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.

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.

Willard is a sex offender. After having been convicted of his offense, Iowa passed a law banning convicted sex offenders from living within 2000 feet of a school. This law was appealed in federal court (by someone other than Willard) and found unconstitutional. The state then appealed to the 8th Circuit, which overturned the district judge and found the law constitutional. Three days after this ruling, Willard buys a home within 2000 feet of the school district. The police inform him that he has 30 days to move. Willard sues which a bunch of claims, most of which even I agree are bogus.

But before the court can address those claims, however, it has to deal with the threshold issue of whether Willard was given proper notification of the law. Clearly, three days is not much time for the ordinary person on the street to be informed of 8th Circuit’s ruling. If there was no possible way for the ordinary person to know of the law, then it’s unreasonable for the courts to enforce that law. The Iowa Supreme Court’s tap dance around this issue is farcical.

On remand, the federal district court recognized an agreement of the parties to resume enforcement of the statute on September 1, 2005. We conclude Willard was not legally entitled to reside in his house when he purchased it. Rather, the State simply agreed to postpone enforcement of the statute. Willard should not have been under any illusion that he was entitled to live in the house when he purchased it. (emphasis in original)

As the school yard saying, “Stupid is as stupid does,” makes clear, enforcement of the law just is the law. Without enforcement, the law is nothing but a paper tiger. It has no means; it’s is merely ink on paper, glowing pixels on a screen. The claim that the state agreed to waive enforcement of the law but not the law is a distinction without a difference. To claim that a person is required to obey a law that the state has agreed not to enforce is simply bizarre. The court should be ashamed of itself. The only rational conclusion was Williard’s; it is the court that is creating the illusion.

If you have trouble conceiving this imagine the following. A parent tells a child that he cannot play outside after nine pm. The child objects and says that he is old enough at ten to play outside. The parent says OK, you can play outside tonight while I consider your point. The child comes in at 10pm. The parent says that they have considered the child’s point and rejected it; ten years old is still to young to be playing outside after 9 pm. And oh, since the child did go and play outside after 9 pm that evening, the child is now grounded for the next week.

Say what? The child has every right to be outraged, as does Willard in this case.

This case is another case, like Carter, where the court is remanding a case to the trial judge because the judge did not, in the eyes of the court, explain its reasoning with significant exactitude so that the court could conduct meaningful appellate review. In Carter, the court sent the case back because it concluded the court had not provided adequate explanation in couple of minor areas, despite the fact that the lower court did provide adequate explanation in all other areas. In Carter, I felt the court was being unduly nitpicky and wasting judicial resources in the process. While there may have been some minor flaws, there was enough explanation in the opinion as a whole to justify the sentence imposed.

Here, I think the court simply misunderstands Gall’s need for adequate explanation of the sentence. The court writes, “In general, however, when we are reviewing a sentence and find ourselves unable to see how the reasons articulated lead to the punishment imposed, we will be focused on trying to obtain a better understanding of the district court’s reasoning.” Not only is there nothing in Gall that permits the court to do this, it’s actually a legally impossible task.

The words reasoning and explanation are not the same words and do not mean the same thing. To explain means to make a statement plain; to reason means to provide a justification for. In this case, the trial judge does in fact explain his decision; the appeals court is overturning it because they do not like his reasoning. That’s wrong.

There is nothing procedural about the appeals court dislike of a trial courts reasoning. Procedural error only relates to the steps or process that the court takes to reach a decision. In fact, in Levinson the court explicitly admits that the trial judge followed the correct procedure. The problem the appeals court has isn’t with the procedure itself, its that the court is “unable to see how the reasons articulated lead to the punishment imposed.” This isn’t a disagreement with a procedure; it isn’t a disagreement with the substantive result; it’s a disagreement with the relationship between the two. The court, without any foundation, is actually attacking a perceived lack of proportion and then calling that procedural error under Gall. But Gall specifically says that it is a lack of adequate explanation, not a lack of proportion that is procedural error.

To understand this clearly, it is helpful to remember that the purpose of sentencing procedure is make sure the judge has considered all the relevant information; it is not to dictate a specific result. Justice Holmes said that “General principles do not decide specific cases.” Stripping off the modifying words of that statement, the sentence reads, “Principles do not decide cases.” This is the foundational element of the law. There is no amount of reasoning nor any particular type of reasoning that can lead a court to a conclusion. If the appeals court plans to remanded cases when it is “unable to see how the reasons articulated lead to the punishment imposed” then, if it is honest, it will remand every sentencing case because every sentencing case meets that criteria.

Under Gall, the appeals court can overturn a trial judge for two reasons. The first is that the TJ has made a procedural error, including a lack of an “adequate explanation” for the sentence. The second is that the appeals court can rule the sentence substantially unreasonable. There is nothing in Gall that permits the court to examine the relationship between the explanation offered and the sentence imposed. The court cannot overturn a sentence because it disagrees with the judges reasoning.

