Not A Good Theory of Judging

--Sebastian

I'm not going to try to do an independent analysis of the recent NSA ruling when it has been done so well elsewhere  (see especially Volokh and Althouse).  In the fray, I noticed a post by a prominent legal scholar (and blogger) Jack Balkin which exhibits many of the characteristic attitudes toward the judiciary which I find troubling. 

The secret advantages of Judge Taylor's opinion in ACLU v. NSA

Marty and I have noted the problems with Judge Taylor's opinion, even though we both agree that it reaches the right result. Why did Judge Taylor rush out such a sloppy opinion in the way she did? Some people have speculated that it was to hog all the glory for herself. But that's not the only possible reason. Judge Taylor has been on the bench for many years, and, presumably, she knows how the appellate process works. In this post, I try to show that strategically, at least, Judge Taylor's opinion has significant advantages even if most of the legal reasoning in it probably won't stand up on appeal.

Judge Taylor knew that most of other lawsuits challenging the NSA program were being consolidated in California, and hers might be as well. She might have wanted to ensure that the 6th Circuit got to pass on the NSA case in addition to the 9th Circuit. The more circuit courts that passed on the case, the greater the chance that one of them would hold the way she thought the case should come out, and present a favorable record on appeal to the Supreme Court. But more important, she might have noted that the Supreme Court regularly reverses the 9th Circuit, and that the judges on the 6th Circuit might do a better job with the case, or, at the very least, their work would be viewed with less skepticism by the Justices.

Lower courts can do two things to insulate their judgments from being overturned on appeal. The first is to address the legal issues in ways that make it very difficult for the side that lost on appeal. The second is to make findings of fact that limit what appellate courts (and the losing side) can do on appeal.

Judge Taylor's opinion did both of these things in her opinion. First, she raised as many claims on the merits as she could think of, even if her analysis skated over the surface and didn't provide the best arguments for both sides. This puts the Justice Department in an interesting position. The DOJ takes the view that courts can't possibly resolve the legal issues on the merits because state secrets are involved. But because of Judge Taylor's scattershot approach, it will have to make arguments on appeal showing why her arguments are wrong on each issue; that will undercut its claim that the legal issues can't be disposed of without revealing privileged information.

...

But here's where Judge Taylor's rather innovative First Amendment argument comes into play. To win on standing, plaintiffs need not win on the merits; they need only show that they raise colorable claims of rights violations that injure legally protected interests that courts can remedy. The first amendment argument-- that the secret program chills protected expression and association-- is not a very good argument in its current form, but it is a colorable argument. It will take some work to defeat it. And that fact helps secure the plaintiffs' standing. By making what is not a particularly good argument about the First Amendment, Judge Taylor enabled the 6th circuit to address what is really the best argument-- that the NSA program violates Congressional law, in particular FISA.

Judge Taylor's opinion isn't really very good as a discussion of the merits. But district court judges know that this isn't the only thing that matters....

This line of argument is very troubling.  I would be much happier to hear that Taylor's decision was the result of incompetence or some sort of righteous anger at the NSA program.  It certainly looks that way to me (Not because of the final conclusion which is fairly debatable, but because of the shoddy legal reasoning to get there). 

Ann Althouse exactly captured my thinking when she wrote:

I'm not talking about the normal way judges write result-oriented decisions, which is to layer in the scholarly and neutral-looking verbiage in the hope that most people will swallow it and the critics will seems like sore losers. This opinion -- beginning midway through the text -- does not even look like a rough draft. It seems as if the judge ran out of time and handed in something that was less than an outline. Much less.

That result-oriented decisions she describes are bad enough, what Balkin is suggesting is far worse than that. 

Appellate Courts aren't supposed to review a trial court's finding on purely factual issues.  Balkin is suggesting that Judge Taylor is attempting to use that to shape the appellate issues even though the legal reasoning is behind the decision is awful.  He is also suggesting that Judge Taylor made findings on more factual issues than she needed to for that same reason. 

He admits, on multiple posts, that the legal reasoning is poor, but thinks that Judge Taylor may have been attempting to secure the desired outcome by manipulating the record in other ways--and he seems to think this a good thing (the title of his post is "The secret advantages of Judge Taylor's opinion in ACLU vs. NSA").

That strategy (bad legal reasoning paired with nearly unreviewable manipulation of fact-finding to achieve a desired outcome) is exactly the opposite of how we should want judges to perform their duties.  We want neutral fact-finding and solidly logical reasoning.  Ironically, if Balkin is correct, Taylor is doing exactly what we fear the Administration is doing in the torture area--throwing up silly legal arguments and manipulating knowledge of unreviewable facts.

Balkin is an excellent analyst, but this time I hope my initial analysis of the opinion was more accurate than his. 

