Saturday, September 28

Back to Iraq

Dwight Meredith (who is quickly becoming a must-read) and Greg Greene have terrific posts about the bullying partisanship behind the Bush administration's rhetoric and the clear potential of that rhetoric to backfire on the administration, both internationally and domestically. And Tim Dunlop continues his analysis of the administration's reliance on exaggerations, evasions, and outright lies.

Serious times call for serious leaders. But though Bush can scowl with the best of them, this administration seems incapable of formulating a serious argument, one that acknowledges the need to persuade and not simply to stir up those already convinced. Assuming that we do go to war with Iraq, there's little doubt that our military will triumph, probably easily. But the blustering, bullying, black-and-white manner in which the administration is leading us into war has the potential to do serious damage to this country's interests for years to come.

Friday, September 27

The Central Park Case

TalkLeft and Just One Minute have extensive, thoughtful commentary on last night's ABC Primetime Live report about recent developments in the 1989 Central Park wilding case. I taped but have not yet watched the report (I was busy last night watching Dr. Romano having his arm severed by a helicopter rotor on E.R.—ewwww!). If I have anything to add after watching the tape, I'll report back.

More on Estrada

My comments yesterday seem to have generated a bit of heat, as I've been criticized both by other bloggers and in a number of emails. The critics have raised a number of points, which, taken together, make me want to emphasize that my conclusion about Miguel Estrada's fitness for the federal bench is tentative; they do not, however, persuade me that I was necessarily wrong. I'll consider my critics' points in turn.

* I relied on an article in The Nation, a highly partisan and therefore dubious source. I'm generally not a big fan of The Nation, a publication with an editorial stance well to my left; I'll concede it's not the best possible source on which to rely. On the other hand, the quotes in The Nation either were drawn from other publications or have been independently confirmed. More to the point, those who have raised this criticism generally point to contrary evidence from highly partisan conservative sources. Just as you probably won't persuade a conservative with arguments drawn from The Nation, you are highly unlikely to persuade a non-conservative with references to publications like the Wall Street Journal editorial page and the National Review. My weakness, in other words, is shared by my critics.

* Paul Bender's current assessment of Estrada's fitness is inconsistent with his contemporaneous evaluations of Estrada's work. Two points here. First, when Bender wrote his evaluations of Estrada, he was not assessing Estrada's fitness to serve a lifetime appointment as appellate judge. It's entirely possible to think that someone is a fine subordinate attorney while simultaneously thinking that that person is ill-suited for the bench. Second, before I started teaching, my practice included a substantial component of employment law. It's quite common for supervisors—even intelligent, legally sophisticated supervisors—to refrain from placing negative comments in subordinates' employment files even if the supervisors have problems with the subordinates' performance. Bender's formal evaluations certainly have some tendency to undercut his current description of Estrada's fitness, but they don't necessarily invalidate it.

* Bender is an extreme partisan whose word should not be trusted. The sources for most of these evaluations are themselves highly partisan—the articles from the Wall Street Journal editorial page and the National Review cited above, for example. Lawyer-blogger Sam Heldman undertook his own investigation, discussing Bender with a friend who asserted "that Bender is the farthest thing from a partisan, that he is mild and scholarly and warm and honest and the kind of person who would not say such a thing unless it was perfectly true." I don't know Paul Bender personally, but it's clear that not everyone regards him as a relentless partisan.

* The word of two anonymous unsuccessful candidates for Supreme Court clerkships should not be trusted. The individuals in question have affirmed their statements when questioned by the Washington Post. And their stories strike me as eminently plausible, given experiences I had in my own (failed) efforts to obtain a Supreme Court clerkship (I should note that I had no dealings with either Estrada or Justice Kennedy in my own applications, and, since I've mentioned previously on this site that I interviewed with Justice Souter, I should also emphasize that I have no reason whatsoever to question his hiring process, even though he did not hire me).

* Estrada did not impose an ideological litmus test when he participated in the hiring process at the solicitor general's office. One of my correspondents interviewed with Estrada while she was applying for a position with the solicitor general's office; she relates that, though her liberal leanings were clear from her resume, Estrada supported her candidacy. Of course, we're talking about the Clinton administration's solicitor general's office. An effort by Estrada to prevent the hiring of liberals in that office would have been quixotic indeed.

I'll concede that the argument against Estrada is not the strongest argument that's appeared on this site. But there's a reason for that. Miguel Estrada is largely an unknown. He has a very limited public record, so it's hard to know what to make of him, and we wind up grasping at fragments and viewing them largely through the prism of our own hopes and fears. David Brooks of the Weekly Standard had an interesting comment on last night's All Things Considered. He was talking about Iraq, but I think the observation applies equally to the debate over the Estrada nomination. He said:

When we have a debate about [an] unknown[], it brings out all our latent prejudices, which we then project onto that debate, and it's turned quite nasty in a week.

