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Over at The Right Coast, Mike Rappaport endorses the Lindgren/Calabresi proposal for eighteen year judicial term limits, which Ethan and I have already addressed. Rappaport offers a benefit I didn’t address:

“[Term limits] would promote a more regular appointment process, in which each President can has some influence on the Court.”

I didn’t realize that the “Metamucil Principle” was a goal of ours: Let All Presidents Appoint Justices Regularly and Equally.

Even before Supreme Court justices lasted for decades on end, there was no regularity or equality in appointments. Had Madison and the Framing Crew wanted to provide for quotas, they surely could have. But they chose not to, apparently under the theory that Justices should be more removed from the political process, rather than an “explicit spoil” of presidential elections, as Ward Farnsworth has said.

Farnsworth took on the “regularity” argument directly in an excellent debate he had with Norman Ornstein over at the Legal Affairs Debate Club. Read the debate in its entirety, but here’s a quick link to Farnsworth’s “regularity” point. The Framers were right. (Does that make Rappaport a member of The Left Coast? Or does it just make him wrong? Just asking.)

Posted by Administrators on April 10, 2005 at 02:19 PM

Comments

You’re right. If people want regularity they can just add more bran to their diet.

Surely the problem is that the appointments process is too political. If anything, this proposal makes it worse. Presidents will feel entitled to an ideological appointment because it is ‘their turn’. If you’re going to go in this direction, why not go all the way and have the justices elected directly by the people?

Posted by: Nigel Kearney | Apr 10, 2005 4:44:26 PM

Not long ago, Alan Wolfe published a book celebrating American values entitled, One Nation, After All. Colbert King, who is reason enough to buy the WaPo, shows the limits of Wolfe’s optimism here, relying especially on the the ADL’s recent survey of antisemitism in America.

Somewhat heartening is that overall antisemitism appears to be declining in the US, but the numbers of African-Americans and Hispanics who harbor antisemitic beliefs is strikingly high. And while antisemitic beliefs may be declining in the aggregate, the number of antisemitic incidents in the US was the highest in nine years. Not good for the Jews. Not reason for panic, but not reason for complacency either.

Posted by Administrators on April 10, 2005 at 10:48 AM

Comments

BB, as it turns out the release issued by the ADL confirms your intuition: namely, that antisemitism is more prevalent among lower-income strata.

Posted by: Dan | Apr 11, 2005 7:40:20 AM

An anecdote: sitting one rainy morning in a Starbucks in New Haven–a Starbucks of all places!–I heard two men next to me having a conversation about The Jews. I overheard several remarks, such as “Washington and Lincoln warned us about those people,” (they did?) “they control the media,” etc. One of these men was clearly a homeless man who had come into Starbucks to find some shelter from the rain, and the other was, from what I could tell, a construction worker on a break. Now my question is, does this anecdote fit anybody’s intuition (it fits mine) that anti-Semitism becomes increasingly common the further you go down the socio-economic totem pole?

Posted by: BB | Apr 11, 2005 12:16:53 AM

The ADL isn’t all bad, of course. At least it had the courage to speak out against the gay-bashing Abrahamic leaders, united in prejudice in the Holy Land, fearful that it was becoming a Homo Land.

http://www.adl.org/media_watch/newspapers/20050402-NYTimes.htm

Posted by: Ethan Leib | Apr 10, 2005 1:32:49 PM

Here’s what the article said:

“It is deeply troubling to learn from the ADL poll that nearly 35 million American adults — roughly 14 percent of the population — hold “unquestionably anti-Semitic” views. Moreover, those anti-Semitic propensities have gone down only slightly since the last national survey in 2002, when the level was 17 percent. Consider what the survey found: 33 percent of Americans believe Jews are more loyal to Israel than to the United States; 32 percent believe Jews always like to be at the head of things; and 30 percent believe that Jews were responsible for the death of Christ. Perceptions about “Jewish power” also have traction: 19 percent of adult Americans believe that Jews have too much power in the business world. Among Americans holding the most anti-Semitic propensities, the view that Jews have too much power in the United States is up to 70 percent.”

Hardly good news. But hardly very clear about what counts as “unquestionably anti-Semitic” views. That many Jews are more loyal to Israel than the US? That Jews were responsible for the death of Christ? At least the latter is uncontroversial.