Comments

[CharleyCarp]

The comparison between a minority congressman and a soldier is completely offbase. The soldier has a choice, direct and personal: he may choose to follow the illegal order, and face criminal consequences, or he may choose not to, and face social consequences (at least, and possibly charges if he's wrong about the illegality of the order). A congressman isn't being given the choice whether or not to engage in illegal conduct. S/he's being given the choice to waste time on a useless, if not counterproductive, quest, or to use that time for some activity that might, at least indirectly, benefit the constuents.

[Slartibartfast]

A member of the minority not only could not get a majority, I doubt he/she could get hearings of any kind, much less a vote.

I guess discussion of the issue is right out, then? What do they call those...foregone conclusions? Me, I just imagine a minority party comprised of hilzoys could probably accomplish something. At least there'd be no shortage of discussion.

[Josh]

I'd say the decision of a federal court is pretty formal.

Jes, do you honestly expect anyone to buy this? Playing with words this way is something I'd expect from a teenager, not an adult.

[Slartibartfast]

While we're noting insanity, Gary Farber has gone right off the deep end.

J/K, Gary.

[cleek]

can I call Moe Lane insane now?

fine by me

[CharleyCarp]

If Hil was running in my district, I'd vote for her in a heartbeat. really I would. I'd then expect that once she got sworn in, she'd start working on health care, various social justice issues, maybe some iniatives I can't approve of in print [IYKWIM], etc. How much time would I want her to spend waste on trying to get Republican members to agree that criminals should be held accountable? None. I think it's totally hopeless. The good news is that she'd undoubtedly get some improvements in people's lives in so many other areas, that except for a huge chunk of the population who doesn't care at all about having a civilization -- so long as tribal loyalties are observed (I'm not including you Slart, but am looking over your shoulder at some other folks who seem to think waging a culture war is imperative), the world would be a better place.

[Slartibartfast]

And in the more-likely-actually-insane category, we have...well, read it and find out. No surprise, though.

CC: as I said, I'm aware of the political issues. I wouldn't be in the least bit surprised if the tactic was to wait, get the majority, then begin the media part of the campaign in December.

[Jesurgislac]

Josh: Jes, do you honestly expect anyone to buy this?

Josh, I started out presuming (as you'll see in Hilzoy's thread) that there would be no fallout at all for the Bush administration: they'd just ignore what the court said and continue regardless. After all, they've done it before.

But it appears that the Bush adminstration are not ignoring the court's ruling: they take being accused of committing multiple felonies seriously enough to appeal it.

So, how formal does the accusation have to be? A federal court judge has ruled that Bush, while in office, has committed multiple felonies. Bush doesn't dispute that he did what he's accused of: he just says it wasn't a felony when he did it, and intends to appeal against the ruling. Who knows: perhaps he'll win on appeal. If it gets up to the Supreme Court, he knows he has a majority there.

But until he does win, he does indeed stand accused of committing felonies.

Slarti; Just so you know what I'm talking about, here. Substantiate that statement, or retract, please.

You've accused me of lying, Slarti, and I invited you to prove that accusation or apologize. Since you have failed to link to any proof that I was lying, and failed to apologize, I take it this is just going to be one of those things where you made a wild accusation, can't back it up, and are now attacking me in lieu of an apology. Too bad.

[Larv]

Slarti,

I'm not going to presume to speak for Jes, but if she's misattributing positions to you which you don't actually hold, at least part of the reason is likely your famously indirect commenting style, which leaves most of us unsure just what point you are trying to make.

If it was essentially the same as Sebastian makes in his 12:17 (with admirable clarity, I might add), this seems excessively high-minded. In an ideal world, any congressperson who believed the president to have committed crimes while in office should advocate for impeachment, regardless of political affiliation. But this is not an ideal world, and as others have pointed out, this ignores the realities of the situation. In the actual world, we must take into account the recent history of Clinton's impeachment, the unusual degree of party discipline and deference to the President exhibited by Congressional Republicans, and the simple fact that a successful impeachment would not lead to any improvement in the situation. Cheney is unlikely to be more assiduous in guarding civil liberties than Bush. So why should anybody waste time and political capital in a futile quest for impeachment? Sniffing about how if they truly believed Bush had committed crimes they should darn well do something about it seems a bit naive. YMMV.

[kenB]

I wouldn't be in the least bit surprised if the tactic was to wait, get the majority, then begin the media part of the campaign in December.

I'd be rather surprised -- if they're keeping quiet because they think it's a political loser now, how much would that really change just by their being in the majority?

[Slartibartfast]

I'm not going to presume to speak for Jes, but if she's misattributing positions to you which you don't actually hold, at least part of the reason is likely your famously indirect commenting style, which leaves most of us unsure just what point you are trying to make

And, as I've said repeatedly, it does not follow that one can simply make up my point for me. Particularly when I've pointed out where making this point up is an utter fabrication.

