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Convictions: Slate's blog on legal issues
May 2008 - Posts
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Can't let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse's report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves Read More...
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Rick Hills has a series of excellent posts on slippery slopes (see here , here , and here ). He argues that slippery slope arguments should be regarded with suspicion, and he singles out the refrain from opponents of gay marriage: If you permit gay marriage, Read More...
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There's a University of California-Berkeley alum in my household, and so we're frequently inundated with promotional materials from the university. Last week we received the latest issue of The Promise of Berkeley , a big glossy production designed to Read More...
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With the conviction of elite track coach Trevor Graham, the government scored yet another victory in it' war on elision. Graham joins a legion of high-profile defendants (Scooter Libby, Lil' Kim, Martha Stewart, etc.) who have been prosecuted and convicted Read More...
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The ink is barely dry on the California same-sex opinion, but the Governor of New York is asserting the authority to revise hundreds of laws and regulations to welcome same-sex couples to the Empire State, even though that state's highest court upheld traditional marriage between a man and a woman. No sense letting the separation of powers ruin a good thing. Read More...
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Tribe's response can be found on Balkinization: http://balkin.blogspot.com/2008/05/larry-tribe-on-liberty-and-equality.html Read More...
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Mark Tushnet has speculated that with nothing left to lose, and the Democrats likely to gain political power in the near future, the Republican-appointed justices on the Supreme Court might vote to overturn Roe v. Wade because they no longer fear that Read More...
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Judicial Activism is a largely fictitious issue that won't play in the 2008 campaign. The friendly differences of opinion among Chief Justice Roberts and Justices Alito, Scalia and Thomas illustrate why not. Read More...
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The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that Read More...
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When the California Supreme Court included same-sex couples within the "fundamental right" of marriage, it was declaring the "social goods" of marriage to be too important to be kept from individuals on the basis of their sexual orientation. The ruling must not be interpreted as saying marriage -- and the marital family -- is unimportant. Read More...
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In his interesting post , Doug Kmiec argues that the U.S. government should adopt French child-subsidy policies in order to encourage Americans to have more children. But unless within-family reproduction is good in itself—more on this in a moment—there Read More...
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Now that the California Supreme Court has eliminated distinctions drawn on sexual orientation, is it time to recognize an even more important distinction between marriages -- those that devote themselves to having and raising children and those that don't? Read More...
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Diane makes an excellent point that no one appears upset with the D.C. Circuit's reliance on foreign practices in the recent currency case. In my view, the lack of reaction helps to confirm a theory I offered in a blog post in 2005 in response to an essay Read More...
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Was struck by something in this week's decision by the U.S. Court of Appeals for the District of Columbia Circuit in The American Council of the Blind v. Paulson (judgment available here ). It was not the court's 2-1 holding that, by refusing to design Read More...
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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. Read More...
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After all, legislation is property itself. Or so suggests the Oregon Senate . Read More...
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Deborah , I too get the sense (from gay service members who have recently left the military) that "don't ask, don't tell" is generally disfavored by a broad segment of the military community. And I would be delighted for the Supreme Court to use this Read More...
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Phil , I don't understand your post's statement about how the Court of Appeals for the Armed Forces in United States v. Marcum didn't "cite Bowers v. Hardwick and the illegality of homosexuality per se." This implies that the Marcum court could properly Read More...
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Good point, Eric , I had confused the respondents who had said they were "unfavorable" toward a justice with those who were "not sure," and it would be the latter group that would contain most folks who don't know any justices. The former group might Read More...
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The Justices of the Supreme Court has been using the facial as applied distinction to reach consensus among themselves but it does nothing to yield similar agreement in the lower courts. Indeed, the Fourth Circuit seems to have found new ways to circumvent even the minimal consensus achieved by the justices. Read More...
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I'm not sure why the inconsistency noted by Diane between the Findlaw and Rasmussen poll favors the Findlaw results. It could be that Rasmussen is right and Findlaw is wrong. A possible (partial) explanation for the inconsistency: Findlaw polls "American Read More...
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I have a slightly different hypothesis for Eric and the new Rasmussen poll . Eric is right to point to the odd disjunction between favorable institutional ratings and the lame reviews for individual justices. But the poll also suggests something fairly Read More...
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I agree that much of the Rasmussen poll puzzle presented by Eric is solved by the Findlaw survey results presented by Diane . I take Eric’s puzzle to be why Americans rate the Supreme Court more highly than its constituent members (especially when we Read More...
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The Rasmussen poll's (un)favorability ratings for individual Supreme Court justices surely intrigue. But how can they be squared with repeated polls indicating Americans don't even know the names of the nine folks on the court? Consider FindLaw's December Read More...
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Kenji's question about whether the Supreme Court would ever overturn the military's current "don't ask, don't tell" (DADT) policy about homosexuality raises all kinds of interesting questions—not the least of which, as Phil's response suggests, is about Read More...
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Here are some odd poll results from Rasmussen Reports. Americans think that the Supreme Court does a good job but that the Supreme Court justices do a bad job. For the court as a whole, 41 percent of voters rated the Court good or excellent; 19 percent Read More...