Don’t get me wrong: there is a lot of antisemitism, prejudice, and ignorance in this country. But the ADL is really not the best institution to be trusting to devise surveys and to draw conclusions from them.

Posted by: Ethan Leib | Apr 10, 2005 1:28:30 PM

	DC Benefit for DARFUR
	The Front Page 1333 New Hampshire Avenue NW,Washington,DC
	Sunday, April 10, 4:00pm to 8:00pm

Darfur (pronounced “Dar-four”) is a region in western Sudan made up of Arab and African people. The Arab dominated Sudanese government is “hiring” Arab militiamen known as Janjaweed to initiate an ethnic cleansing—the widespread killing of three African tribes (Fur, Massaliet, and Zaghawa). Approximately 100,000 Africans have been killed and 1.2 million have been displaced after the Janjaweed burned the African villages and raped the women (200,000 Africans migrated to Chad where they risk their lives just to get water from the river). These refugee camps lack sufficient medical aid, food, and clean water. The World Health Organization estimates that 10,000 people are dying in Darfur each month. This easily qualifies at genocide under Article 2 in the 1948 Convention and the participatory governments are required to take action, but truthfully, the efforts have been pathetic. We have a responsibility to help the victims of Darfur and every bit counts. On Sunday, April 10th please join us at The Front Page from 4pm-8pm for a benefit fundraiser (1333 New Hampshire Avenue NW—across the street from the Dupont Circle metro). Anyone making a donation will receive the following discounts from the venue as well as chances to win raffle prizes (including an unlimited month-long pass to Bikram Yoga Dupont): · ½ price appetizers · $2.75 rail liquors · $2.75 Bud, Bud Light, Miller Lite, and Front Page Ale drafts · $2.75 house wines 100% of our proceeds will be donated to help the situation in Darfur–most likely to the Save Darfur Coalition (1000 Connecticut Avenue NW, Suite 802, Washington D.C. 20036). Checks can be made payable to: CFNCR/Save Darfur Fund and mailed to the above address or contact us for alternative arrangements. If you have any questions, would like to contribute, or help organize, please contact Steven Krieger at: stevenakrieger at yahoo.com. You are more than welcome to circulate this invitation to anyone and everyone—and please, please, please do. The more the merrier.

Posted by Administrators on April 10, 2005 at 10:40 AM

Jenny 8. Lee is rightly famous for her name, and in DC and among young Harvard alumni for her consummate social hosting, networking, and her funny articles in the NYT. But the social ethnography she self-consciously performs in today’s story, which details the do’s and don’ts of “man dates” (two straight guys hanging out with each other over dinner or in some other non-sportswatching venue), is too much. For the straight busy guy who’s insulted by the stereotype that we’re all just sports-watching lugnuts, the article’s caricature seems a distortion rather than a reflection of social reality. But maybe I’m just extra sensitive because, after a long social hiatus, I have four “man dates” scheduled for this week with other prawf friends. And of course, I live in Dupont Circle, where the prospect of two men eating dinner together doesn’t raise an eyebrow.

Posted by Administrators on April 10, 2005 at 09:36 AM

Comments

Interesting and funny article, but she could’ve saved a lot of time and ink if she’d said more succinctly, “A lot of guys are still homophobic and dumb.”

Posted by: Scott Moss | Apr 12, 2005 12:02:26 PM

Am I that out of touch that I’ve never heard of her and her bizarre name?

Posted by: Paul Gowder | Apr 11, 2005 11:14:47 AM

Lately, I’ve been asked a lot about why blog and why read them. Not much point in reinventing the wheel. Over at TVC, Eugene Volokh posts a short collection of thoughts on why people blog and why people read them. Over at SLP, Doug B. also links to a bad article about an interesting subject: the origins of the Becker-Posner Blog.

Posted by Administrators on April 9, 2005 at 10:11 PM

Thousands of visitors!! Come, hang around, drink scotch and bubble tea with us.

A few personal reactions. First, comments have been much better than I expected: none of the crap, or little of it at least, that I had been warned about. So I’m glad I was proved wrong. There’s some concern that we might end up with spam in the comments; I understand that’s happened to my man Kaimi at www.tutissima.com, which is why they closed comments down. It appears that K, N and Chad took a break but they’re back now. Perhaps they’ll end up throwing some bones in this blog too, if our imperial ambitious are eventually realized. They would provide some more balance to the center-left mush Leib and I sometimes push.