You've accused me of lying, Slarti

Yes, I have, because you did. Nowhere in this thread have I said anything at all resembling what you said I did. It's a lie to say that I have. I don't know how I can be any more clear than this.

Since you have failed to link to any proof that I was lying

Sure I did. I pointed out to where you misrepresented what I said. If this all too complicated for you, that's not my problem. And I'm certainly not going to apologize for this error you insist on repeating.

[Slartibartfast]

If it helps, I said B, and Jesurgislac concluded that I said ~A.

[Ginger Yellow]

I dislike the precedent that would be created that impeaching the President is something regular enough to have been done to two straight Presidents

I dislike the precedent that would be created by ignoring the fact that the president has openly and unrepetentantly been committing multiple felonies.

[Josh]

But until he does win, he does indeed stand accused of committing felonies.

Usually, when people say "X stands accused of committing felonies", they mean "criminal charges are being brought against X for these felonies". That is not the case here; moreover, the idea that Bush has committed multiple felonies is merely an implication of the judge's ruling, not an affirmative statement in it. I understand that you'd like to represent implications as direct statements, but I suspect you know quite well that most people don't believe that. Like I said, it's the sort of thing I'd expect from a teenager, not an adult.

[Frank]

Im with Ginger here. Bush should be impeached, the fact that Republicans won't vote for conviction is evidence that there are no patriots in the Republican party anymore.

[radish]

Well obviously the Dems aren't making a fuss about impeachment because otherwise Slart -- who reads the news carefully every day -- would know all about it. Also Nixon couldn't possibly have won in a landslide -- I don't know anybody who voted for him! Hm. Sarcasm is perilous in situations like this, isn't it? Lemme put it to ya straight instead.

There's actually an enormous amount of standing-on-chairs and flapping-of-arms going on, by the standards of American political discourse. As much as there is on immigration issues, I would wager, and certainly a lot more than on entitlement reform.

There are several detailed and voluminous reports including one from an actual member of the House Judiciary Cmte; there are multiple tentative articles of impeachment, varying widely in quality and occasionally conflicting with each other, written by various think tanks and private parties; there are several state legislatures attempting to submit articles directly to the HJC in order to bypass Sensenbrenner's suppression (and no I don't use that word carelessly) of Conyers' multiple requests for hearings and investigations; there are umpty-and-some non-binding city and state initiatives, resolutions and ballot measures; there are at minimum hundreds of thousands of people signing petitions, writing LTEs, etc etc...

But no, if it's not headline news then the only explanation is that all those people (most but by no means all being Democrats) must be kicking back on the front porch with spiked lemonade instead of busting their asses doing something they consider necessary in order to protect and preserve the Constitution.

You can start here on the off chance that you have even the slightest interest in what people actually are doing about impeachment. It took me about thirty seconds to find that page and another couple of minutes to verify that it mentioned/linked to the examples I already knew about, plus a bunch more.

No need to thank me, just doing my duty as I see it...

[liberal japonicus]

As someone who has taken exception to jes' argumentation style, I do have to note that there is an element of tu quoque here, Slart. I'm a bit late in noting this, as we've already had the l-word brought out and displayed for all and sundry, but, unless there is some desire for the psychic cleasing effects of a parsing rant, it might be best if we just let this lie. Just a suggestion.

[Ugh]

I see LJ's 3:35 as a desparate call for an open thread.

[kenB]

if it's not headline news

If it's not headline news, that's probably because the Dem leadership isn't pushing it. If Pelosi & Reid were talking it up, I imagine it would be well-reported. I don't think the thesis was that no one at all was talking about it.

[Slartibartfast]

You can start here on the off chance that you have even the slightest interest in what people actually are doing about impeachment

Oh, Wikipedia is practically my first-stop shopping where it comes to finding out what's actually being done. As far as the Judiciary committee goes, though, it's not even a topic of discussion. And where's Howard Dean when you need him?

But who reads the news anymore, when there's Wikipedia?

[Slartibartfast]

I do have to note that there is an element of tu quoque here, Slart.

I have no idea what you're talking about, lj. I have noted in the past, though, that I'm particularly un-fond of folks simply making up positions for me and then pretending (insisting, even) that I took them. Should I simply let those slide by?

[LizardBreath]

Um, Slart? From the linked Wikipedia page:

On January 21, the Detroit Free Press reported in a story, "Call is Out to Impeach Bush," that the previous day, at an unofficial hearing of Democrats on the House Judiciary Committee called by Conyers, Scott and Van Hollen, Jerrold Nadler (D-NY), called for the committee to explore whether Bush should face impeachment for alleged high crimes and misdemeanors stemming from his decision to authorize domestic surveillance without court review. The proceedings had no legal authority, as committee chairman, Rep. James Sensenbrenner, (R-WI), rejected Democrats' requests for an inquiry. Nadler is a senior Democrat on the committee's panel on the Constitution.

