A Bit of Borking in Progress

The Bork nomination is much talked about and comes up a number of times in our reading. For many commentators, this nomination was the beginning of a steady politicization of judicial nominations but as our reading shows, this is not the case. Nominations have always been political in nature. Nonetheless, the Bork nomination was quite combative and many key players are still around (such as Joe Biden). I wasn't able to find many clips from the Bork hearings but due to Kennedy's recent death, this famous interchange from the hearings was posted. The article which forms the basis for many of the criticisms Kennedy lists here is “Neutral Principles and Some First Amendment Problems” (47 INDIANA LAW JOURNAL 1971) which remains a frequently read and cited argument about not only the First Amendment but a wide range of constitutional rights and the reach of Supreme Court authority in interpreting privacy and other liberties. Bork spent much of the hearing trying to get out from under his arguments in this piece, suggesting that his thinking had changed or that the article no longer reflected his views on all issues. Bork is one of the best examples of a nominee who was considered well qualified but was successfully opposed on ideological grounds, including 6 republican votes against his confirmation.

Supreme Court confirmation hearings

We may take a look at several of these in class to help with our discussion, but they are all interesting and give a flavor for what these hearings look like.

My favorite, because it is funny, is listening to Justice Sotomayor explain nunchuks to Senator Hatch. This came up because she had ruled in favor of a state law regulating nunchuks and Senator Hatch was trying to get a sense of her stance on the Second Amendment.


In this clip, Senator Sessions asks about Sotomayor's statements regarding her life experiences and how they affect judging. Side note: Sessions was nominated to the federal bench by Ronald Reagan and was not confirmed by the then Republican majority Judiciary committee due to questions about, as journalists tend to put it, racial insensitivity in his conduct as a US Attorney.


And in this last clip, which cannot be embedded, we see Sotomayor's opening statement. There are many other clips available on youtube if you click over from any of these three.

Political Science and the 2008 election

Yesterday I complained that very few political scientists, the people who actually study nominations and confirmations, were invited onto television coverage of the Sotomayor hearings. Since not too many of you had watched that coverage, I thought another example of the same phenomenon would be helpful. During the 2008 election, we also saw very few political scientists interviewed about the campaign. This campaign, like all campaigns, was covered as a kind of breathless serial narrative on the 24 hour news cycle. Reporters expected us to believe that any given day's news was the crucial turning point in the election - that Obama's bitter Pennsylvanians "clinging to guns" comments would throw the election to McCain, or McCain's embarrassing "the fundamentals of the economy are strong" comment after Lehman Brothers collapsed was the end of his campaign. Coverage of the Palin pick swung both ways - first the press told us that she was generating so much excitement that Obama was doomed, then that her actual campaign trail performance cost him the election. In reality, none of these things probably affected the outcome of the election. Obama won 53% of the vote, *exactly* the average percentage predicted by political science models long before the election. In fact, if memory serves, pretty close to the percentage predicted before the nominees were even chosen.

What does the election have to do with Supreme Court nominations? This piece about the 2008 election by Gelman and Sides lays out pretty nicely the case for political science over pundit commentary that I was trying to make yesterday. What they say about the election pretty much covers Supreme Court nominations as well. That Sotomayor would be confirmed was a foregone conclusion from the moment she was nominated (barring some scandal coming to light) but we got months of excited hyperventilating press commentary (much of it from "experts" who didn't know squat) about whether she would or wouldn't confirmed.

Press coverage of major Supreme Court cases is often pretty good on the outcomes - reporters can count liberal and conservative justices just as well as anyone and predict votes. We'll look at some of this coverage during the term as the Court begins to hear oral arguments in October and can discuss whether they are covering the whole context of important cases as well as they should.

By the way, Gelman and Sides write the Monkey Cage political science blog - it focuses mostly on American politics (with a bit of baseball) but the issues they take up are interesting, and they present recent academic research in a very accessible way.

Welcome back

Things are cooking for the start of Fall semester 2009. I've started updating the blogroll to the right, the syllabuses are finished, the reserve readings are on file at the library, and I will be posting new content relevant to all of my fall courses and activities at this location. Stay tuned for more.

John Yoo's Torture memo declassified

Many of you are working on papers related to torture and will probably find it helpful to take a look at the newly declassified John Yoo torture memo from 2003. We have known that these memos existed, but had not seen the text itself. It is now available.

Washington Post

New York Times

Balkinization

Text of Memo Part I

Text of Memo Part II

The position of those inside the DoD who disagreed with the Yoo (and final) torture rules.

FCC auction of spectrum

The FCC has now completed the auction of the part of the broadcast spectrum that will be vacated when the broadcast television stations stop broadcasting analog signals next February. This is the 700 mhz slice of the spectrum and it has potential to be useful for many services such as wireless broadband internet. One of the biggest questions about this auction, related to the concerns in Anarchist in the Library, is what forms of control will be imposed over this important slice of spectrum? Who will control it (well, we know the answer to that now) and to what end? How will access to the new networks be granted? Will it be on a neutral, open basis or will it be tightly controlled and hierarchical? If you are interested in following up on this, here are some places to start.

In 2005 Matthew Yglesias criticized US policy on broadband as a failure compared to the policies in other countries. Much of the pessimistic projection of the future in his article has now come to pass.

Gizmodo, an entertaining technology site, has an overview of the 700 mhz auction, who the players were and what they hope to get out of the billions they have agreed to pay for control over slices of the airwaves.

It turns out that Verizon and AT&T won most of the auction, with Dish Network and a few others also taking a few pieces. However, things proceeded in a way that rules requiring that part of the spectrum be treated as an open platform kicked in.

Nevertheless, the auction was seen as a victory for Google, since the bidding was high enough to trigger the "open-platform" rules it requested for the nationwide airwaves eventually won by Verizon.

Google called it a victory for American consumers. "Consumers soon should begin enjoying new, Internet-like freedom to get the most out of their mobile phones and other wireless devices," said a statement from Google lawyers Richard Whitt and Joseph Faber.

Time will tell what this "open-platform" will actually look like in practice, whether it will allow for innovation at the ends of the network that isn't controlled by Verizon, or whether the 700 mhz block of spectrum which had been "the public airwaves" regulated by government licensing procedures in the public interest (an admittedly flawed regulatory regime to be sure) have simply been privatized to be regulated by Verizon licensing procedures.

BSG Top Ten list

OK - not at all related to class, but now that I have some of you hooked on this show, here are a couple of Battlestar Galactica items:

BSG Top Ten List on Letterman




BSG Season 4 preview trailer (spoiler alert, obviously)