I think about Senator Dirksen today not for his policies or his politics but for his character. In his eulogy, President Richard Nixon had this to say of Dirksen, “As he could persuade, he could be persuaded.” I first become aware of this quote during my 20s by reading “Lend Me Your Ears: Great Speeches in History” by William Safire. At that time, I was heavily involved in Toastmasters International and spent much of my time making speeches throughout the Washington DC area. To that young man, there was nothing more thrilling than speaking in front of ten, twenty, or even a thousand people and watching them bend and move to the force of your oratory. It was addictive.

Many years have passed since that time and I haven’t given a public speech in a decade. The intervening years have taught me a lesson, and it is the lesson that Everett Dirksen seems to have learned: that while it is a mighty power to be persuasive, it is an equally great power to be persuaded. The tragedy of our political discourse today is that there is no one left to be persuaded. Everyone is in some camp, a solider in the army of some candidate, outfitted with quick retorts and prepared to fire at the first sight of any living thing. This is not democracy, it is merely the pursuit of war by other means.

It seems to me in my middle age that what Nixon said about Everett Dirksen is perhaps the greatest thing anyone can say about another human being. If a man is to convince others that he is right, he must not just listen, he must not just be open minded, he must be persuadable. If he is not persuadable there is no conversation, there is no discourse, there is simply a shouting match under the cloak of politeness. If America is to uplift itself from the cultural morass in which it finds itself, it must learn again to enter into a conversation with an open mind, a willingness to admit when one is wrong, and if necessary, to look a fellow citizen in the eye and say, “By gum, I hadn’t thought of that. You’re right.”

The underlying presumption of both textual and purposive theories of statutory construction is that there is a value neutral way of interpreting the law. The arrogance of both these viewpoints is that, by golly, they’ve got a handle on this value neutral method and those other guys are just biased. It’s like a greased pig or the Colonel’s Secret Recipe, only one person can have a handle on it at a time. Point one: there is no value neutral way of interpreting the law, and if there was it wouldn’t be a virtue. This has always been true and is always going to be true. Let’s stop pretending that there is one abstract theory that is superior to the others.

Professor DumbleDorf is exactly right when he says that the judicial results of applying theories of statutory construction do not correspond neatly with modern notions of “liberal” or “conservative”. D’oh. The various methods of statutory construction are just tools to accomplish some particular purpose; most of the time they are just post hoc rationalizations. As Justice Holmes famously noted, “General principles do not decide specific cases.” Point two: Construing a statue using one theory or the other is a meaningless exercise in the abstract as it doesn’t assist a judge in the slightest in actually resolving the case. A theory can never compel a judgment.

The case at issue in fact illustrates these two points well. As Justice Holmes also said, “It is the merit of the common law that it decides the case first and provides the reason after.” The reason that the judges adopted a textual approach in this case is because it is the approach that allows them to get to their judgment most logically. When the article states that, “In dissent, Justice Michael Streit suggested that the record did not rule out the possibility–and thus that the jury might have found–that Isaac in fact intended to and did derive sexual gratification from the fact that a police officer might catch him in the act” we are in the land of the bizarre. No one actually believe this and no rational jury could have found that as a fact. The entire context of encounter angrily militates against it. Moreover, it besides the point; the prosecution was for his crime against the women, not against the police officer. The jury could not have found him guilty of a crime for which he was not on trial. The only basis upon which a jury could reach find him guilty is “he’s a perv; he’s guilty.”

But the article moves from the realm of the bizarre to the realm of the indefensible when Professor DumbleDorf writes, “What possible purpose would have been served by exempting someone like Isaac from the statutory prohibition because, by sheer luck, the objects of his gratification happened not to look out the window and see him exposed, even though another person did?” The answer: because the law does not punish someone because they are lucky or unlucky, it punishes them based upon the actual facts of the case. The luckiness of the situation is simply not relevant.

The fundamental problem with purposivist argument in this case is not that it is a weaker theory; the problem with it’s application in this particular case is that it leads to a judgment that is irrational. The judges adopted a textual approach because the textual approach was the one that allowed them to avoid this irrationality.

The difference between a non-confessional religion and a confessional religion is not just a difference in practice. It is a real, substantial difference in doctrine that directly implicates the Establishment Clause. The implication of this fact is that a minister cannot, as a matter of law, be forced to hear a confession if it violates the tenants of their religious faith or runs counter to their religious practice. When Grits writes, “There will never be a case involving a Protestant where the church has a secret confession, so by saying it can be a factor, it ensures there will be a viable argument mitigating against privilege in EVERY single case involving a Protestant communicant” he is correct and that is exactly the way it needs to be. It needs to be this way not for the protection of the penitent but for the protection of the minister. If it weren’t that way, then the minister’s profession of faith in his or her non-confessional religion would be meaningless. The statue would, as a de facto matter, establish the practice of confessions as a state function. This clearly violates the Establishment Clause. The statue to be constitutional can only allow confessions, not require them.