That's the Judiciary committee, right?

[LizardBreath]

Here's the newspaper, rather than Wikipedia, source.

[spartikus]

I see LJ's 3:35 as a desparate call for an open thread.

In that spirit....

From the Dept. of "It's probably worse than it sounds....and it sounds really, really bad".

I would, however, like to seems divided into Democrats and Republicans. And Libertarians.

[spartikus]

like to seems

That would be "like to seem teams". Sorry, about that, a monkey attacked me through the open window while I was typing.

[spartikus]

"Like to see teams"

Damn monkeys. Scat!

[CharleyCarp]

My congressman is on that list, and so I stand corrected. Not disappointed.

Watergate got as far as it did because there were Republicans in office who put country before party.* Slart, what people are reacting to, imo, is your obvious avoidance of this difference between then and now, and reference at all to what the opposition is doing. It's a mote and beam problem. Aggravated by the famously indirect style.

* Imagine AG Gonzalez resigning in definace of a Bush order over a point of principle.

[Slartibartfast]

That's serious, LB? To me it looks more like a carnival sideshow.

[CharleyCarp]

Larv: as I said, I'm aware of the political issues ≠ naive.

[LizardBreath]

Slart, honey, what do you want from us? If we were serious we'd be talking about impeachment in the Judiciary Committee. Oh, but not like that, that's a silly way to do it. Of course it looks silly, the Republican chairman won't let them call real hearings or otherwise do it properly.

I can't figure out what you expect the Democrats on the Judiciary Committee to do. Are you just taunting us -- "Even when the silly Democrats do exactly what I want, they do it in the wrong words"?

[Dantheman]

Slarti,

Any hearing not in the committee room, where only 1 party attends, and where there is no subpoena power to get answers from witnesses will likely look like a circus. On the other hand, due to the rules in Congress, that is about the best the minority can do. Are you so uninformed about Congressional proceedings that this is a surprise to you?

[Slartibartfast]

Slart, what people are reacting to, imo, is your obvious avoidance of this difference between then and now

A little too much extrapolation going on, there. I'm not avoiding anything. Sure, I'm not acknowledging everything, either, but I rarely do. Not acknowledging is neither denial nor avoidance; it's simply not discussing it. I prefer to say just what I have to say. It doesn't mean anything at all about that which I haven't said. Disagree with what I've said, sure, but throwing rotten fruit at what I haven't made mention of at all just makes you look silly.

[radish]

If it's not headline news, that's probably because the Dem leadership isn't pushing it.

Slart was questioning the rationale for "not doing anything." I was trying to point out that most of the stuff that can be done without the cooperation of the HJC Chair is either being done, or has already been done, and in spades. Everything the congressional Dem caucus can do without either breaking the rules or suddenly becoming much better at PR has been done already. And failed. The remaining options require citizens to participate, elections to take place and so forth. Which they are, and they will, and which take time.

Slart's comment (and yours) imply that high-visibility Dems "talking it up" is what matters, and that if that's not happening then nothing is happening. That's just plain wrong. Right now, procedurally, the only thing that matters is Sensenbrenner's personal opinion. In order for something else to matter some state legislature either has to deliver articles for Tex to publicly ignore (which will make the issue newsworthy once again but probably have no other effect), or Dems have to take control of the House after November.

Meanwhile the sausage factory has to chug along as best it can. The only rationale required is the one for why, having shouted themselves hoarse to no avail, people like Conyers and Boxer are currently keeping their mouths mostly shut. I think that's a pretty easy one, but way off topic.

[Josh]

Not acknowledging is neither denial nor avoidance; it's simply not discussing it.

Do you find that this approach often works for you? It doesn't look like it from the outside; the dynamic in this thread looks all too familiar to me.

[Slartibartfast]

Slart's comment (and yours) imply that high-visibility Dems "talking it up" is what matters

No, I'm arguing that persuasion matters. I'm not saying that House Democrats ought to have Bush impeached by now, just that the level of quality of the public case-making isn't all that high. As recently as May of this year, we had Conyers backing off of impeachment.

Of course, there could be election-related reasons for doing so. And yes, I'm clear that all they can do is talk, but they're not going to persuade anyone by keeping silent, or by making their case loudly but badly.

[Slartibartfast]

Do you find that this approach often works for you?

Yes, in general. My friends and family don't in general invent entire chunks of argument and then insist that I made them. It's dishonest.

[kenB]

Slart's comment (and yours) imply that high-visibility Dems "talking it up" is what matters

Won't speak for Slart, but my assumption is that if the Dem leaders aren't talking about it, that means that the political will for it isn't there, and without the political will, all the other preparations won't matter at all. I'd tend to think that the most important preparation lies in convincing the public that impeachment is the right thing to do, and that task doesn't depend on being in the majority.

