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Category: Current Events

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The Market Tells Us What To Think About Alito’s Hearings

Reading conflicting accounts of the Senate’s hearings on Judge Alito, I thought it might make sense to turn to the InTrade electronic futures market. This graph of the predicted likelihood of Alito’s confirmation is somewhat illuminating:

alitolastweek.png

The trading history indicates a small run before the hearings began, but once the questioning started, Alito made a dramatic comeback. The last price I saw quoted was 97 (i.e., the traders think he has a 97% likelihood to be confirmed).

But that isn’t particularly surprising. I data mined dug a bit deeper and found two other interesting results.

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Sitting by Designation on the Supreme Court

This article from the ABA’s online journal discusses the possibility of designating Circuit Judges for service on the Supreme Court when a recusal raises the possibility of a case being affirmed by an equally divided Court.

My reaction is cautiously negative. To be sure, such a program allows for cases to be decided by the Supreme Court, providing uniformity in the interpretation of a particular portion of federal law. I wonder, however, how often circuit splits are allowed to persist because of recusals. Most times, I would imagine, a Justice recuses himself because of a conflict of interest relating to a particular party. When that same issue is raised in a later case by a different party, there is no recusal and the issue is decided.

I wonder how the Court would treat a 5-4 precedent where one of the 5 was a Circuit Judge sitting by designation. On the one hand, there would be little point in allowing the designation if the cases were not to be accorded horizontal stare decisis. The Supreme Court is not a court for the correction of errors (usually), and the Court does not normally take cases that will have no effect on the development of the law.

On the other hand, however, I would be very uncomfortable treating such a case as binding by the regular nine-Member Court in a case where there was no recusal. Imagine, for example, that in a case interpreting Statute X, Justice O’Connor is recused and the rest of the Court splits 4-4. A designated Circuit Judge breaks the tie and holds that the statutory language means A. In the next case raising the issue, Justice O’Connor does not need to recuse. Why should she be bound to A, if she and four other Justices think the correct interpretation is B?

Such a proposal is not new. It is used, as the article reports, by many state supreme courts, including the New York Court of Appeals, where I clerked. By all accounts that system works well, and I know of no instance where there was any acrimony in choosing the judges who were to sit by designation on that court. Additionally, it was proposed by Justice John Paul Stevens in 1988 for adoption by the U.S. Supreme Court itself. See Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court 255-57 (2003).

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Zywicki Compares Kennedy to McCarthy?

I may be misreading this post, but I think that Todd Zywicki is saying that Senator Kennedy is playing Eugene Joe McCarthy to Judge Alito’s Joseph Welch Fred Fisher when discussing the CAP issue. This seems to me a strained analogy, as the commentators to Zywicki’s post are currently thrashing out.

[UPDATE: Two really silly errors in the above post, noted by our commentators, have been corrected.]

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Judiciary Committee to Vote on Alito by September [sic] 17, Specter Hopes

Over at How Appealing Howard links to this Newsday article, in which there is a humorous typo (one hopes) about concluding the hearings and taking a committee vote on Judge Alito’s nomination by September.

More significantly, it notes that the Republicans are expected to continue to stress Judge Alito’s qualifications and the rating the ABA has given him. This seems awfully short-sighted to me. The Republicans want to say to Democrats, “Even your shill organization likes this guy,” but in effect Republican use of the ABA ranking will legitimize the rankings — exactly the result the Republicans do not want for the long term, because of the ABA’s (at least perceived) liberal bias. The more Republicans argue that one’s qualifications should be enough to ensure confirmation, the more difficult it will be to oppose liberal but qualified nominees from Democratic presidents. Senate Republicans should be preparing for that eventuality now instead of just focusing on the present.

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How Much Should Judges Get Paid?

Uh, oh.

In his first year-end report Chief Justice John G. Roberts, Jr. repeats the dubious claim his predecessor William H. Rehnquist made for years: the Republic will fall unless Congress immediately increases the salaries of federal judges.

Roberts says that the low current pay is a “direct threat to judicial independence” because it means judges can serve only “for a term dictated by their financial position rather than for life.” Judges will be forced to take more lucrative private jobs to support themselves in old age. Unless salaries increase substantially, Roberts claims, the federal bench will become less diverse because only the “independently wealthy” will be able to serve.

Federal district court judges make $165,200 a year. Circuit court judges make $175,100. Associate justices rake in $203,000. And the Chief Justice himself is paid $212,100.

Is it really so difficult to make ends meet on these princely sums?

Sure, lawyers in private practice can earn much more. Partners at top-flight firms make several million dollars annually. But federal judges have way more interesting jobs with all kinds of wonderful perks, including a permanent place in history.

If the “low” salary means some people don’t apply to be judges, then so be it. After all, does a lawyer who is in it for the money really have the right temperament to be a judge? Does the average American have a decent chance of receiving justice before somebody who considers a six-figure income a vow of poverty?

Chief Justice Roberts points in his report to the recent increase in the number of federal judges leaving the bench for private practice. That’s too bad. But would the judge who is scraping by on $165,000 (or more) really stick around for the 30% increase Roberts is asking Congress for?

For the record, when jurors serve in federal court they earn $40 per day plus bus fare.

By that standard, judges are paid very nicely, thank you.

