Arizona v. U.S.: A Summary of the Oral Arguments (and a Defense of Solicitor General Verrilli)

Well, it was uberlawyer Paul Clement versus Solicitor General Donald Verilli round two, before the Supreme Court Wednesday.  Elena Kagan chose to recuse herself because of involvement in the case when she was solicitor general, and the issue was Arizona’s famous immigration laws.  I waited a few days hoping to have audio of it and I hadn’t seen it appear until yesterday.  You can listen here, and download the transcript from the same link.

Now let’s start by talking about the effect of recusal.  What it means is that if there is a tie, the ruling below stands, but the decision has no precedental effect.  In the case of Obamacare that is a problem because there are conflicting cases; so it would be the law of the land in some circuits, but not others.  In this case, I believe it is only Arizona’s laws on the docket and thus this wouldn’t be a huge problem if the court below was upheld by default.

Let me also say something else.  Some people have analyzed this and have argued that Verilli is screwing up as an advocate.  Well, let me say something in defense of his quality as an advocate.  Imagine you run an air conditioner company, and you assign a director of sales to each state and rate each director according to how many air conditioners sold per capita in each state.  And you call Sales Director Verilli into your office one day and say, “Damnit, Donald, of all of my fifty sales directors, you are the worst.  You have sold less air conditioners per capita than any of the other directors.  Johnson who is in charge of sales in Texas has sold ten times as many air conditioners as you.  Wilson in Arizona has sold 9 times as many per capita.  What do you have to say for yourself?”

And Verilli replies, “sir, you have assigned me to Alaska.”

Okay, that is a weak attempt at a joke, but with a serious point.  This might be my political biases coming through, but it seems to me that comparing Verilli’s success to Clement’s might be a bit unfair.  This is especially true when it comes to the part of the law that requires local police to run an immigration status check whenever they stop someone based on state law concerns and if that person is here illegally to report to federal officials that they have this person in custody.  Federal law makes it clear that local police can do that.  Federal law also makes it clear that no state can pass a law forbidding local police from doing that.  And Verilli admits that there would be no legal problem if every law enforcement official in the state decided to do exactly what the law required on their own.  So Verilli is reduced to arguing that the Constitution (in combination with Federal immigration law) prohibits Arizona from passing a law requiring local police to do what they can do voluntarily.  If that sounds like a hard argument to make, that’s because it is.

So if Verilli can be criticized at all for all of this, it is for bringing the suit at all, at least on those terms.  I think that the argument in regards to the reporting provision was so weak that it undermined the government’s arguments in relation to the other parts.  A good lawyer would have said to the Obama administration that if they pushed forward on that part of the challenge, that it would harm the rest of their case.  But who is to say Verilli didn’t do that?  Maybe he said that to Obama and Obama said, “I don’t care.  Challenge it anyway.”  And then in that case, it wouldn’t be Verilli’s fault, now would it?

Anyway, so let’s go through the argument, more or less in chronological order.

Friday Frivolity: The Bad Video Game Rap Edition! (Plus Uncharted as Feature-Length Films!)

Actually this phenomenon is not exclusive to video games, but there was a time when this “rap” thing was new, and different, and lazy advertising agencies would tell various companies that the way to reach kids was to do a rap ad... by people who knew nothing about hip-hop.  So you would see things like car dealers who clearly never listened to an actual rap song, rapping as you covered your ears.  It was clearly an example where literally no one who made the ad thought the music was good, but they believed other people when they told them it was good or that others would like it.

In my humble opinion, if you can’t see the value in a thing, probably no one else can either.

