Begging The Question

Thursday, May 24, 2007

I hope they find room for this in the immigration bill!
A few weeks ago, I saw via Reason's David Weigel that Canadian MP Mike Lake was trying to get Bigfoot protected under Canada's Species at Risk Act. As it turned out, Lake was merely presenting to the House of Commons a petition signed by some of his constituents, and doesn't actually believe in the mythical Sasquatch. Nevertheless, he ends up embarrassed for trying to do some constituent service for some Bigfoot, uh, "enthusiasts."

Anyway, I hope Ted Stevens and Don Young don't get wind of this, because who knows was pork barrel projects they'd dream up. A billion-dollar Bigfoot Museum in Cicely, perhaps. Or maybe they'll just try to convince people that Bigfoot is hiding underground, and we need to drill all that oil out of the way so we can look for him.

In any event, I expect that some day, either in Canada or the States, we'll end up with Bigfoot on the endangered list, watched over by PETA, and starring in an Al Gore movie. Don't believe me? Look into the future and see for yourself! (Also available in ¡Spanish!)

Tuesday, May 22, 2007

Supreme Court Thoughts
1. I think Monday's opinion in Bell Atlantic Corp. v. Twombly may have been the first antitrust/telecom case I've ever read all the way through. That's because it's less about the nuts and bolts of those issues, and more about the pleading standards under the Federal Rules of Civil Procedure. The quick-and-dirty summary is that the Court required the plaintiff to plead that a specific illegal agreement existed, which could be seen as something more than the traditional "notice pleading" rule sufficient to beat a 12(b)(6) motion. Baseball Crank here says it's a very significant case, while guest-blogger Einer Elhauge at Volokh here disagrees.

I'm leaning towards Elhauge's position. It will all depend on how eager lower courts are to use Twombly, of course. But they have a lot more precedents they're familiar with that are a lot more plaintiff-friendly. But I'm sure defendants are eager to cite Twombly and will push it as far as it can go. And if they don't win on the motion to dismiss, I'm sure they'll rely on last month's Scott v. Harris for some defendant-friendly summary judgment language. Time will tell, but I think it would take a few more (and more clear) statements from the Supreme Court for a stricter pleading standard to filter down.

2. Prof. Orin Kerr has a long post here at the Conspiracy about Monday's decision in Los Angeles County v. Rettele. The basics: County Mounties (Aside: Did anyone catch that movie reference?) did not violate the Fourth Amendment rights of a couple it rousted from bed, naked, even though they were white and the search warrant clearly said the suspects were black. (See Prof. Kerr's post for more detail.) It's interesting on the Fourth Amendment issue, but long-time readers won't be surprised to know I was even more intrigued by the newest qualified immunity tea leaves it offered. I wrote about qualified immunity most recently here, and there are links in that post to some older posts I've written about the doctrine.

Monday, in Rettele, the Court majority didn't get into QI because it found no Fourth Amendment violation. But Justice Stevens's concurrence (joined by Justice Ginsburg) advocated abandoning the current QI two-step in cases where the second prong (whether the alleged violation was clearly established) is easier to decide. As I noted in the linked post, Justice Breyer discussed the same idea in his Scott v. Harris concurrence.

I've said before, and won't rehash here, that I think this is a bad idea. It looks like they might not yet be able to get a majority for it. The "Bong Hits 4 Jesus" case, Morse v. Frederick, might be the one that does it. So, all in all, still status quo. But I've been tracking the issue this term, so I thought I'd mention it.

3. Finally for now, a lot of people have linked to Tom Goldtsein's thoughtful analysis about the impact of the 2008 election on the Supreme Court. Prof. Kerr suggests it might not be so dramatic, but I think I have to agree with Prof. Dan Solove at the Co-Op that confirmation politics have changed enough that Goldstein's scenario is the more likely one.

Goldstein's thesis, though, depends on the notion that Justice Souter would be likely to retire very soon after a hypothetical Democratic president took office in 2009. Goldstein makes a plausible case, and I'm sure his sources are better than mine (especially since I don't have any). But part of me wonders if Souter wouldn't still consider himself enough of a Republican to want to retire under a Republican president. (The same may also be true of Justice Stevens, of course, but I'm more doubtful.) Souter and Stevens may feel that they're still the same good old-fashioned Republicans they were when nominated, even if the national GOP has moved away from them. But I don't know if they'll think it's moved enough to want a Democratic president to nominate their successors.