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Gerken Opening Post (Round 2) Yesterday Kenji Yoshino and I debated whether, as a purely predictive matter, liberty or equality offers the more promising framework for litigating gay rights claims (our posts are here and here , with short essays on the Read More...
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Kenji , I, too, think the Supreme Court will likely side with the military in any challenge to "don't ask, don't tell" that percolates up through the courts. The thumb of judicial deference to the military is heavy indeed. Despite what we've seen in the Read More...
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With all this talk of the possibility of Hillary Clinton on the Supreme Court, I'm surprised no one has mentioned the most obvious precedent for it. Not so long ago, a former U.S. senator and a loyal Democrat was confirmed to the Supreme Court. Like Hillary, Read More...
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There must be something in the water in the West Coast. A few hours ago, the 9th Circuit Court of Appeals (sitting in Seattle) handed down another pro-gay decision in Witt v. Department of the Air Force . Like the California Supreme Court decision issued Read More...
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The prospects for a Justice Clinton, Hillary or Bill, are not great, but should the Democrats sweep up to 12 new seats, the speculation is not other-worldly, except perhaps to the Chief Justice and Justices Alito, Scalia and Thomas. Read More...
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In case you missed what in most news cycles would've been headline news, Defense Secretary Gates told a subcommittee of the Senate appropriations committee yesterday that efforts to close Guantanamo were "at a standstill." CNN quotes Gates testifying: Read More...
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I like James Andrew Miller's op-ed arguing that Obama should promise Hillary Clinton a position on the Supreme Court, if only because it lays bare so innocently the popular wisdom about the role of the court in American politics. On this view, the court's Read More...
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A few months ago, my colleague Heather Gerken and I had the pleasure of attending a symposium at the University of Tulsa Law School to honor the work of Laurence Tribe. We both spoke on Tribe's theories of liberty and equality, focusing on the case of Read More...
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Jack and Phil : I find the notion of an easy confirmation for the future Justice Hillary Clinton improbable if not impossible for the reasons Jack suggests: The conservative base cares about the judiciary above all. They’d fight even the next moderate, Read More...
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Jack, thanks for flagging James Andrew Miller's op-ed recommending Hillary Clinton for SCOTUS. I admit it's an intriguing idea, but I think Miller misses the most important argument for Hillary when he writes, "The fact that she hasn't served on a bench Read More...
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James Andrew Miller argues in the Washington Post that Barack Obama should promise to nominate Hillary Clinton for the next Supreme Court vacancy. It's unlikely to happen, although it's not unprecedented. continue reading at Balkinization ... Read More...
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Convictions contributors Dahlia Lithwick and Doug Kmiec took to the airwaves today to discuss the California gay-marriage decision on NPR's On Point program. The show also included Crystal Carreon from the Sacramento Bee ; Geoff Kors, executive director Read More...
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Diane , Adam , I wonder if the difference between you is more about the meaning of the term "lawyer's lawyer" than about Chief Justice Roberts. As I have heard the term used, a "lawyer's lawyer" is a lawyer whom the top members of the bar see as a top Read More...
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The Justice Department released its inspector general report (PDF) today clearing the FBI of most wrongdoing in connection with the coercive interrogations (read: torture) of prisoners at Guantanamo Bay, Cuba. For the most part, the report concludes that Read More...
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Adam , I meant neither to endorse "a longtime practitioner" nor to exclude law professors or sitting judges from consideration for court vacancies. Persons holding any of these positions may qualify as "lawyer's lawyers" or, indeed, "judge's judges." Read More...
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Diane, we're in full agreement on the point that the nation would benefit from the appointment of a "lawyer's lawyer" to the Supreme Court . While I can think of a number of federal judges (and even a couple of law professors) who I think would do a fine Read More...
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It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court. This is not to say that Stevens, a Republican appointee, belongs in every pantheon of Read More...
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I'll get to Phil's McCain-Obama-and-the-courts question in a sec. But I first have to say that while I'm generally a big fan of David Savage's at the L.A. Times , there are parts of this latest piece that sound like they could've been written by Rush Read More...
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Contemplating abortion and same-sex marriage as beyond all governmental power to either approve or disapprove. Might government silence over topics where the culture is deeply divided be part of Senator Obama's national reconciliation effort?
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Robert Weisberg, of Stanford Law School, offers a guest post: Dahlia Lithwick’s latest column about the California marriage decision shows how the availability of the "activism” trope is more than the intelligence (or other virtues like rationality, sanity, Read More...
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David Savage writes in today's Los Angeles Times about the deep divide between the Obama and McCain camps over what kind of judges should be appointed to serve on federal courts, including the Supreme Court. Savage boils down the issue to this: Sen. McCain Read More...
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... there is a Republican core to yesterday's California marriage decision . Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for Read More...
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A fairly remarkable fact that has not gotten the attention it deserves: If I'm not mistaken, of the eight justices in the majorities in Goodridge (Massachusetts) and In re Marriage Cases (California), seven of them are Republican appointees. And the current Read More...
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The California same-sex marriage decision is unquestionably a landmark. The question is: Will this extensive opinion affirming same-sex marriage be an opening to new found respect and accommodation or acrimony and division? There is much to applaud, much to study, and a great deal of reassurance still needed on both sides. Read More...
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