Second, blogging is incredibly rewarding, but we have to pace ourselves for the long haul. I think it gets faster as we get better. There seems to be a risk of blogger burnout to consider.

Third, it’s clear that on the tech side, we’re screwing all sorts of things up so far, or at least not optimizing our form and format, but I’m optimistic that we’ll address some of the issues soon.

Fourth, blawging about things that students care about (grades, jobs, admissions, hiring) is popular because students are surfing the web in their classes too much!

What am I missing?? Reactions generally?

Please note blogging may be slow to non-existent over the weekends. Or more thoughtful! But no promises.

Bon weekend.

DM

Posted by Administrators on April 8, 2005 at 05:09 PM

Comments

more site related stuff, really – perhaps allowing HTML in comments so readers can leave links and use italics and underline and bold and the stuff – otherwise, good read for a new blog!

Posted by: Gideon | Apr 8, 2005 6:45:13 PM

I’m not convinced we’re center-left, Dan. You are more center than left. And with me impugning a woman’s right to choose, I’ve infuriated and alienated lefties–never mind that I’m more pro-abortion than I am pro-choice.

So we’ve got work to do.

Posted by: Ethan Leib | Apr 8, 2005 6:03:06 PM

AmosAnon1 on Lifetime Tenure for Judges

People such as TVC’s Lindgren, et al., tout the basic idea of eighteen year judicial term limits for four basic reasons. Supposedly, it would:

(1) stop judges from retiring based upon political considerations;

(2) open nominations to distinguished older lawyers and judges, who are now shut out as a result of every president’s interest in shaping the Court for decades;

(3) ensure that bad justices can’t haunt us for more than eighteen years;

(4) limit the partisan rancor that currently pervades the nomination process by reducing the stakes of a nomination.

As Ethan says below, the first benefit is undeniable.

But …

couldn’t it just as easily be accomplished by a mandatory retirement age of, say, 70? 65?

As for the second supposed benefit, I wasn’t aware that underqualified young people were getting Supreme Court jobs because older, better qualified people couldn’t be considered. This must be the only field in which a 45 or 50 year old is considered “untested” and “young.” If you are high profile enough to be in line for a nomination at age 45, then you are a star. Maybe you went to a top law school, maybe you clerked or published. In other words, you are qualified; and if you aren’t qualified, it isn’t because only the old people were qualified.

With respect to the prospect of “bad judges” haunting us for 20+ years, just flip it on its head: implementing 18 year term limits would deprive us of the best judges after 18 years of service.

The fourth supposed benefit is really what mystifies me. First, I don’t see Ted Kennedy standing up and saying, “Well, since it is only for eighteen years, we should confirm Mr. Bork.” But let’s assume that Ted would. The result would be more ideologues—from the right and the left—sitting on the Court. And it would make every presidential election revolve around the Court to an even greater degree than it already does. I don’t view these as positive effects.

Put differently, how does increasing the number of times politicians get to debate judicial nominations depoliticize of the process? That’s just crazy talk.

Finally, this would destabilize the Court. Every issue would be up for reconsideration every few years. Whatever you think about the Court’s stances on abortion, affirmative action, enemy combatants, sentencing guidelines, and whatever else, do you really want the Supreme Court re-debating it every four years? Bad decisions should be overturned, of course, but we’d end up with a situation in which Congress, agencies, businesses, and individuals couldn’t act, because the law would be in a constant state of flux.

One of the only things the Court has going for it is its stability and mystique. The moment it becomes just another political branch, reconsidering every foundational position every few years, is the moment the people will rebel against it.

So mandatory retirement age? Sure. Term limits? No way. —

Posted by Administrators on April 8, 2005 at 02:56 PM

Comments

People also seem to have forgotten that we are living in an anomolous age. This is, I believe, the longest stretch of time the US has ever gone without a USSC opening. For some reason, the entire political climate seems to be approaching individual situations as representative of endemic problems. The problem with the judiciary isn’t that we have an aging set of judges, but it is that we are not retaining some of the best and the brightest of them through to retirement. The Chief Justice and Stephens (I think) made a report a few years back requesting an increase in the pay scale for Federal judges because too many Judges were using the judiciary as a stepping stone in tehir careers instead of as a capstone. Lets focus on retaining the good people before we arbitrarily decide we don’t like jurists over a certain age.

