Prince tried it, but who actually called him “The Artist Formerly Known as Prince?”

Check it out, and share your thoughts in the comments, either here or there.

Reading Korematsu and the literature on the Japanese American internment is very important. But there’s no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.

There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern [...]]]> In a few minutes I’ll be heading out to the site of the Mindoka Relocation Center for Japanese Americans in WWII, near Twin Falls, Idaho, with a busload of surviving former internees. We’ll be touring the site with National Park Service guides, and later we’ll visit a reconstructed barrack.

Reading Korematsu and the literature on the Japanese American internment is very important. But there’s no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.

There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern Idaho (Minidoka), and southern Arkansas (Rohwer and Jerome). If your travels ever take you through any of those regions, stop by. It’ll be worth it.

Kim Roosevelt, by contrast, actually does it. He talks about how he does it here.

Or is he just saying that the Court has wrongly cheated President Bush out of his entitelement to suspend civil liberties?

That’s what Kim Roosevelt wants to ngo know.

He calls the decision “apocalyptic” for inmate civil rights suits. Head on over and tell him what you think.

But not to worry! Your daughters can download the “nationalist” music of Prussian Blue (a/k/a Mary-Kate and Ashley Eichmann), pictured above, at the click of a mouse! As this fan notes in his review of the dierndel-draped darlings’ music, “the first three songs on the new CD have nothing to do with race at all. They are geared more toward the young teen set and of course a young girls favorite topic, boys.”

Consider this recent post by someone who calls him/herself “NewAgeGerman, “from the Prussian Blue fansite forum: I received my copy of The Path We Chose in the mail [...]]]> If your summer plans included a pilgrimage to the Hitler Shrine in southeastern Wisconsin, it turns out that you’ll need an invitation from its owner.

But not to worry! Your daughters can download the “nationalist” music of Prussian Blue (a/k/a Mary-Kate and Ashley Eichmann), pictured above, at the click of a mouse! As this fan notes in his review of the dierndel-draped darlings’ music, “the first three songs on the new CD have nothing to do with race at all. They are geared more toward the young teen set and of course a young girls favorite topic, boys.”

Consider this recent post by someone who calls him/herself “NewAgeGerman, “from the Prussian Blue fansite forum:

I received my copy of The Path We Chose in the mail Monday and proceeded to listen to it several times end to end (I work from home so I play whatever music I want . While the whole album is fantastic, “Not a Problem” is my favorite, very poignant lyrics.

Though listening to “When I’m With You” & “Stranger” before ordering the CD gave me an idea, I wasn’t prepared for how good the album is. It explains why the mainstream media has been so vicious, they fear that people might actually listen up, and wake up.

On that note I want to wholeheartedly thank PB & their family for helping wake me up. Very long story short: I grew up in SF and tried my best to be proud of being white. Despite how racist everyone else was, I REALLY tried to open minded and “liberal”, though over the years that began to erode.

The proverbial last straw occurred about a month ago. I caught a news blurb online about PB (I don’t watch TV so I hadn’t heard of them before). I looked at all the negative articles about them (almost word for word copies of each other) and decided to investigate. I couldn’t believe all the lies and vicious attacks (from so-called understanding kind-hearted liberals) that were directed at these two young girls. It made me sick and I stopped identifying myself as a liberal at that point.

All of a sudden it all became clear to me. I registered at Stormfront (NewAgeGerman) after reading the threads there and realized that the people there shared my beliefs as well as my heritage. So here I am: White, proud, and awake.

One wonders: how many young and impressionable listeners is this music reaching?

Drop on by and say hello.

I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court’s [...]]]> In this NYTimes article on hesitations about legislation to establish military tribunals, this passage stood out:

Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.

I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court’s decision in Ex parte Endo.

The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight “relocation centers” that the War Relocation Authority was operating at that time.

What’s interesting to me is that the Administration spent the summer and fall of ‘44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court’s decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.

Compare this to the disarray in Washington over the last couple of days.

It’s quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.

Why am I not surprised?

An interesting thing to think about, I suppose.

But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the [...]]]> In a post titled “Evading Hamdan,” Steve Bainbridge notes that there’s a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.

An interesting thing to think about, I suppose.

But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?

Steve says he’s not advocating the idea of jurisdiction-stripping, but simply mentioning it. I’m not so sure: when you say, as Steve does, that you doubt Congress has “the guts” to strip the courts of jurisdiction, and when you muse publicly about whether “anybody in Congress will have the chutzpah to run it up the legislative flagpole” — and indeed, when you frame Hamdan as a decision to be “evaded” — some people might think you believe that jurisdiction-stripping would be a good idea. That’s what I’m inferring from Steve’s post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he’s floating.

Answer below the fold.

Objectionable neo-fascism.

Or so thought the censors of the Soviet Union, who banned their music on that basis.

Pink Floyd were banned for “distorting Soviet foreign policy.” The Village People were too “violent.” (!) And Donna Summer was banned for “eroticism,” though I would have thought that “basic suckiness” would have been reason enough.