Democrats, suspecting (with some reason) a Republican effort to pack the courts with hard-right ideologues, and remembering all the games that the Republican Senate played with President Clinton's nominees, understandably view with some suspicion a nominee who seems to have been selected in part because he doesn't have an extensive record that can be subject to scrutiny. The aggressive partisan backlash to Democratic efforts to probe the nominee's record in light of the accusations that have been raised only serves to heighten those suspicions.

Update: Another critic heard from. William Sulik opines that I was having an off day and gently suggests that I should get out more. Sadly, between the job and the baby, that's unlikely.

Thursday, September 26

Against Estrada

Confirmation hearings begin this morning for Miguel Estrada, President Bush's nominee for a judgeship on the U.S. Court of Appeals for the D.C. Circuit. Mr. Estrada brings to the confirmation proceedings an unquestioned intellect and a sterling credentials—degrees from Columbia University and Harvard Law School, a judicial clerkship with Justice Anthony Kennedy, terms of service as assistant United States attorney and assistant solicitor general, partnership at a powerhouse D.C. law firm. Mr. Estrada also brings with him a reputation as a rigid conservative ideologue. Last week, when discussing the nomination of Prof. Michael McConnell to the Tenth Circuit, I wrote that ideology, standing alone, should not serve as a disqualifier, provided that the nominee was fair-minded and committed to taking opposing arguments seriously. By all accounts, Prof. McConnell meets that standard. By appearances, though, Mr. Estrada does not.

Paul Bender, Estrada's supervisor in the solicitor general's office, stated in an interview with the Los Angeles Times last year that Mr. Estrada was so "ideologically driven that he couldn't be trusted to state the law in a fair, neutral way." (The quote reappears in a recent article in The Nation). The Nation also reports discussions with two former applicants for clerkships with Justice Kennedy, for whom Mr. Estrada performed a screening role. Both applicants report that Estrada was openly determined to protect Justice Kennedy from the pernicious influence of liberal law clerks.

The possibility of bitterness on the part of the former would-be law clerks can't be overlooked (it's a bitterness with which I'm well familiar, having interviewed, without success, for clerkships with three different Supreme Court justices). But, taken in conjunction with Prof. Bender's assessment of his former subordinate, these statements raise serious questions about Mr. Estrada's willingness to approach cases with an open mind and to treat precedent honestly rather than as putty to be manipulated in the service of an ideological cause. Ideology standing alone, in my opinion, should not be a disqualifying factor in all but the most extreme cases. But someone who is as driven by ideology as Mr. Estrada appears to be is ill-suited to the judicial role and does not belong on the bench.

Wednesday, September 25

Silence is Golden

Dwight Meredith of P.L.A. has an update on the dispute between classical music producer Mike Batt and the estate of composer John Cage over whether Batt's composition, One Minute of Silence, infringes on the copyright in Cage's work, 4' 33". The update, drawn from The New Yorker, includes the astonishing news that Batt is releasing a recording of his work by classical ensemble The Planets as a single this week, as well as a description of a concert this summer in which Batt's piece and Cage's composition were played back-to-back. Dwight (who did not post on Monday) follows up by claiming a copyright in the absence of blog posts. Bloggers, if you want to avoid future legal action, get to work!

More seriously, Dwight has an interesting observation about the manner in which the Bush administration gathers information in support of its policies.

Tuesday, September 24

Conservative Myths

Howard Bashman has his usual collection of worthy and interesting links today. Two in particular caught my eye. First, Prof. Peter Rubin of the Georgetown University Law Center has a column at FindLaw titled "Conservative Jurists and the Myth of 'Strict Constructionism." In the column, Prof. Rubin argues that, whatever the rhetorical appeal of strict constructionism, many conservative jurists are not faithful to its dictates when it comes to construction of statutes that they disfavor. This argument resonates with me, as I have argued in a law review article that textualism (a form of strict constructionism) neither constrains judges as powerfully as its advocates claim it does nor leads to consistent, predictable results. I've also blogged about the issue—see here, with a follow-up post here (and I still owe Jeff Goldstein the third part of my planned trilogy; if he ever resumes blogging, I promise to follow through).

Second, Howard links to a statement by Sen. Orrin Hatch of Utah, in which Sen. Hatch decries the consideration of ideology in the Senate Judiciary Committee's evaltuation of judicial nominations. In his statement, Sen. Hatch asserts that during the Clinton administration he never voted against a judicial nominee because of the nominee's ideology. This statement, while perhaps technically true, scores major points for gall. The reason Sen. Hatch never voted against nominees based on ideology is that, as then-chair of the Judiciary Committee, he refused to schedule confirmation hearings for an enormous number of Clinton's nominees. Rather than voting based on ideology, in other words, he manipulated the Senate's rules to kill nominations without votes, based apparently on ideology (Sen. Hatch could not seriously contend that all, or even many, of the nominations for which he refused to hold hearings involved nominees who were "unqualified" based on their credentials and judicious character). Far from being thoughtful commentary, Sen. Hatch's statement reveals him once again to be a hypocrite of the first order. Serenity now!


