the money pouring into elections will simply evaporate if everybody has to vote, instead of finding other means of expression, he’s living in a fantasy world.

I’ll at least give Orszag credit for wanting to jump start public participation in elections and politics. After all, more democracy is a good thing, right? Who would argue otherwise? Turns out, Orszag did, just a few months ago:

To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.

I don’t even disagree with him that the ability of any group to govern these days is so limited as to make it almost worthless. But, still, I’m not the one trying to get everybody to the polls by force to vote for people who would be hamstrung by the kind procedural limitations Orszag was selling not so long ago.

In the end, what Orsazg doesn’t address is the fact that the decision whether to vote at all, as much as the decision about who to vote for, is a political act. If the slowly slumping number of those who think voting is worth their time concerns folks like Orsazg, trying to force them to vote is the wrong response. The right response is to wonder why people are so certain that voting is worthless and think about how the system might be revamped to change that. But that’s a long, messy, and inconclusive process. Much better to ladle on another legal requirement and declare the problem solved.

* Office of Management and Budget. Not Orchestral Manoeuvres in the Dark, unfortunately.

** He cites research about what Ilya Somin at Volokh calls rational ignorance when it comes to voting. In other words, that since an individual vote is so unlikely to have an impact on an election, it’s rational for voters to spend their time doing things other than becoming informed on the issues. Nobody heeds the lesson of Futurama:

Fry: If I were registered to vote, I'd send these clowns a message by staying home on election day and dressing up like a clown.


Leela: You're not registered?


Fry: Nope. Not vaccinated, either. Besides, it's not like one vote ever made a difference.


Leela: That's not true. The first robot president won by exactly one vote.


Bender: Ah, yes. John Quincy Adding Machine. He struck a chord with the voters by pledging not to go on a killing spree.


Farnsworth: But, like most politicians, he promised more than he could deliver.