Of course, appellate crimlaw folks know all about the “harmless error” doctrine of Chapman v. California and the important distinction (drawn in ]]> Yesterday’s SCOTUS decision in United States v. Gonzalez-Lopez is the most recent installment in a fascinating debate about the function of appellate reversal and the value of procedural rights in criminal cases.

Of course, appellate crimlaw folks know all about the “harmless error” doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between “structural errors” in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and “trial errors” in the criminal process (which require appellate reversal of convictions unless they are “harmless beyond a reasonable doubt” to the outcome.

The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant’s not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn’t allow that lawyer to represent the defendant or to participate in the trial at all.)

The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.

Appellate reversal of a conviction is a remedial tool: it’s by far the most direct method that an appellate court has to send messages to trial judges, trial lawyers, and the police about what’s crucially important at criminal trials and in criminal investigations. Sure, courts can fill their opinions up with dicta about the importance of this or that right or procedure in the trial and investigative process, but reversals are the things that judges, lawyers, and cops really pay attention to.

For this reason, the decision about whether to place a particular trial or investigative error in the “automatic reversal” category or the “reverse-only-if-the-error-made-the-conviction-unreliable” category is a very important decision.

It’s a decision about values. In making the call, the appellate court is asking itself a very important question: what are the values in the criminal trial and investigative process that we appellate judges ought to be enforcing?

This is precisely the point on which the majority and the dissent parted company in yesterday’s opinion. The 5-Justice majority (led by Justice Scalia) sees the right to choose an attorney as serving a value of constitutional magnitude – choice about representation – whose importance is a constant in all trials, not a function of the facts of a particular case. For the majority, it’s a right grounded in autonomy – we might even say a dignitary right of the defendant to control the basic question of who will speak for him, and against the government, in a trial for his liberty.

The 4-Justice dissent (authored by my old boss Justice Alito) sees no point in this. If the lawyer who actually did represent Mr. Gonzalez-Lopez was an effective lawyer, says the dissent, then there’s no point in rolling out the big gun of appellate reversal. The conviction was fair, and an accurate reflection of the defendant’s guilt. Once an appellate court has assured itself of the fairness and accuracy of the verdict, its function is really at an end. To whatever extent the 6th Amendment protects the defendant’s autonomy and dignity interests, the dissent effectively implies, those things aren’t our department up here on appeal.

I note two final things.

One of them is the breadth of Justice Alito’s position. “The touchstone of structural error is fundamental unfairness and unreliability,” he says on page 8 of his dissent. In this part of the opinion he challenges something that I think we had all assumed was settled: namely, that if an error goes in Fulminante’s “structural error” rather than “trial error” column, it requires automatic reversal of a conviction. Justice Alito argues here for the creation of a new category: “harmless” “structural” errors. This would be a significant shift in the law. And he has four votes for this proposition; none of the other dissenters expressed discomfort with this portion of the dissent.

The other final thing I note is that lots of precedent contradicts Justice Alito’s position about structural error. Consider, for example, race discrimination in the selection of a grand jury. Under current law (Vasquez v. Hillery), a defendant’s conviction must automatically be reversed if the grand jury that indicted him excluded blacks on account of their race. It is of no moment that the grand jury had enough evidence to indict, or that a properly selected trial jury convicted the defendant after a fair trial. It’s structural error, and the conviction gets reversed. The value that appellate reversal is enforcing in a case like this has nothing to do with the reliability of trial verdicts. It has to do with the value of antidiscrimination in the criminal process.

Or consider the right to a public trial. It is quite possible to imagine trials that would be far likelier to produce “reliable” outcomes (in the sense that Justice Alito means) if they were conducted in private. Yet the denial of a public trial is a structural error requiring automatic reversal; there’s a value in the public-ness of a trial that doesn’t implicate reliability but that merits appellate policing.

Or consider the right of a criminal defendant to represent himself, established in Faretta v. California. Surely the results of many trials of self-representing defendants would be more “reliable” (in the sense that Justice Alito means) if the defendants were forced to be represented by a competent lawyer. Yet the denial of the right to self-representation is automatically reversible structural error. There’s a value to the right to self-representation (grounded, like the right in Gonzalez-Lopez, in the defendant’s autonomy and dignity) that deserves appellate policing without regard to outcomes.

Justice Alito seems to have four votes to take the Court in a very different direction on this very important question.

(Hmmm. This blog post ended up feeling suspiciously like a rough draft of a law review article. Especially for me. What has come over me?)

Answer (as if you needed it) below the fold.

Michelle Malkin, “Whitewashing Asians Out of Racial Preference Debate,” Seattle Times, May 26, 1998, at B4.

In the piece, she complains that as an Asian American, she might someday not qualify for racial set-asides for minorities.

I am not making this up.

On the other hand, the idea that Marilyn Monroe took her vows under a chupah is a surprise.

Perhaps they stepped on a martini glass.

I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this: America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents [...]]]> Have you heard of Mark W. Smith? He is a ‘95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?

I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:

America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.

So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:

Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?

Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.

Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.

These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.

Why not?

Not not sure whether to bring our daughters, who are 12 and 9. Apparently there isn’t much sex, but a lot of gore.