I have several longish posts in the works, but I have a very busy day today, due in part to class and other job-related obligations, and due in part to the fact that my wife's sister is in labor. Given Blogspot's outage this morning and its tortoise-like post-outage speed, I doubt many people will be checking here this morning anyway. But just in case, let me commend a few posts on other sites:

* Over the weekend, Kevin Drum observed one of the principal problems with the administration's rhetoric on Iraq: it's calculated not to persuade those on the fence but to rally those already in favor of attack:

So after a long post, this is what it comes down to: every time Bush opens his mouth it sounds to me like he's addressing Bob Jones University. He's feeding red meat to the already converted, but a big part of that red meat is the shared worldview in which liberals are the enemy, Democrats are the enemy, and effete Europeans with their treaties and their high-minded moralizing are the enemy. Is it any wonder that liberals, Democrats, and Europeans haven't responded very favorably to this?

This strikes me as an important observation, and it ties into the problem Josh Marshall identified last week: the administration's over-reliance on throwaway lines and demonstrable lies. Those in the administration's corner may not be troubled by such rhetoric, but for those not yet convinced, the administration's tactics are more likely to create further doubt than to persuade. I'm still on the fence about Iraq. I had hoped for stronger action in 1998, when Iraq refused to readmit weapons inspectors, and there's no real question that Saddam Hussein is a bad man who has pursued and continues to pursue weapons of mass destruction. But I'm not convinced that those facts, standing alone, justify a unilateral pre-emptive invasion, and the administration's rhetoric has not been even remotely calculated to bring me over to their side. (Tony Blair's just-released dossier on Iraq, which I won't be able to read until this evening, may prove more persuasive; it can be downloaded in PDF form here).

* History professor Tom Spencer (whose permalinks are sufficiently well-hidden that I couldn't find them) five days ago anticipated the analogy that Paul Krugman draws today between the current situation with Iraq and the Spanish-American War. Prof. Spencer now asks, professorially, for feedback on whether or not the analogy is appropriate.

* Jason Rylander yesterday noted the Democrats' renewed effort to attract the youth vote. About time.

Monday, September 23

The Wilding Case, Continued

On September 9, I commented on the case of the Central Park jogger who was raped and severely beaten in 1989. Five youths from Harlem were convicted for the rape and battery, which allegedly occurred during an episode of "wilding"—rampant, random violence by large groups of adolescent males. In late August, Matias Reyes confessed to the crime, claiming that he acted alone. In my commentary, I didn't focus on the merits of the case, but instead used it as a jumping-off point for considering the wisdom of granting the Justice Department the broad new powers that it seeks as part of the war on terror; implicit in my commentary, however, was a conclusion that the five defendants, whatever else they might have done, had not committed the rape and battery.

In a thorough and lengthy series of posts (one noting my commentary), Tom Maguire of Just One Minute takes issue with the conclusion that I (and several other bloggers) reached—the conclusion that Reyes's confession, in conjunction with the DNA evidence, means that the original five defendants were innocent. Tom is correct to note that the separately-obtained confessions of the original defendants, whether coerced or not (and the trial judges determined that they were not) corroborated each other in important details; there was, in other words, sufficient evidence at the time to sustain the original convictions. And Reyes's willingness to swear now that he acted alone need not be taken at face-value—Reyes is serving a lengthy prison sentence for other offenses, and the statute of limitations on the Central Park case has run, so he faces no additional sanction.

It is certainly possible that Reyes's confession is accurate, that he acted alone, and that the five defendants were wrongly convicted of a crime they did not commit. It's also possible that Reyes's confession was partially false, and that the confessions of the original defendants (most of whom claimed that they beat and held down the victim for others but did not themselves rape her) were truthful. That I leapt to the conclusion I did, without reviewing the evidence, doesn't speak particularly well of me as a law professor or as a commentator. There are undoubtedly cases of prosecutorial over-reaching and of defendants being wrongly convicted of crimes they did not commit. But it's not yet clear that this is such a case, and I should not have assumed that it was.

(Updated to correct a spelling error).

Rethinking My Allegiances?

Dwight Meredith of P.L.A. compares the Republican domestic agenda to the 2002 New York Mets. The comparison is not meant as a compliment to either the Republican Party or the Mets:

On paper [the Mets] looked very formidable. Some picked them to be in the World Series this year. Championships, however, are won on the field and not on paper. After suffering a season of underperformance, injuries, dissention and a lack of leadership, the Mets are currently 72-79, reside in last place in the National League East and are whopping 24 games behind the Braves. No one is talking championship now.