I'm reminded of Justice White, who disagreed with the liberals on the Court a lot (he dissented in Miranda and Roe and Texas v. Johnson, for example), but still considered himself a Democrat and resigned when President Clinton was in office. I don't know if Justice Souter will behave that way (and I'm pretty sure Justice Stevens won't), but it's worth thinking about. Of course, if Justice Souter really is eager to retire to his farm in New Hampshire, and really wants to resign while the GOP has the White House, he might just leave after this term. Given the current realities of the confirmation game, that might be the best way to ensure (a) that a Republican president gets to nominate his replacement, and (b) the nominee is, as these folks would say, "another Souter." Just a thought.

Enchantment Under the Sea for Thee, But Not for Me
I'm pretty sure this PostSecret postcard isn't about me. But it could be. So I'm sorry.

Sunday, May 20, 2007

First impressions are just a PR spin away
Milbarge asked me to write down some initial thoughts of the 2008 Republican candidates. My response was basically that as much as I love politics, I've been trying not to pay too much attention because I don't want to get burned out on it before the main event rolls around. He thought that was even better, as we could revisit this post as the election gets closer, and see how my impressions have changed. So here goes.

Impressions, 19 months from election:

Rudy Giuliani
I have problems with Rudy. I think he's a smart guy, and I don't doubt his ability to get things done, but there's something about him I don't like. Maybe as the election gets closer and I start watching more coverage, I'll be able to figure out what it is. Policy wise, I have one huge problem with Giuliani, and that is his pro gun control attitude. In an election where Republicans were assured of Congressional control, this wouldn't be a deal breaker. But when there is every reason to believe that Democrats will retain their majority, a gun control president is something I can't endorse. I never thought of myself as someone who had a litmus test issue, but apparently I do.

Would I want to have a beer with him?

Mitt Romney
A bit too pretty. The Mormon thing doesn't bother me terribly. I'm not a fan of the religion in general, but he doesn't strike me as the kind of guy that would let it affect his policy. Don't know tons about the guy otherwise. Seems like he's got Clinton-like charisma, and if he doesn't get the nomination this time around, I don't think we've heard the last of him.

Would I want to have a beer with him?
Sure, but might cancel if something better came up.

John McCain
I have a world of respect for McCain, and I would have no problem at all with him as president. I know a lot of conservatives lament his maverick-ness, but a lot of that is politics (in the bad sense of the word). Not a fan of the campaign finance reform he worked on, but I think despite the crappiness of the bill, his intentions were good.

Would I want to have a beer with him?
Hell yes, and it would be an honor.

Sam Brownback
Don't know a thing about this guy.

Mike Huckabee
See Brownback, Sam.

Tommy Thompson
Name reminds me of Jimmy James from NewsRadio. "The man so nice they named him twice." Don't know a thing about him as a politician.

Jim Gilmore

Tom Tancredo
I know the name, but I don't know why. Vaguely recollect that he's the big immigration guy.

Duncan Hunter
See Gilmore, Jim.

Ron Paul
Is he related to that guy that makes the guitars?

Fred Thompson*
I've read a few of his articles, and the man just exudes presence and common sense. The exact combination I want in the leader of the free world. My favorite comment about Thompson, from someone that knows him, was that he doesn't act. In the movies/shows he's been in, he's just playing himself. Doesn't hurt that he's playing a president in his latest role. Not to mention it's about damn time the country had a bald president again. It's been too long.

Would I want to have a beer with him?
Yes. (With luck I could get him drunk and have him tell stories about working with Angie Harmon.)

Newt Gingrich*
Incredibly smart, undoubtedly the most innovative thinker out of all the candidates, regardless of party. Also completely unelectable. Way too much history and too many skeletons, which is a shame. He's a lot like Hillary in that he has great name recognition, the only problem being most of it's negative. I actually think he might be more effective back in Congress than in the White House.

Would I want to have a beer with him?
Absolutely. I think a bar conversation with Newt would teach me more than a year of college poli-sci classes.

If all of these guys were in the field, right now my vote goes to Fred.

* = Not yet declared.

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