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Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

slippery_slope.gif

Dan’s “Rational Security” post and Jason’s provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I’m significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan’s argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren’t permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I’d like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn’t defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff’s witnesses, but that is because they didn’t have the relevant expertise. What is the court to do if the plaintiff doesn’t show up with the right folks, hire an independent security consultant? That isn’t how our system works.

I take Dan’s big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?

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Media Spin: The Power of Headlines

fox-news-delay1a.jpgHere’s a selection of headlines for stories about the Texas court’s recent decision throwing out the conspiracy charge against Tom DeLay but retaining the money laundering charges. But by these headlines, it appears that there were two very different results in the case:

Washington Times, DeLay’s Conspiracy Charge Rejected

Washington Post, Felony Charge Is Upheld For DeLay

New York Times, Texas Judge Lets Stand 2 of 3 Charges Against DeLay

Fox News, Judge Tosses DeLay Conspiracy Charges

LA Times, Judge Upholds DeLay Money-Laundering Charges

CNN, DeLay Conspiracy Charge Tossed Out

MSNBC, DeLay Money-Laundering Charges Upheld

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NYC Subway Searches: A Response to Dan

I was almost persuaded by Dan’s thoughtful post on the NYC subway search decision. But not completely, and I think our disagreements are worth further discussion.

1. Dan’s primary beef appears to be with Judge Berman’s deference toward the government’s weighing of risks of terrorism on the subway, and the likely effects of random bag checks. Dan says that “if the court defers to the government in this regard, it is essentially rubber-stamping the government in this determination.” I think this significantly overstates what the court actually did. The two places where the court really defers to the government are: (1) determining that terrorists are risk averse (Op. at 24); and (2) random searches “add uncertainty and unpredictability to the planning an implementation of a terrorist attack, which, in turn, increases the risk of failure and helps to deter an attack.” (Id.)

I’ve previously argued that these conclusions flow from behavioral research, and I find it unsurprising that the Judge would credit the government’s experts and discount those of ACLU. It isn’t as if the Judge completely ignored the plaintiffs’ contentions and genuflected to the NYPD’s authority. Plaintiffs’ witnesses, as discussed in the opinion, just didn’t have the necessary expertise to rebut powerful testimony from experienced law enforcement officers. A few testified to personal experience with the “intrusive” search policy and their resulting anxiety; one, an attorney and expert in transit design, testified that individuals can “easily evade” the checkpoints; and one, a consultant with a security company, testified that because “you can walk away” from an inspection, the deterrent effect is “close to zero.” (Op. at 19.) However, this last witness had “no discernable training or experience in subway transit security” has “never had access to classified intelligence about terrorism” and (tellingly) has never “evaluated intelligence information for the purpose” of advising on counter-terrorism measures. (Op. at 19.) In short, the court deferred to the government’s experts because they were significantly better informed about the relevant risks than plaintiffs’ experts. That’s simply the way the adversary system works: it isn’t a rubber-stamp.

2. Dan’s second argument concerns the value of marginal deterrence of attacks on the subway. He wonders: “[i]s it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?” This is obviously a tough choice, on many levels, and it is cold blooded and unpleasant to contemplate. (For more on this, see the work of Jonathan Baron.) But it is a decision I ultimately think ought to be left to democratic policy-makers in the sunlight of the public space, and not ill-informed judges in the quiet of the judicial chambers. The NYC subway is essential to the life of the City: it is “the largest, most heavily used subway system in the United States”; its disruption could have “widespread economic consequences . . . and create public fear and demoralization.” (Op. at 8.) If forced to the tragic choice, and if I still lived in NYC, I’d much prefer that resources be spent protecting the subway than a mall. I’m happy that I don’t have to make that choice and live with the consequences, but someone does, and NY politicians seem a good choice. New Yorkers learned of this policy before the last election. If they thought its cost-benefit calculus was as out of whack as Dan suggests, perhaps the result of the vote would have been different.

3. Dan finally argues forcefully that “I don’t believe that ‘minimal’ [privacy loss] can describe a massive program of random searching of people’s baggage.” The Court’s arguments in this regard are: (1) notice (Op. at 38); (2) random selection (Id.); (3) the right to refuse; (Op. at 39); and (4) limited scope of a brief search to determine if there are explosives present. Dan may feel that privacy loss is social, i.e., that minimal personal intrusions ought to be added up, to create an interpersonal mix of disutility. But it is not clear to me that this is possible or that this should be the law. To the extent that we’re talking about individual privacy loss, I agree that the court is somewhat cavalier about the choice to exit the search and the subway, which is in tension with the opinion’s recognition of the subway’s central importance to the life of ordinary New Yorkers. But still, it seems like a very small price to pay for increased safety.

Also, when reading the decision it occurred to me that the police likely were happy to be sued in this case, because it increased attention paid to the program, got extra media exposure, and generally made it somewhat more likely that the program will have the deterrent effects its boosters claim for it.

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Mexico To US: We’re Sorry About Calling You Barbaric

That seems to be the message of the Mexican Supreme Court’s recent decision to allow extradition to the U.S. of life-imprisonment eligible accused criminals. Duncan Hollis, my colleague and friend who is guest blogging at Opinio Juris, has the whole story. He suggests that Mexico is being compelled to forgive us by recent Congressional conditional appropriation legislation.