[kenB]

Oops, sorry.

[kenB]

And sorry not to have seen that Slart already made the same point.

[LizardBreath]

And yes, I'm clear that all they can do is talk, but they're not going to persuade anyone by keeping silent, or by making their case loudly but badly.

You're awfully circular here. The problem must be that Democrats aren't making their case: why aren't they saying more about this stuff? Oh, they are, well why isn't it the Judiciary Committee? Oh, it is, well why did they bring it up in such a half-assed way? Oh, because the Republican Chairman wouldn't allow them to have actual hearings, well why didn't they do it in a manner that I would find convincing?

There's no standard for what Democrats could do in this regard that would make you happy, other than make their case better, because you still aren't convinced and it must be their fault.

[Josh]

My friends and family don't in general invent entire chunks of argument and then insist that I made them.

You do realize, don't you, that the commenters here aren't your friends and family, and aren't interacting with you either face-to-face or by voice? And that the communication here is asynchronous? Using the same style of communication you use with your family is bound to lead to situations like this, and while some of what you're getting is out of bounds, some of it is perfectly understandable.

[Anderson]

I actually think Althouse and Kerr are more than bright enough to understand what is wrong with their analysis -- they are exercising the deceit of just choosing to ignore inconvenient facts that stand in the way of making their point.

I think that's unfair to Orin Kerr, whose posts I've followed for a while. He's a conservative, sure, but I've never seen anything to suggest dishonesty. Indeed, at the VC he's backed off some re: Diggs Taylor & Greenwald.

Even Greenwald credits Kerr with arguing in good faith and being candid about where he's ignorant.

[CharleyCarp]

Disagree with what I've said, sure, but throwing rotten fruit at what I haven't made mention of at all just makes you look silly.

Mote. Beam. It's about not acknowledging the big thing and whining about the little thing. You may not think this is a legitimate criticism, but it seems to me that the argument style that looks silly is the one where one pretends that one can put one's fingers in one's hears, sing 'la-la-la-la,' and say 'I can't hear you.'

I may be projecting.

[radish]

Of course, there could be election-related reasons for doing so.

Hmmm... [pulls at chin, scratches head, purses lips] Yes by golly, you may just be right about that!

And yes, I'm clear that all they can do is talk, but they're not going to persuade anyone by keeping silent, or by making their case loudly but badly.

I think what you mean is that they're not going to persuade you by keeping silent etc etc... Which is fine, because (and I say this with all due respect), changing your opinion isn't important. You (and others like you) aren't a high-value target. You do not offer a positive ROI. Your vote has a little bit of value, your money, a bit more, but you aren't active or influential. Does your own congresscritter care about your opinion regarding impeachment? Doubtful. Does Denny Hastert (or Nancy Pelosi) care? Puh-leeeez... So why should impeachment advocates care?

kenB: my assumption is that if the Dem leaders aren't talking about it, that means that the political will for it isn't there

Isn't where exactly? I might agree that a majority of Dem congresscritters and "leaders" (with a few notable exceptions) do not have the political will to pursue impeachment absent considerable pressure from their constituencies. That's a debatable question with lots of vague words that would require working definitions.

Dem voters, particularly activists, are a whole 'nother story. They are definitely on board with impeachment, and one way or another (i.e. regardless of who controls which chamber) impeachment efforts will be very much in the news by next spring if not sooner. Please feel free to consider that a firm prediction and to make fun of me later if it turns out to be mistaken...

[Jesurgislac]

Josh: Usually, when people say "X stands accused of committing felonies", they mean "criminal charges are being brought against X for these felonies".

Ah. Well, no, that's not what I meant. I meant, quite literally, that Bush stands accused of committing felonies: so he does. Had I meant that criminal charges were being brought against Bush for committing felonies, I would have said that (but then, I see considerable discussion between your comment quoted and this one about why that isn't happening). Possibly we're running into a British/US language difference here: or something.

[Andrew]

Was it George Bernard Shaw who said that Americans and Britons are two peoples separated by a common language?

[Jesurgislac]

Was it George Bernard Shaw who said that Americans and Britons are two peoples separated by a common language?

It appears to be one of those clever sayings which has therefore been attributed to Oscar Wilde and Winston Churchill, too.

It's perfectly true, though.

[Phil]

Oh, sure: it's all party politics. Slarti has long proved himself to be a loyal Republican.

Right. That's why he's mentioned repeatedly on here that he's no longer a registered Republican and is not comfortable with some of that party's direction. Not to mention the voting plans he's mentioned. This word, "loyal" . . . I do not think it means what you think it means.

But I'm quite prepared to argue Slarti on the case he's claiming he's trying to make: whose responsibility is it to act when the President of the United States stands accused of multiple felonies by a federal court?