So via Kotaku you get this psychological punishment:

Also this is completely unrelated, but if I don’t post it soon it is likely to disappear for copyright concerns.  Those of you who own Xboxes (or, God help you, Wii’s) probably have heard all the shouting about the Playstation’s Uncharted series.  You are told that this mash up of Indiana Jones style adventure and cover-based shooting is like a playable movie.  Indeed many people note that spectators often enjoy watching the game just like a movie, a concept that Playstation itself riffed off of in one of its classic “Kevin Butler” ads:

Well, my dearly deprived Xbox (and *cough* Wii) players, now you can get a taste of what you are missing.  Someone took all three Playstation 3 games and edited them down to movie-length videos.  Some of the graphical fidelity is lost—in other words, it will not look as amazing as it does in a Playstation 3, on an HD TV.  And judging by a few minutes of the first video, it appears that they cut out about 90% of the actual gameplay.  But still it’s about as close as you are likely to get to enjoying these games without buying the necessary hardware and software.

So I present to you, Uncharted (1): Drake’s Fortune:

Uncharted 2: Among Theives:

In my opinion, #2 is the best in the series, even if there wasn’t enough Sully in it.

And last is Uncharted 3: Drake’s Deception.

And if there is any doubt that the “Indiana Jones torch” has been passed to this series, you can go back to an old Patterico post I wrote showing Harrison Ford acting like a kid as he plays the third game, here.

Incidentally there has been stories for a while now of an attempt to make these into live action movies, starring Mark Wahlberg.  Well, let me respectfully suggest to the studios that you avoid wasting a ton of money on a movie that will annoy fans of the series and will not win new converts, and just hire this guy and release what he made on the big screen.  No, it won’t be a blockbuster, but I bet that it will be infinitely more profitable.

(Consider that an only half-serious suggestion.)

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

The Seating of Hiram Revels and the Meaning of the Fourteenth Amendment

You know, I have told this story several times privately and it occurred to me that it was the perfect kind of thing for my blog, given my general legal and history geekery.  I thought I would tell you about the first black man seated in the Senate, the Reverend Hiram Revels.  This is him at the right.

One of my side projects when I was an undergraduate student was studying the history that surrounded the passage of the Fourteenth Amendment.  I was keenly interested in what the anti-discrimination principle meant to them.  That is why, for instance, I learned so much about Thaddeus Stevens.

And one of the veins I studied was the story of the seating of Hiram Revels.  For a day or two I sat in the library at my school reading the congressional record as they considered the issue and it actually is a fascinating story.

The year was 1870, and this was to be the first year that Mississippi was to be allowed to have representation since the Civil War.  Back in that day, senators were chosen by the state legislature.  That is, instead of choosing your Senator by direct election, the legislature voted for its choice to be your senator.  So when you hear of Abraham Lincoln running against Stephen Douglas, what he actually was doing was he was campaigning for his party as a whole in the state, so that they would have enough power in the legislature to make him the Senator.

That is important because that meant that when Mississippi was let back into representation in Congress, they had two choices of seats to offer Mr. Revels, and it was up to the Mississippi legislature to choose which one they offered.  And whose seat did they give him?

I Don’t Care About Ann Romney’s Life Experiences (And I Shouldn’t Have To)

First, dear reader, I will have to apologize for the very light blogging this week.  It’s not for any bad reason.  For instance, just this week I obtained a solid court victory over the convicted terrorist (bomber technically) and perjurer Brett Kimberlin (and if you don’t know about my struggle against this cretin, you should catch up here—it might be very important in the coming days).  And my parents are in town taking up pretty much what little spare time I had.

And bluntly you should pay attention to this space.  Big, original reporting might be in the offing depending on how things work out.  But I will have to be vague on this point.

Let's just say you might have a need to get out the popcorn.

But I have been watching in the background all week as we have seen this silly dustup where first Hilary Rosen and then various other liberals criticized Ann Romney for being... a stay-at-home mom.

And I could go into how this used to be the ideal.  Or how millions of American women would prefer to be a stay-at-home mother, but because of finances couldn’t afford it.  Indeed many feel guilty for not being a stay-at-home mother.

I could point out that feminism has created this situation.  By increasing the number of women in the workplace, they increased the supply of labor.  If you increase supply, you reduce prices—a.k.a. wages—and so soon the wages of men and women are depressed until many lower income women have no choice but to work.  And that is in the classic nuclear family.  The sexual revolution has accelerated the rise of rise of single motherhood and other non-traditional living situations, increasing the financial pressure that very often forces women to work when they might prefer to be a full-time mom.