The Republican domestic agenda is similar. Republicans craft policies that, on paper, look good. Those policies, Republicans reason, will negate Democratic issues, please key supporters and constituents and help them win elections. Once those policies are tested in the marketplace, however, they play like the 2002 Mets. Three examples of such policies are Social Security, Medical Savings Accounts and school vouchers.

There's more; the analogy isn't perfect, but it's accurate enough to be alarming. It never occurred to me that being a Mets fan was the equivalent of rooting for Social Security privatization. Is it too late to change allegiances?

Sunday, September 22

Wines of the Week
Turley Wine Cellars Old Vines Zinfandel 1997
Neyers Pato Vineyard Zinfandel 1996

Now that the summer weather has finally broken, and the sweaters have emerged from the closet, it's safe once again to reach for a big, high-alcohol wine like zinfandel. Zinfandel is one of California's great contributions to the wine world, but the best of them are like wool suits, completely wrong for the heat of midsummer. It's a three-season wine, in other words. So it seems appropriate to celebrate the return of its seasons.

Helen Turley is one of the superstar names among California wine aficionados, and her single-vineyard zinfandels routinely fetch a hundred dollars or more on those rare occasions when they can actually be found. Are they worth that? No, at least in my opinion—even if you''re willing to accept that a consumable liquid can merit a three-figure price, these wines, outstanding as they are, lack the complexity to justify such an elevated pricetag. The price here is a function as much of scarcity as of quality

That said, the quality is quite high indeed. The Old Vines Zinfandel occupies a slot in Turley's lineup below the single-vineyard bottlings, but it is still a top-rank zinfandel, with an aroma bursting with blackberry, boysenberry, and blackcurrant fruit and shaded by hints of caraway seeds. The wine offers powerful and pure black fruit flavors, with good length. Like many zinfandels, though, the wine is powerful but not deep—given the intensity of the initial impact and the 15.1 percent alcohol content, the wine has surprisingly little heft, at least when compared with a top-notch syrah or shiraz. In my experience, this is a characteristic common to zinfandels, at least when young, and it's the principal reason I prefer syrah and shiraz. Still, there's no question that Turley's Old Vines bottling is an extraordinary zinfandel.

Neyers is another highly regarded small producer of zinfandel, and its Pato Vineyard bottling regularly receives rave reviews. The 1996 seems flawed, however. There seems to be a great deal of oak here, more than even the ripe, intense fruit here can comfortably handle. More than that, the wine is sweet. Not sweet as in ripe, or even sweet as in loaded with vanilla from new oak, but sweet as in having some residual sugar. I don't know for a fact that there is indeed residual sugar, but that's what it tastes like. The effect isn't altogether unpleasant, but it does make the wine an awkward match for some of the foods that I normally enjoy with zinfandel.

Catching Up: The Golden Failure

A few days back, Charles Kuffner noted that, just two years after its introduction to great fanfare, the Sacagawea "golden dollar" coin is a failure. While the Mint will continues to produce the coin for collectors, current stocks are so large that the Sacagawea dollar is not currently being produced for circulation.

Much of the blame for the Sacagawea dollar's failure is placed on Americans' preference for the greenback; even before the new coin's introduction, some were predicting that it was doomed to fail as long as the dollar bill continued to circulate. No doubt there's something to that. Given that public resistance was anticipated, however, I think that some design failures have contributed to the coin's lack of acceptance.

The American public, despite its notorious resistance to change in its money, has embraced the Mint's 50 state quarter program. So change is possible. But Americans do have firm ideas of what money looks like, and the dollar coin fails to meet those expectations on two levels.

First, the depiction of Sacagawea is awful. Among the three design finalists for the coin's obverse was a classic profile, a design that would have been at home with the rest of American coinage. Instead, the Mint selected a depiction of Sacagawea looking over her shoulder, her face in three-quarters view. The selected design, in other words, was unusual to begin with. To make matters worse, the simplification necessary to make the design suitable for mass production made Sacagawea look like a cartoon figure. The resulting coin looks more like a Disney token than US currency.

Second, the artistic problem was compounded by a metallurgic problem. The dollar coin's golden color is quite striking when the coin is new, but it tarnishes quickly and easily, and in its tarnished form the coin looks, well, cheap. Although the dollar is now worth about what a quarter was worth in 1973, Americans still like to think of the dollar as a significant amount, and the Sacagawea dollar doesn't look like it's worth much.

It may well be that the American public will not accept a dollar coin as long as the dollar bill continues to circulate. But, like the Susan B. Anthony dollar (which looked too much like a quarter), the new dollar coin fails on so many levels that it doesn't adequately test the proposition. The Mint blew it, plain and simple.