Well, no, what Slarti is arguing is that the Democratic Party should probably think of saying something about it, because if the GOP and the DOJ aren't going to -- and they aren't -- then somebody has to. It was perfectly discernible from the actual words that he used, so why you chose to instead make something up is a mystery to me.

Nobody, by the way, "stands accused by a federal court" of anything right now. That isn't the way US courts and laws work, and it frankly isn't the way UK courts and laws work either, it's just amped-up hyperbole. That President Bush has probably committed and been party to multiple felonies is a logical inference based on this decision, and right now that's all it is.

[dmbeaster]

I think that's unfair to Orin Kerr, whose posts I've followed for a while. He's a conservative, sure, but I've never seen anything to suggest dishonesty. Indeed, at the VC he's backed off some re: Diggs Taylor & Greenwald.

Kerr seems OK, and I cannot comment on him generally, but he is clearly reasoning poorly on this subject. Even when its pointed out bluntly to him, he plays dodgeball. Greenwald demonstrated that his analysis was wrong because it ignored the procedural history of the case. Kerr's initial reponse was that Greenwald's correct argument was "bizarre." To his credit, he did later admit that Greenwald seemed right, but still ended his note with an unkind dig at Greenwald -- a rather bizarre way of acknowledging that he was wrong and Greenwald correct. He also does not seem to have re-examined his initial arguments even though now shown to be wrong.

I found his behavior intellectually dishonest, which was the point of my deceit remark. He does have interesting things to say about the issues generally, but erred badly in discussing the opinion because his analysis was devoid of any consideration of the case itself. It really was not fair to diss Judge Taylor without at least paying some attention to what she was asked to decide.

[Josh]

I meant, quite literally, that Bush stands accused of committing felonies: so he does.

I'm going to ask you the same question that I asked Slart: do you find that this tactic often works for you?

[LizardBreath]

I'm going to ask you the same question that I asked Slart: do you find that this tactic often works for you?

I'm not getting this. Are you saying that "stands accused" to mean "someone's accused you" rather than "you've been arrested" isn't conventional British English? Because I think you're mistaken about that. Or are you thinking that no one's accused Bush of felonies? Because all sorts of people have.

What's to object to about Jes's comment?

[Jesurgislac]

Josh, if I had known that Americans would think when I said "Bush stands accused" that I meant "criminal charges have been brought against Bush" then I wouldn't have used the phrase "stands accused" in a mostly-American forum. But I didn't know. Now I do, and I'll try to remember to avoid that phrase in future in order to avoid confusion.

[kenB]

Re the felony thing, a genuine question -- Although he authorized the surveillance, Bush himself hasn't been listening to overseas calls, so to what extent would he be personally chargeable under the FISA law?

[Josh]

What's to object to about Jes's comment?

This started because she made the argument that the opinion in ACLU v. NSA meant that Bush had been formally accused of committing multiple felonies. That's what I've been objecting to all along.

[kenB]

radish: Dem voters, particularly activists, are a whole 'nother story. They are definitely on board with impeachment

No argument there. I'm not surprised to see some Dems, especially those in safe districts, move on impeachment to the extent they're able. My point (and Slart's, I suppose) is that the idea that we can judge the Republicans for not starting impeachment proceedings while giving the Democrats as represented by the party leadership a pass for running away from the issue looks a tad biased (not saying that you did this, but that was the general tenor of some earlier comments). Everyone up there has an eye to the politics.

[LizardBreath]

Although he authorized the surveillance, Bush himself hasn't been listening to overseas calls, so to what extent would he be personally chargeable under the FISA law?

This is off the top of my head, but I'm pretty sure the answer is 'all the way'. The crime isn't hearing the calls oneself, it's causing them to be eavesdropped upon.

And Josh, I think you're being silly in not accepting Jes's explanation of her usage (which is, AFAIK, perfectly normal British English).

[Jesurgislac]

Josh: This started because she made the argument that the opinion in ACLU v. NSA meant that Bush had been formally accused of committing multiple felonies.

Except that I didn't make that argument: though I do understand (now) why you thought I was making that argument, and I have now added a new phrase to my set of phrases to avoid when writing so that both Brits and Americans will comprehend: "half-eight", "horses for courses", "using a rubber", "knocked up", and now "stands accused".

[kenB]

Thanks, LB. Assuming that that's accurate, does anyone know how many Repubs who voted yes on Clinton's impeachment are up for re-election this year? Because regardless of the overall politics of the NSA issue, it seems like a good tactic for the Dem candidate would be to ask something along the lines of "you voted for Clinton's impeachment for the stated reason that he broke the law, and simply breaking the law was enough to qualify as a 'High Crime and Misdemeanor'. If the FISA verdict is upheld on appeal, will you support a movement to impeach President Bush?"