And before you get all huffy and say that I am blaming feminism for forcing women into choices they might not prefer I will emphasize that there is a difference between causation and blame.  There was nothing wrong with the many women deciding that they were not destined to stay at home.  Lord knows I don’t want people dictating my career choices to me, and I will be damned if I do so for anyone else.  So long as you can do the job, it’s not my business to stop you and I generally prefer to figure out if a person can do a given job by letting them try and succeed, or fail.  But I can’t deny that there has been a cost to feminism.

But more fundamentally than all of that, I don’t care about Ann Romney’s qualifications, politics or anything.  The job of the first spouse not to do anything that matters.  So you take up some cause that no one can get too bent out of shape over, like Nancy Reagan asking kids nicely not to do drugs, or Michelle Obama asking kids nicely to get in better shape.  Yeah, I apply the rule equally to Michelle Obama, too.  Yes we might suspect that Michelle Obama’s request might later become Barrack Obama’s demand, but the fact is as far as I can tell Barrack is his own man and to the extent that they think alike it is simply the mind meld you expect happily married couples to have.

Yes, Diabetes is Probably a Disability; A Response to Ed Morrissey

So this morning we get news via Kevin Drum that the Obama administration is claiming some kind of victory in giving us the first Supreme Court justice who was confirmed with a disability, which everyone takes as a reference to Sonia Sotomayor’s diabetes.  This led Ed Morrissey over at Hot Air to wonder if diabetes counts as a disability.  And he doesn’t say this uncaringly, but with indeed sympathy toward people with diabetes because, as he discloses, his wife had Type I diabetes up until recently.  But he felt that it was ridiculous to treat it as a disability even when she had it, because as long as she took her medicine, she is fine.  At least that is how I read his argument.

As a lawyer, speaking about statutory construction, I would say, that under the Americans with Disabilities Act (ADA) diabetes is “almost certainly” a disability.  But to talk about it and the policy behind this, I have to get a little philosophical about the ADA.

You see in a very real way, the ADA is an upside down law.  And it is the upside down nature of the law that has led to a lot of confusion.

Let’s start with the paradigmatic example of wrongful discrimination: skin color.  Most normal people (with the recent exceptions of John Derbyshire and Marion Barry) recognize that it is wrong to judge a person by the color of one’s skin; that one should be judged by the content of one’s character, to riff off of Dr. King’s immortal phrase.  Now why is it wrong to judge people by the color of their skin?  Because, most sane people will say, there is no significant* difference between the races.  So it is considered wrong to discriminate based on color because it truly doesn’t matter; it’s irrelevant.

(I have often said that the only relevance of race is the existence of racism, and nothing I am saying here is meant to contradict that or the implications of that.)

Obama Stumbles Badly on Judicial Review (Update: Audio Link Added) (Update: Instalink!)

Update (IV): Instalink!  Sweet!  (And thanks.)


Update (III): The Fifth Circuit has revised its request and it has already been completed by the esteemed Bartholomew Simpson, Esq.:





I mean that is what it is like, right?  (Created using this site.)


Update (II): Scroll down for my analysis of the audio from the Fifth Circuit essentially spanking the U.S. counsel, for what the President said.  I am leaving her name out of this to reduce the level of embarrassment because none of this is her fault.

So yesterday the President made some stunningly stupid comments on the challenge to Obamacare:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

I would be hardly the first commentator who pointed out that it is far from unprecedented for the Supreme Court to strike down Congressional laws as conflicting with the Constitution.  Now truthfully, they far more often strike down state laws, than Federal laws, but they do indeed get struck down all the time.

And I am not the first to point out that this claim is dishonest in another way, namely by claiming that a strong majority passed this law.  In barely squeaked by and indeed in Massachusetts, Scott Brown was elected precisely to stop this legislation, and the Democrats resorted to shenanigans to get it passed without his input.

Fewer people notice how dishonest the lines just after it are:

And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.

