Liberal or Conservative Legal approach?

A personal legal philosophy is important to understanding there approach to the law. There is a sense in which I am liberal and a sense in which I am conservative. As someone who worked in the halls of Congress, my most fundamental value is that I believe in the value of democracy (with a small “d”) as a means of dispute resolution. Because of this, I see a narrow role for the courts as a jurisdictional matter. I think modern courts are much too willing to thrust their noses into places where they don’t belong and usurp prerogatives of Congress and state legislatures. I don’t believe that the courts’ motives for this usurpation are necessarily bad; they are simply trying to deal with the case or controversy that has been presented to them. Merely because someone approaches a judge with a problem, however, doesn’t mean that the judge must therefore be the best person to resolve that problem; in most cases he or she isn’t. So in this sense, I have a conservative judicial philosophy because I believe that the role judicial courts should play in American life is quite limited. Another way of looking at this, however, is to say that I have a liberal political perspective because I believe that the power of the people as a whole should be quite large.

On the other hand, I tend to be liberal as a matter of policy when it comes to the administrative side of the courts. That is, once a case or controversy does fall into the scope of a court’s power, I believe that the court has a relative freedom to run the case as he or she see fit. For example, as I have blogged about below, in sentencing matters I am willing to give a judge wide latitude in the sentences they impose (only confined by the broad outlines set by the legislatures) even at the risk that sentences, when compared socially, appear to be arbitrary. Put another way, I defend a wide scope to judicial discretion and I like to mock what I call the modern tendency of a “Clerkship of the Judges”: the tendency of judges to embrace their job as if they were nothing but a high-paid clerk with no independent power to act on their own.

Put simply, I believe that the power of the courts should only be triggered in unusual circumstances but once triggered that power should be wielded expansively. A position that seems to be the flip side of the way the law is dealt with today.

In defending the power of democracy, it should not be assumed that I agree or disagree with any specific policy. Much of what Congress does is pointless if not actually harmful. I just simply think that history shows that for all it’s problems, democracy as a means of dispute resolution is better than anything else man has yet devised.

18 U.S.C. Section 3553(a)(2) and Procedural Error

Over at Sentencing Law and Policy a commenter has argued that 18 U.S.C. Section 3553(a)(2) still requires judges to provide specific reasoning for their variations from guidelines sentences. As a constitutional matter, this may be correct; I am not an expert in the nitty gritty of what is dicta and what is not in Gall and whether Gall’s call for an explanation is enough to overturn the wording in 18 U.S.C. Section 3553(a)(2) that calls for a specific reason. In my post below regarding US. v Levinson, I argued that the court’s conflation of the concepts reasoning with explanation was wrong. It is possible, however, that the court’s conflation actually has its origin in the confusion of SCOTUS when it wrote Gall. This is a nuanced argument and I need to consider it fully.

In any event, even if 18 U.S.C. Section 3553(a)(2) is still good law it doesn’t undermine the heart of my comments regarding US. v. Levinson, which is an argument based upon proportionality. Nor does it address the foundational issue of how specific a reason has to be to qualify as a “specific reason,” which still remains a subject of debate.

Stupid is as Stupid Does

Much of today’s legal reasoning is fantastical but for good or for ill it occasionally reduces to farce. One such example is the Iowa Supreme Court’s recent decision in Willard v. Iowa. In fairness, much of the opinion’s reasoning is not out of the ordinary. But the fundamental justification for the court’s decision is plainly stupid.

US v. Levinson and the Nature of Procedural Error

It is no secret that I am a big fan of SCOTUS’s recent 6th amendment jurisprudence beginning with Apprendi all the way through Gall. Yet despite the fact that the courts have been working with this line of cases for eight years, lower level courts still have a significant problem implementing these changes. Because it illustrates one key aspect of these difficulties nicely, I am going to blog about US v. Levinson.

In Memorum: Everett Dirksen

Last week marked the anniversary of the death of Everett Dirksen. If people think of him today at all, they think of him as one of the Republican proponents of the Civil Rights Act of 1964 or as one of the main supporters of the Vietnam War. Less well known is the fact that there is a U.S. Senate Office building named after him. I once worked there.

Statutory Construction

This post on FindLaw.com is a excellent example of how one presents a very biased viewpoint under the rubric of informing the public. It misrepresents the concept of texualism as well as concept of legislative intent. It’s a mess; I am going to try and fix it.

Ministerial Exception Part III

While I was corresponding with Gritsforbreakfast on the post below, I was troubled by an aspect of our conversation that bothered me but that I couldn’t frame adequately. Today it clicked. An issue that I think is being overlooked in the discussion of the ministerial exception is the religious freedom of the minister.

Ministerial Exception Redux

This post at Grits for Breakfast and this one at EvidenceProf blog regarding this decision by the Texas Court of Appeals shows once again how little is understood about the ministerial exception. I actually agree with the court’s ruling in this case but that’s because I don’t agree at all with Grits or Colin’s understanding of its ruling.

The Narrative Part II

This post over at The Confluence caught my attention as it was under related topics for my prior post. It is a good example of just why Hillary lost to Obama and what he understood that she did not. Elections are not won or lost based upon a narrative. Every election is won or lost at the precinct level, it’s won by knocking door to door, getting out the vote. The reason the PUMAs are so angry is that the bought into Hillary’s narrative and that narrative didn’t come true; in their eyes the guy with the “black hat” won.

Thoughts on “The Narrative”

Peggy Noonan has issued some follow up remarks on her ill-timed on-air remarks yesterday. Sadly, she does not really explicate on her most interesting remark, which is her comment that what she calls “The Narrative” is not at the heart of Republican beliefs. I am going to take a stab at an explanation.