Posted by: Joel | Apr 8, 2005 4:03:27 PM

Duty to Retreat: A Problem for Conservatives?

Brooks Holland, currently a NYC Public Defender, and about to be a CrimPrawf at Gonzaga Law, writes to us about this interesting criminal law development in Florida about duties to retreat.

Gov. Jeb Bush appears ready to sign a bill that would eliminate any duty to retreat before one may use deadly force in self defense. The NRA apparently pushed for the bill. According to CNN “[t]he bill says a person has ‘the right to stand his or her ground and meet force with force.’” So, self defense in Florida no longer will focus on the necessity of taking one life to protect another in light of the defendant’s inability to retreat safely from deadly force, but instead on the victim’s forfeiture of his right to life due to his own violent misconduct? Perhaps sort of like the old Texas cliché, “He needed a killin’.”

Does this change transform self defense from a justification defense into an excuse defense? Contrast the more traditional approach illustrated in the NY Court of Appeals’ recent decision in People v. Aiken, 2005 NY Slip Op 02562 (Mar. 31, 2005). Interestingly, while this Florida bill would appear to reflect a “conservative” political view toward criminal justice, the Court of Appeals’ decision in Aiken imposing a pretty strict duty to retreat is rooted in the “protection of life.”

DM: I haven’t given tons of thought to the duty to retreat rule, but I know Dan Kahan (Yale Prawf) has written about this in various articles. It seems this is another example of the challenges of expressive politics: how law both constitutes and reflects our competing values and senses of social responsibility. I’d be interested if people had more thoughts on this, especially with empirical evidence, in the comments. Should I be learning target shooting in T-town? Or practicing my sprints?

Posted by Administrators on April 8, 2005 at 01:25 PM

Comments

For heaven’s sake, guys, this is the rule already in the majority of states and has been since the early 1800s. Florida is just joining the other states. The sky is not falling. This is just one aspect of the common law that American frontier judges never liked or adopted (with the exception of the minority states).

Posted by: ED | Apr 26, 2005 11:02:11 AM

By the way, Dan, I haven’t read it since law school, but as I recall George Fletcher’s _A Crime of Self Defense_ (dealing with Goetz) gives some interesting discussion of duty to retreat.

(That may have just been the class, though, and not the book — I had crim law with Fletcher, and he discussed the concept quite a bit).

Posted by: Kaimi | Apr 8, 2005 4:32:55 PM

I’m very interested in this issue, since next fall I’ll be opening a Philosophy of Law class for undergraduates with a discussion of the duty to retreat in self-defense cases. There is something to the notion that machismo is at stake: the no-duty-to-retreat rule in Beard v. United States, 158 U.S. 550 (1895), is called the “true man” rule–i.e., a true man would not retreat. “[A] true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise maliciously seeks to take his life, or to do him enormous bodily harm.” 158 U.S. at 561 (quoting an Ohio case). I’d appreciate any advice from anyone who has experience teaching self-defense doctrine to undergrads, though there may not be a lot of you, I understand.

Here’s the Findlaw address for Beard, though I can’t seem to put in into a link:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=158&page=550

Posted by: Chris Green | Apr 8, 2005 2:23:27 PM

Goetz is the most apt analogy for the situation. The jurisprudential question of whether this changes self-defense into an excuse based defense is interesting. Justification based defenses can be affirmatively proven by facts surrounding the event. In the case of self-defense, was there a threat? Could I reasonably retreat? Was the level of force I used commensurate with the danger involved? Changing this to an excuse paradigm runs into the question only of whether there was a threat? From what I have seen of this Bill trying to be an Act, the level of force with which a victim may meet force is not very clear. Hopefully the proportionality test is incorporated here …

Posted by: Joel | Apr 8, 2005 2:21:43 PM

What it seems to me as doing is creating a bar to prosecution as opposed to the traditional affirmative defense to prosecution. That is rather problematic. One can envision a scenario where self-defense is claimed in an otherwise outright “criminal” act.