The consequence of this fact is that when the words “intended to be confidential” are used it is not sufficient to merely look at the intention of the penitent. Looking only to the penitent for intention would completely exclude the ability of the minister to practice his religion. The state has no constitutional basis to force a minister to hear a confession (and thus to carry the moral and spiritual burden of that confession) when the minister doesn’t want to, when his own faith militates against it. In order to protect the religious freedom of the minister, we need to look at his or her intention in receiving the penitent’s communication.

In some situations, of course, the intentions of both parties will be obvious because they will verbally declare those intentions. But in some cases, the intentions of the respective parties will not be clear; they may even conflict. In this case, it would not only be a good thing but a requirement to look at the doctrine and historical practices of the religion as the court attempts to determine the intentions of the parties post hoc.

In conclusion, it is important to remember that when a court rules a communication privileged under the ministerial exception, it is not merely giving force to the legal right of the penitent; it is equally placing a moral and spiritual burden on the minister. Before the court rules in favor of the penitent, it must be certain that such a ruling does not conflict with the ministers own freedom of religion.

Under the Texas Rules of Evidence Section 505 the ministerial exception applies only when it is given to a person in their “professional character as a spiritual adviser” and with the intention of that communication being confidential. Unlike the case I blogged about below, this decision turns not on whether the person was acting in the capacity of a spiritual adviser but whether the penitent intended to keep the communication private. There is no dispute that the people who he confessed to were individuals in their professional characters as spiritual advisers.

Despite the claim by the penitent that he did intend to keep the communication private, the trial court found this statement to be implausible and thus found it not credible, and thus ruled that the confession was admissible. The interesting part of this ruling was the basis for finding the penitent’s claim implausible. The court, correctly in my opinion, looked at the context of the statement. The decisive factors for the trial court was that the particular denomination the defendant belonged to had (a) no doctrinal basis for private confession (2) no history of keeping confessions private and (3) all the people at the confession themselves stated that they understood the statement to be public. Using this contextual background, the judge ruled that the defendant could not have reasonably expected the statement to be private.

Grits writes that he disagrees with the ruling because the court engages in doctrinal interpretation, which the words of the rules of evidence do not expressly allow. Yet the rules clearly allow the court to determine if the statement is in fact confidential. The rules of evidence clearly state that a statement falls under the ministerial exception only if it is “intended to be confidential”. The word “intended” is clearly a word that is judicially interpretable; it foresees the possibility that not all communication is in fact confidential and requires the court to make a judgment. Moreover, the court in this case is not merely assessing whether or not the penitent intended to keep that communication private, the crux is whether his claim that he did so intend is credible. It seems to me that in attempting to determine whether a statement is in fact credible, the court must look to the context in which the statement is made. It seems to me quite natural to look at the factors the trial judge did in order to make that determination.

Perhaps as a policy matter it would be better to draw bright line, but the rules of evidence simply do not do that. If the only factor a judge has to look at is communicant’s verbal statement regarding the intention of their mind at the moment the words were spoken, the rules of evidence have been eviscerated. There is no need for a confidentiality requirement because all communications would be confidential. And that simply is not the what the rules say.

This is also what Colin misses in his musing. The court is not making a doctrinal judgment about a specific religion in abstract. The judge is doing so in an attempt to decide if the sworn statements of the defendant are credible. He is looking at the context in which the remarks are spoken. This is no different than if someone where to invoke a confidentially clause with their psychologist even though the words were spoken at a party, while the psychologist was drunk, and fifteen people were listening in. It is simply not a credible statement to any reasonable person to assume that such statements are, or should be, treated with the same dignity or solemnity as words spoken in a church under the seal of a confessional.

In writing all of this it shouldn’t be assumed that I was particularly happy with this part of the ruling.  In fact, I thought that in making the determination of whether the defendants statements were incredible the trial court could have done a lot more and have developed a more complete record. Indeed, it’s not even clear to me whether the trial court did in fact address the credibility of the statements directly or whether the appeals court is engaging in post hoc reasoning.  But I agree with the appeals court that either way there is enough evidence on the record to support such a conclusion and therefore I cannot say he abused his discretion.

Narratives don’t win elections. The reason for this is rooted basic human psychology. Stories appeal to people; Hollywood is good at stories; the main stream media is good at stories. Stories excite people and interest them. Stories are great for selling advertising, stories are great for enhancing a persons appeal. I am the last person to underestimate the power of stories in political and social discourse.