[liberal japonicus]

I have now added a new phrase to my set of phrases to avoid when writing so that both Brits and Americans will comprehend

Now that is a worthy topic. I vote for 'shag', which, when I was a kid, meant to catch fly (base)balls. Then there was 'knacker', always used as a passive as in 'I was knackered' which a Brit used, saying 'Yesterday, I was knackered' and I thought it had some untoward sexual implication.

[Josh]

Except that I didn't make that argument

Then what exactly did you mean when you said "I'd say the decision of a federal court is pretty formal."?

[rilkefan]

"Then there was 'knacker', always used as a passive as in 'I was knackered' which a Brit used, saying 'Yesterday, I was knackered' and I thought it had some untoward sexual implication."

I wonder what you thought of the ending of Animal Farm:

"'Alfred Simmonds, Horse Slaughterer and Glue Boiler, Willingdon. Dealer
in Hides and Bone-Meal. Kennels Supplied.' Do you not understand what that
means? They are taking Boxer to the knacker's!"

. Amusingly, the quote could have been rotated around "Do you not..." for you...

[liberal japonicus]

Well, after I posted, I realized that 'I was shagged' also means to be so tired as to be 'dead tired', so it does have to do with death, but when I first heard it, I didn't make the connection.

[Joe]

I join with Glen Greewald in saying that the NYT should basically be ashamed of itself to have printed Prof. Althouse's editorial.

I find this amusing: "I dislike the precedent that would be created that impeaching the President is something regular enough to have been done to two straight Presidents."

Thus, abuse of the practice should allow the next person to get a free pass. Nifty for the second person!

[Anarch]

Thus, abuse of the practice should allow the next person to get a free pass. Nifty for the second person!

Well, you know how it is: don't do the crime if the guy before you hasn't done the time!

[Anarch]

And I'm probably too late to disentrench (if that's even a word) people from their positions, but...

Slarti: Convince me of what?

Convince you of the appropriateness of impeachment proceedings. More specifically, convince you to vote for someone who promised to start impeachment proceedings (or, in this realest of all possible worlds, at least not vote against someone because of that promise).

[radish]

kenB, I'm not sure I agree, but point taken.

[Anderson]

Thing is, Bush is never going to be removed from office for violating the law on the pretext of defending the country, whether the lawbreaking was necessary or not.

Just ain't going to happen.

Impeachment & removal, I daresay, are all about *motive.* It's a political process, not a prosecution, where the state doesn't really care why you were driving 40 mph in a 35 mph zone. (This is why Clinton walked, for ex.--enough lawmakers heeded their constituents' belief that Clinton lied to conceal the affair.)

Now, if it could be shown that the NSA program was abused for political purposes, or somesuch ... on Bush's direction, or with his knowledge and assent ... *then* we're talking impeachment. Not before.

[Slartibartfast]

You do realize, don't you, that the commenters here aren't your friends and family

Oh. Horrible mistake, then. How embarrassing.

[Slartibartfast]

knocked up

My high school band had a good time with that one while in London. "What time shall we knock you up in the morning?" Early, and often.

Convince you of the appropriateness of impeachment proceedings.

No. I'm convinced of the need for an investigation, though, which puts me right where Conyers says he is.

Look, right now I'm prepared to reelect Bill Nelson, who is a Democrat. I've voted for Bill previously, though, so that wouldn't be a departure for me. I'm considering who I'd oust Ric Keller in favor of, though, and so it'd be nice to get a feel for whether either party is serious about anything at all, or if it's all completely about political dominance for both. If the latter, I'm simply going to randomly vote to oust incumbents.

[Slartibartfast]

OK, maybe not randomly.

[liberal japonicus]

OK, maybe not randomly.

I'm reminded of the line in Candide, about how the British shoot an admiral from time to time 'pour encourager les autres'

[Josh]

Oh. Horrible mistake, then. How embarrassing.

Hey, you don't have to listen to a word I say. But somehow I don't get the feeling you particularly enjoy the misunderstandings that seem to crop up so often. (Which is to your credit, BTW. Other people, I'd suspect they were trolling.)

[Jesurgislac]

Josh: Then what exactly did you mean when you said "I'd say the decision of a federal court is pretty formal."?

Let us begin by accepting that to a Brit, "he stands accused" means merely "He has been accused" and not "criminal charges have been brought against him". I had no idea of the American meaning. As Andrew, comprehending immediately, pointed out, the US and the UK are two countries divided by a common language: I am quite good at writing American English, from years of experience, but I am not a native speaker.

Therefore, when I was told "not formally", I argued that an accusation by a federal court is a formal accusation: which, in British English, meant simply that a judge with authority to decide had (as she indeed has) made a formal judgement that the actions that Bush and his administration and his supporters had been claiming were not criminal, but which they did not deny committing, were in fact felonies. When you said "not formally" I nearly made a joke about "how formal did the judge need to be? White tie?" which I now wish I had, because it might have established that we were using two different meanings of "stands accused".