Doing away with the duty to retreat seems rather foolhardy as well. While it almost never serves any purpose – scenarios are hardly ever conducive to “retreat” – the duty does encode common sense. Avoid the situation if possible, only then resort to violence.

(I posted on this a few days ago: http://publicdefender.typepad.com/public_defender_blog/2005/04/meet_force_with.html)

Posted by: Gideon | Apr 8, 2005 1:53:34 PM

There’s an obvious analogy to the Bernard Goetz case. One of the key issues there was, did he have a duty to retreat — to wait until he was actually cornered — before using force?

Posted by: Kaimi | Apr 8, 2005 1:31:49 PM

Over at the Volokh Conspiracy, Jim Lindgren is further pitching his new idea (with Steven Calabresi) to limit Supreme Court Justice terms to 18 years. Given that the average stay on the Court is now 25.6 years, will 18 years really solve the problem of “mental or physical decrepitude”? Stevens remains sharp as whip as far as I can tell; and O’Connor surely remains perfectly competent. Rehnquist is ailing, no doubt, but he was perfectly fine until this term — everyone expects his resignation in June (for real this time!).

I suppose the idea has one thing to recommend it: Justices would stop being able to choose to step down during a Presidency with which they are in political sympathy. That would surely be good so Justices’ political leanings can be further swept under the rug. But I’m not really sure I’m eager to see more fights over filling judicial vacancies…

Posted by Ethan Leib on April 8, 2005 at 11:08 AM

Comments

Like many other issues, the discussion requires identifying the real problem. Nominations to the court now come from a small group of essentially judicial elites instead of the previous wide group of members of the legal profession. The only people selected are sitting federal judges who have previously gone through the confirmation process and therefroe are free from private controversy. We no longer get people like Hugo Black, Bill Douglas or Earl Warren. Justice O’Connor was the last non-judicial candidate and she had the fact that she was the first woman going for her. The nominees tend to be people in their 50’s and thus they end up serving longer. We don’t select someone like Justice Powell who had a long and distinguished legal career before his nomination. But even he ended up serving a long time. Until the entire process is substantially changed we will get sitting federal judges in their late 40’s or early 50’s who will serve until their 70’s.

Posted by: Stuart Shiffman | Apr 8, 2005 12:15:59 PM

So Senator Cornyn has been asking us to consider whether there may be some “cause-and-effect” relationship between “judicial activism”– judges making “political” decisions — and violence against judges. Here’s one recent story. And some commentary.

Here’s another cause-and-effect to consider: Conservative activist judges struck down an act of Congress called the Violence Against Women Act in 2000 (See U.S. v. Morrison). Do you think women, frustrated by their inability to sue men civilly for their abuse, now fight back with violence?

A similar conversation is going on at Dissemination.

Posted by Ethan Leib on April 8, 2005 at 09:34 AM

Comments

Fair enough. But I think you get the point. And I suppose we’d need empirical evidence to answer the question about whether having additional fora to pursue a claim makes it more likely that an aggrieved party would pursue redress rather than resort to self help.

Posted by: Ethan Leib | Apr 8, 2005 12:08:55 PM

Women can “sue men civilly for their abuse” – they just have to do it in state court. Is there an issue with state courthouse doors being locked shut for women personal injury victims that I am unaware of?

I can’t sue my neighbor in federal court (absent some law school hypothetical of diversity)if he comes over and punches me in the mouth. Does that mean I therefore have no legal recourse against him?

Not every issue is a federal issue.

Posted by: MJ | Apr 8, 2005 12:01:19 PM

So it seems from the emails we’ve been getting that there’s quite a demand for discussion about law school hiring. Where’s the demand for discussion about how best to end the Darfur genocide? Fine. We plan on blogging about all those in the near future.

In the interim, we invite those who actually went on the market this past year or the last two years to share some of the funniest and/or frustrating experiences you had. Feel free to email us in confidence if you don’t want us to share particulars about names or places. Just let us know how to treat it. Comments are also open.

Posted by Administrators on April 8, 2005 at 09:24 AM

Comments

The calls may be related to perceptions of expertise. You have managed to get a job teaching law school, but you have not been nearly as successful at ending genocide.

Posted by: Nate Oman | Apr 8, 2005 10:10:30 AM

I think the only thing that can fairly be said about this story: Yikes.

Posted by Administrators on April 8, 2005 at 08:31 AM