First off the average conservative commentator thinks that this law is unconstitutional.  So if anything counts as activism in their minds, it would be upholding this law, mandate and all.

Second, it’s interesting that he frames this merely as a conservative concern.  That is because he has no cause to complain about activism.  As I wrote in my Patterico days:

And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is not supported by the [C]onstitution or precedent—they have no principled objection to that.  So their objection is merely to losing.

You might also enjoy the “augmented” version of the quote by Dana Pico at Common Sense Political Thought (I always appreciated the kind words written there, too).

The point is that it is fundamentally dishonest for a liberal to complain about judicial activism.  That’s not to say that true judicial activism isn't a problem.  After all, suppose that secretly behind closed doors the outcome of Bush v. Gore was really about which candidate they preferred?  Then that is a problem, isn’t it?  I mean every justice, as an American citizen, has a right to vote for President, but this would give their vote infinitely more power than any ordinary citizen, if they choose election law cases based on who they want to win.  So much for one person, one vote, right?  I don’t think that is what they did, but I would be the first to denounce it if that is what I believed.

And put aside the reality behind Bush v. Gore, the case also shows how inherently dangerous it is to have a large portion of the population believe that the Supreme Court is more or less corrupt.  I mean that is what activism is, really: corruption.  It is justices disregarding their oaths of office and exercising power not granted to them.  And the problem is that when many people believe that the Supreme Court is corrupt, that they let their politics rather than the law guide their decisions, then it means that we have no neutral umpire in our government.  There is no neutral party that the other branches can go to for fair arbitration.  So when we have a crisis like the one Bush v. Gore represented, we have a very real danger that a large part of the country will not accept their decision as binding.

Anyway, today Obama tried to walkhis comments back, and ended up coming off clumsy again:

MR. SINGLETON:  Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.  But that is exactly what the Court has done during its entire existence.  If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?

THE PRESIDENT:  Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner.  Right?  So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this.

So it’s not unprecedented to overturn a Congressional law, just one in the area of commercial regulation since around the New Deal, where most people agree it is commerce.  You know yesterday I thought the President couldn’t actually be ignorant enough to believe his words, especially given that he was a Constitutional Law professor at one time, but now I am not so sure.  For instance, Lochner is a 1905 decision, and the Supreme Court struck down many laws purporting to regulate commerce since then and indeed as pointed out in oral argument last week, Lochner concerned itself with state power, not Federal power.  And indeed several laws in the New Deal were also struck down.  I mean what Obama said is just bad history.

And of course Congress has asserted that the Commerce clause has applied to actions that were plainly not commerce, such as carrying a gun near a school or raping a woman.  Now, in those comments Obama seemed to be thinking of those cases when he said it was something that “I think most people would clearly consider commerce.”  Except that most people do not think that sitting on your keister and not owning insurance is commerce.

And what is really inexcusable about all of this is that he knew sooner or later he would be asked about these comments, so he had to have given them some thought, but even then he decided to half-ass the thing.

And it is still a not-very-subtle threat.  We know by now that the reason why the Supreme Court stopped challenging the other branches of government was because FDR threatened their judicial independence with a court-packing scheme.  So all this talk about how it hadn’t been done since the New Deal is plainly a reference to that threat.

And its toothless, too.  Most of the American people do not think this law is constitutional.  And a sizeable chunk of the American people won’t have an opinion on the subject, but will instead trust that the Supreme Court is right so if the Supreme Court declares it to be unconstitutional, that group will decide the Obamacare violates the Constitution.  I consider that a servile way of thinking, but it undeniably exists.  And then you have the crowd that would say somehow it is unconstitutional to strike Obamacare down—but would they even really believe it?  These are often the same people who claim with a straight face that the evangelical Christians who wrote the Fourteenth Amendment were open minded enough about gay people as to have intended—but forgot to write down—a right to gay sex in that amendment.  How many of them even believe what they are shoveling when they say that?  So how much actual outrage are we talking about here?