I understand now that because "stands accused" has a definite meaning in American English that it does not in British English, "not formally" meant, to an American reader, "Yes, but he has not been formally charged with these felonies" which it is true, he has not.

But he has, in British English, been formally accused: a judge acting within her sphere of authority, a member of the Judicial branch of government, has given formal judgement that members of the Administrative branch of government have been committing felonies while in office.

Again, I was not attempting to make the argument that you thought I was attempting to make: we were both confused by a difference between two similiar dialects of English.

[Slartibartfast]

But somehow I don't get the feeling you particularly enjoy the misunderstandings that seem to crop up so often.

No, I don't. But I don't get this sort of thing in other comments threads, either, so I'm guessing that it's not me. Nor do I get it at work, or at social events where I'm around people who don't know me all that well.

This doesn't exactly lead one to a firm conclusion, but it does sort of suggest that it's not just me.

[kenB]

But I don't get this sort of thing in other comments threads, either, so I'm guessing that it's not me.

On the assumption that ObWi is the only liberal site you comment on, I suspect that this is due to a combination of factors: on the one hand, I think you have a habit that was shared by several other conservative Taciturns back in the day -- when you see a comment that advocates the absolute rightness of some bit of liberal dogma and has what you see as glaring holes, you sometimes post elliptic comments that point in the general direction of those holes instead of laying out your whole argument. This was an OK strategy when the real audience was the other conservatives who would see exactly what you were alluding to, but it's problematic when you're attempting to actually communicate with the original commenter in a community of other liberals who tend to share the same set of assumptions and blind spots.

At the same time, for some people here you're marked as being on The Other Side (which impression you reinforce when you stubbornly persist in occasionally disagreeing with the general consensus), and so they'll tend to interpret your comments in the most uncharitable way possible. This is of course unfortunate and should be discouraged; but the more elliptic your comments are, the more blank canvas you leave them to fill in with their palette of sinister colors.

Anyway, that's how it seems to me, take it for what it's worth.

[Slartibartfast]

That's probably a fair assessment, kenB. Although in this case I wasn't so much picking at holes as probing for just what the plan of action is. Possibly my thinking has changed a great deal more than my style of writing.

And of course that's one vote for "circular" and another for "elliptic", which brings up the question of my eccentricity, on a scale of 0 to 1.

[liberal japonicus]

What precisely are the opposite of 'sinister' colors? ;^)

[radish]

Slart, maybe you could improve your overall signal quality by posting in batches when you're at perigee?

[Jesurgislac]

What precisely are the opposite of 'sinister' colors? ;^)

Colors that bend right. ;-D

[Slartibartfast]

Periapsis, unless you're assuming I'm in Earth orbit.

[Slartibartfast]

What precisely are the opposite of 'sinister' colors? ;^)

That would be "dexter".

[kenB]

I've been around here long enough to know even as I was writing that comment that someone was probably going to make a joke regarding either "elliptic" or "sinister" or both. I kept them in there just because I draw comfort from seeing my expectations fulfilled.

[Sebastian Holsclaw]

"I am quite good at writing American English"

Is that American 'quite'? :)

I just wanted to point out that, for me, the disturbing thing was Balkin supporting the idea that manipulating the record in the way he describes would be a good thing. I'm not at all sure that Judge Taylor actually manipulated the record in the way he describes.

[Jesurgislac]

Sebastian: "I am quite good at writing American English"

Is that American 'quite'? :)

You get points! :-) When I composed the sentence in my mind, it was a British "quite": when I typed it in, I realized that it could be perceived as an American "quite": and this amused me, so I left it as is.

[Donald Johnson]

I don't think there was a problem of British vs. American English here. I understood Jes to be saying that because a judge had concluded Bush's actions were illegal, by implication Bush was a criminal. All of us know that Bush hasn't been indicted and I think we all knew what Jes meant. This is just another one of those pointless arguments that occur so often in ObiWi comment threads. No factual issue is at stake, but people enjoy quibbling over how something was phrased.

Not that there's anything wrong with that.

[radish]

Periapsis, unless you're assuming I'm in Earth orbit.

Ooh, I was sort of assuming that. Worse, I was also assuming that your audience is, uh, geocentric? Terrestrial? This rocket science stuff is a lot trickier than I thought.

[LizardBreath]

Hey, it's not brain surgery.

[hilzoy]

Seb: I haven't yet read the article Balkin describes here, but it sounds like it might interest you. (Also as though it advocates the sort of 'originalism based on the intension of words, not their extension' view that Katherine and I have been advocating for a while.)

[Sebastian Holsclaw]

I've been talking about it over at Volokh's (I couldn't register at Balkin's own site). If I have time, I'll write about it this weekend.