But what stories do not do is get people off of their couch, away from their computers, and into the voting booth. No story does that, has ever done that, is going to do that. There is a huge psychological difference between making a product appealing and what advertisers call “the buying decision”. Statistics show that 80% of the people a candidate personally meets will vote for that candidate. Why? For the same reason that you find in hard to turn down your friend when he knocks at your door and says lets go see a film. Personal interactions matter, what is often called “face time”.

Hillary had a narrative and an effective one; it got her 18 million votes. But Obama beat her precisely because he went out and earned it; he put together an organization–and by organization I mean a group of people–that worked their ass off to get out the vote. Does Obama have a narrative? Sure he does. But he didn’t lose himself it that narrative; he didn’t confuse that narrative with reality. He never believed that victory was his right or his generational due. It strikes me to this day that during the primaries and even the general election so far, the only person from any party or faction to visit my house was a Obama supporter, someone from my neighborhood. That is why Obama was able to overtake Hillary and why he won. He went door to door, house to house, in hand-to-hand combat, and he worked the system. He won the old fashioned way, he earned it.

There is nothing wrong with a story, nothing wrong with having a narrative. When the author over at The Confluence asks “So what have the Democrats and the Obama campaign done to rebut the [Republicans] narratives? I’ll have to get back to you on that.” that’s the good news. Because Obama isn’t going to beat McCain by fighting in the media, by reducing the fight to narrative vs narrative. Success in life doesn’t happen simply because you keep telling yourself you are a success. A wise person once said that, “There is only a fleeting difference between the trappings of sexual success and sexual success.” But as some Buddhists would say, “In the blink of an eye, you missed seeing.” The difference between the story and reality may only be fleeting, but in that fleet moment is an entire lifetime, an entire generation. Some of Hilliary’s supporters still can’t believe that in a blink of an eye, they missed seeing. But they did; that is reality.

First, the idea of The Narrative in politics is based upon the viewpoint that voters are more likely to vote for someone they can relate to or identify with rather than the policy or philosophical ideals the candidate represents. As a consequence, the candidate’s life story, their history, where they came, what they accomplished, who they are or are not connected too–all what we might call social or environmental facts–is the essence of a candidate. The political candidate represents a type of social mirror for the voter and the more accurately the mirror reflects the voter the more positive the image the voter will have of the candidate and thus the more likely they will vote for the candidate. In this sense, it represents the mainstreaming identity politics.

It is important to highlight that the concept of the narrative isn’t anything new, or even modern. A narrative is simply a story. The oldest and most well know narrative is the Bible. People have been using stories to bind together (and divide) socially since the dawn of time. But if that’s the case, what exactly does Peggy object too?

Contraposed to The Narrative is a vision of politics best labeled Power Politics. This perspective focuses on what can best be described as political deliverables. What distinguishes one candidate from another is precisely what they are going to do once in power. This vision doesn’t reject The Narrative in and of itself, but it insists that social factors are only useful insofar as they predict what a candidate will actually do while in office. A candidate whose life story seems out of touch with the policies they espouse might have a “credibility gap” but this disjunction would not itself be disqualifying.

What I believe Peggy is trying to say when she says, “The Narrative is bullshit. It’s not where Republican’s live.” is that Republicans voters are not motivated by identity politics but by the desire to get something done. Rather than focusing on who the Republicans are vs. the Democrats, McCain would have been better off stressing what they were going to do once in office vs. the Democrats. From this perspective, debates about the relative experience of Palin vs Obama miss the point. Even if the Republicans win, they at best occupy Democratic ground; they are not at home. The danger of The Narrative is that by picking someone who looks like us, we lose sight of what we want to do; indeed, we have no guarantee that the person who looks like us will even act like us when the chips are down.

Do I think Peggy is right? No and Yes. I think the claim that Republicans are not at home with identity politics is disingenuous. Republicans have always had their own stories to tell, and they have told them successfully and to good affect. But I am sympathetic to the notion that they best way to attack Obama is via Power Politics. He has a much more compelling identity than either of the Republican candidates and trying to go star power vs star power with him is a “mistake”. I put mistake in quotation marks because, as I said in my prior post on this topic, McCain does not have a lot of choices. When you are fighting the headwind he is fighting, anything can be viewed as a mistake. But when you are at the losing end of a lopsided score, and you simply can’t walk off the field, you have to do something. Perhaps The Narrative is a mistake, but what is McCain going to do, run on the Bush record? That would be an even bigger mistake.

So I can see where Peggy is coming from, but in the end her comments strike me as vain. Given the political environment, if McCain were the Dem and Obama the Rep I don’t think Obama could pull it out.