Anyway, regardless of his walk back, this was either too late or not good enough for the Fifth Circuit which is hearing its own Obamacare challenge right now:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

Greta Van Sustern has an image of the letter sent, but since it refers only to the questions during oral argument, and I can’t find a link to that, it’s not very illuminating.  You can read her notes on listening to the oral argument and I am willing to bet she will have audio tonight on her show.

Update: Google is my friend!  I just found the audio that appears to be it.  I will update when I get a chance to listen to it.

And they are specifically asking for a three page single spaced letter.  So really it is almost like an essay assignment as punishment that you might have seen in elementary school where you have to write x number of paragraphs explaining why you should not throw spitballs at other students, or something.

Update (II): I had a chance to listen to the audio from the Fifth Circuit.  I am listening on windows media player.  But if you go to the 18:00 mark you are pretty close to the beginning of this.

You can tell that when they ask her about the power of judicial review that the question is completely out of left field for her.  Here’s my somewhat editorialized transcript, but if you listen for yourself, I think you will confess to my accuracy:

Q: Let me ask you something a little more basic…  does the Department of Justice recognize that courts have the authority in appropriate circumstances to strike down a statute because of one or more constitutional infirmities?

Long pause.

A: Yeee—es your honor.

And here’s my slightly redacted transcript of her thoughts during that long pause, the accuracy of which I am equally confident:

What the f--- is he talking about?  Am I hearing him right?  Okay, go with it.

Really, it is borderline cruel what they did to this poor attorney.  It’s not her fault the President is saying these stupid things.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

“The Donning of a Hood Is Not Consistent With This Rule:” The Latest Martin/Zimmerman Shooting News Roundup

Update: As you will see below, several Cnn videos did not embed properly.  There is some kind of bug in their software that keeps causing the same video to embed.  So in each offending case, I replaced the video with a link.


Update (II): I just saw where ABC news admits that video it showed does in fact show evidence of Zimmerman being injured.  Scroll (way) down for the info.

So this is the latest in my Trayvon Martin round-ups.  You can see all the posts where I discuss the case by using this link to aggregate them.

Now as preliminary matter let’s remind ourselves about the law again.  Whether Zimmerman was following Martin or not is beside the point; there is no law that says that you must run the other way when you think a person is a criminal.  At most it goes to Zimmerman’s credibility—that is if he lied about that element of the story, one wonders what else he might’ve lied about, and if he told the truth about it, you have that to contend with, too.

What does matter are three crucial questions:

1.      Who struck the first blow?

2.      At the moment he shot, did Zimmerman have a reasonable fear that Martin was about to either kill him or cause serious bodily injury?

3.      If Zimmerman struck the first blow, could he have reasonably escaped without endangering his own life?

And let’s point out something else.  Once he invokes the self-defense defense—as he is almost sure to do so at trial—it is not his burden to prove he acted in self-defense.  Instead it is the State of Flordia’s burden to prove he did not.  So bluntly, it was self-defense until proven otherwise beyond a reasonable doubt.  That is how the presumption of innocence works and it works that way in every state but one.

What The Narrative Against Zimmerman^® maintained from the very beginning was that this was a case of profiling—a euphemism for racism, really, in this case.  You could see it from the beginning that The Narrative Against Zimmerman^® was that George was a typical white racist who assumed that a black child was a criminal based on nothing more than the color of his skin and hunted him down and killed him in the street.  The irony of all of this, is that it represents the left’s “profile” of a bigoted shooting.  They were so attached to this Narrative^®, that when it turned out that Mr. Zimmerman was not exactly a white dude, they called him remarkably a “white Hispanic.”  And meanwhile, they maintained it was somehow unfair and wrong to point out any facts that might support Zimmerman’s initial suspicions.  I would go as far as to say that if George Zimmerman had been named Jorge Zapata, this story never would have gained national attention.  But because he had a “white” sounding name, The Narrative^® was set.

By the way, as a general rule black people are most likely to killed by black people, white people are most likely to be killed by white people, and “other” is most likely to be killed by “other.”  That is by FBI statistics, which you can read about at the link.