I consider it a good thing that fear-driven people like Wittes (and Newt Gingrich: "I think people should be afraid") are now becoming more candid about how "terrified" they are and how that drives what they advocate, but still: shouldn't a Brookings Scholar and self-described expert in legal matters know what the presidential oath and the Constitution actually say? As this non-Brookings-sch0lar blogger immediately pointed out, Wittes' description of the presidential oath is blatantly false:

Yet another "public intellectual" is allowed to get away with mischaracterizing the responsibilities of the President of the United States. . . .
Barack Obama did not swear an oath to "protect the country." He swore an oath to protect the principles upon which the country was founded and the document in which those principles are enshrined:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Considering that Wittes' assertion is central to the discussion of whether it is appropriate to dismantle our constitutional legal framework in the name of safety and security, one might expect the New York Times to provide a clarification. One might even expect the paper to engage Mr. Wittes in a discussion about the distinction between "protecting the country" and protecting the constitution. But the NYT does neither. It simply lets the false assertion stand as a statement of fact.

The claim that the President takes an oath to "defend the country" -- as though he's some sort of National Security Daddy-Monarch whose supreme, overriding duty is to Keep Us Safe -- is one of the most basic, common and destructive myths in our discourse. That was the warped mindset that lay at the heart of the Bush/Cheney/Addington/Yoo model of the presidency -- that everything, including limitations on presidential powers and the Constitution itself, is subordinated to the sole mandate that the President do everything possible -- whatever is necessary -- to Protect Us All.

This deceitful description of the Presidentíal oath -- just like the compulsion for civilians to refer to the President as "our Commander-in-Chief" even though he is no such thing to civilians -- reflects the modern fetishization of the President as Supreme Military Protector, who has few other duties that matter, if he has any, other than single-handedly protecting us from danger. Even our so-called "legal experts" now blatantly misquote the oath to which the Constitution requires the President to swear, all in order to justify even the most extreme powers, such as imprisoning people potentially for life with no trial and no charges (he swore to protect the country from dangers and so he must do whatever is necessary to accomplish that).

jerseyhoya wrote:I care about the NY mayoral race and get probably 80% of my updates from you. Please keep posting about it.

Werthless wrote:

drsmooth wrote:Chief Justice susceptible to confusion by small sample size? This gives me little confidence:

NY Times 5/26 When the Justices Ask Questions, Be Prepared to Lose the Case A few years ago, a second-year law student at Georgetown unlocked the secret to predicting which side will win a case in the Supreme Court based on how the argument went. Her theory has been tested and endorsed by Chief Justice John G. Roberts Jr., and has been confirmed by elaborate studies from teams of professors.

“The bottom line, as simple as it sounds,” said the student, Sarah Levien Shullman, who is now a litigation associate at a law firm in Florida, “is that the party that gets the most questions is likely to lose.”

Chief Justice Roberts heard about Ms. Shullman’s study while he was still a federal appeals court judge, and he decided to test its conclusion for himself. So he picked 14 cases each from the terms that started in October 1980 and October 2003, and he started counting.

“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.

Chief Justice Roberts had argued 39 cases in the Supreme Court, and he was considered one of the leading appellate advocates of his generation. He sounded both fascinated and a little deflated by the results of his experiment. “The secret to successful advocacy,” he said playfully, “is simply to get the court to ask your opponent more questions.”

Cool article, but 24/28 gives you good evidence that the number of questions does matter (Chi square=8.2, p<.01).

TenuredVulture wrote:Forget Beck, but is that the best Limbaugh has? I mean this isn't a surprise pick, and presumably there's some actual liberal decision or writing or something he should have ready.

I suppose there's the case with the firefighters. But she saved baseball from the owners.

There's apparently not much on social issues.

What I like about the pick is that she's knowledge about securities and finance law, and that's likely to be a pretty important issue going forward.

drsmooth wrote:

Werthless wrote:

drsmooth wrote:Chief Justice susceptible to confusion by small sample size? This gives me little confidence:

NY Times 5/26 When the Justices Ask Questions, Be Prepared to Lose the Case ...
“The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate,” he told the Supreme Court Historical Society in 2004.[/i]
...

Cool article, but 24/28 gives you good evidence that the number of questions does matter (Chi square=8.2, p<.01).

That's basically what I was looking for. It just seemed to me that there could be considerable year to year variation, and things like random questions ("can you hear me ok?") that might mess things up (but the latter issue was addressed in the article).

Seems like an interesting variation on the time-honored interview tip: if the interviewer is doing most of the talking, you're in good shape - unless s/he's a Sup Ct justice.

dajafi wrote:asshat faceoff (SCOTUS edition): Glenn Beck vs. Rush Limbaugh!

Actually, I think Rush wins--it's almost impossible to be more of an asshat than he is. Beck, however, might be the single dumbest individual in public life.

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." -- Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

Werthless wrote:

dajafi wrote:asshat faceoff (SCOTUS edition): Glenn Beck vs. Rush Limbaugh!

Actually, I think Rush wins--it's almost impossible to be more of an asshat than he is. Beck, however, might be the single dumbest individual in public life.

This stuff is embarrassing to read.

Believing in limited government does not mean loathing all government; in fact, it means making a smaller government more effective, in part by limiting its ambitions to what it can effectively do that no other body can. The resilience of the anti-government thread - even in its least articulate "tea-partying" variety - and the cogency of this critique in the long-term of Obama's pragmatic liberalism make a small government Republicanism hard to kill, however much some would like it.
...
If you cannot cut taxes, and you will not make a dent on entitlements, then the next big ticket item is defense. My view is that a successful future Republicanism will begin to urge a dismantling of the empire and a limiting of the war on terror just as it will do in the war on drugs.

jerseyhoya wrote:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." -- Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

http://www.nationaljournal.com/njmagazine/or_20090523_2724.php

I imagine this is what Rush is talking about.

jerseyhoya wrote:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life." -- Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

http://www.nationaljournal.com/njmagazine/or_20090523_2724.php

I imagine this is what Rush is talking about.

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.... I am... not so sure that I agree with the statement. First... there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The full text of the speech, as published in the Berkeley La Raza Law Journal in 2002, is available on The New York Times website. (It says that the speech was in 2002; I've read elsewhere that it was October 2001.)

To some extent, Sotomayor's point was an unexceptionable description of the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear. As she detailed, for example, some studies suggest that female judges tend to have different voting patterns than males on issues including sex discrimination.

I also share Sotomayor's view that presidents should seek more ethnic and gender diversity on the bench, so that members of historically excluded groups can see people like themselves in important positions and because collegial bodies tend to act more wisely when informed by a diversity of experiences.

But do we want a new justice who comes close to stereotyping white males as (on average) inferior beings? And who seems to speak with more passion about her ethnicity and gender than about the ideal of impartiality?