• Bev,

    I love you, Richard and Ellie so much, for all you have done here. As Marcy said, this has been week in, week out, year in, year out, one of the consistent bright spots on the internet. And as good of thing as FDL has ever done. You are a credit to all that is good.

    Thank you for everything, and I truly hope this is only temporary and Book Salon will be back.

  • Yes, she has! Been saying it for a while. Along with a couple of other of us peanuts in the gallery.

  • They usually go nowhere because of ability of the govt. to intervene and prosecute it on their own and they whitewash it or, in the instances where they let the private relator prosecute the action it is usually on cases that are very difficult to win or that the govt is non-cooperative in producing information for and cooperating with discovery. The net effect is there are few that are truly as successful as their underlying facts indicate should be successful.

  • I do not know if you are willing to get into this or not, I think it is within parameters that are acceptable, but… there has been much ado about Holder and/or Obama saying they have no intention of sending you and/or “journalists doing their job to jail”. That aside, there is a whole lot of grief that the court, upon application by the government could impose in the way of fines, accruing daily, in relation to a contempt order that is totally separate from jail. Has there been threat of that and/or are you concerned about that possibility?

  • Hi Jim, and welcome to FDL Book Salon. You stated above that:

    “Prior to 9/11, the United States had traditionally dealt with acts of terrorism as criminal, or law enforcement matters.”

    Agree this was mostly the case. How have the, for lack of a better term, neocons and profiteers been able to sell this paradigm so completely to the public, and what do you think could be done to bring much of the action back within the traditional criminal framework?

  • Thank you to each and every one of you. This has been immense fun and intellectual stimulation.

    Thank you especially to Dr. Erwin Chemerinsky and Dahlia Lithwick, both wonderful friends and people.

    Lastly, GO BUY THIS BOOK! It is truly remarkable. And it is truly one that, if you care about the courts, you really want to but and read.

    Thank you one and all!

  • I see Dahlia is on to the death penalty, and as our time may be waning, I think that is a great subject. I will however, in case anyone wants to pick up, say that this is one of my questions about the “RBG should resign” argument.

    Where a president picks on the ideological spectrum is INCREDIBLY important, whether for populating District Courts, Circuit Courts, or, most obviously, the Supreme Court.

    Obama has picked a few good judges. And Sotomayor was, and is, excellent. He has, however, by and large picked milquetoast centrist uninspiring jurists that have done not nearly enough to reset the needle from the Bush/Cheney regime. I mean, Obama fought tooth and nail for Hamilton, and not for Liu.

    What, in the world, makes anybody think Obama would ever nominate a true equal replacement for RBG? That is just not in Obama’s DNA.

  • Well, I agree as to the relentless interjection of standing, immunity, qualified immunity, Twombly and even more heinous progeny, etc. I used to have a decent §1983 practice. And was fairly gutsy about taking tough cases. But that was in the 90′s. How can a lawyer that has a duty to his partners and/or family go out on those limbs now?

    You are a better man than me if you can answer.

  • Amazing that JGR did not so think in the AIJA portion. But that is an argument for another day.

  • Erwin, maybe to turn this discussion, just for one moment in a direction that, I know for a fact, many here focus on, let us talk a bit about privacy, surveillance, the Constitution and 4th Amendment thereto, and where this country will go forward from here.

    The details of any, much less all, of the various omniscient dragnet surveillance programs the US Government is running on its citizens, are grand in scope and all encompassing in design. Whether it be upholding more specific (untested) blanket assertions by the government as to individual programs that hoover our life’s data, or whether it be the out of control belligerent assertion of “state secrets” to cover up malevolent, if not blatantly illegal, acts by the government, where do you think we stand?

    Where can, and SHOULD, the courts – notably the Supreme Court – stand?

    Can the Smith v. Maryland third party doctrine hold?

  • Well, as you might remember, I had huge issue with Jonathan Cohn, Beutler and a host of others on “our side” saying the entire historical legitimacy of the Supreme Court rode on the ACA/NFIB decision. I thought it some of the most harmful ands damaging demagoguery imaginable, and fit for the proverbial opponents, and not us. I was, alas, in the minority there. But i am still ashamed liberals engaged in such craven hyperbole.

  • Dean Chemerinsky – It was mentioned above in kind of passing, but let us talk for a moment about the “Marriage Equality Cases”.

    Do you have a preference for which case/case set – out of which Circuit – becomes the stalking horse for the Supreme Court? And, if so, why?

  • Oh, I agree with all that completely. Especially on the 5th cases. Taken overall, as contrary as Scalia has been, I am just not sure - in this area - he is really worse than Breyer, and arguably better on Law + Order overall. Alito is horrible; Kagan has shown not much promise.

  • But, honestly, is that really THAT new? SCOTUS justices have been pulling facts and thought out of their nether regions for as long as they have existed. So we now get to bust them closer to the record with amici baloney…is that really indicative of a new paradigm?

  • Erwin, when it comes to criminal due process, three Amendments have been under attack for as long as i have been practicing in the field – i.e. nearly 30 years. The Fourth, Fifth and Sixth. Although the line up differs a de minimis level on different cases, it does not strike me that this is an area characterized by a strict “partisan divide”.

    In fact, I would hazard to say that the progressive scourge, Scalia, has been every bit as good on these issues, if not often better, than Justice Breyer and, recently, Justice Kagan.

    To what do you attribute this curious dichotomy, and how can we look to make fundamental due process once again a true liberal value?

  • Thank you for this question Dahlia!

  • Oh, wait, you answered that A29 to CTuttle I now see! Very good.

    And can I say, merit selection, even of Supreme Court judges works VERY well here.

  • Regarding merit selection of judges. This is a program we have had here in the (otherwise often backwards) state of AZ for a long time as to Court of Appeals Judges, Supreme Court Judges and, as to the two biggest counties, Maricopa and Pima, Superior level trial court judges. It has been a ringing success.

    But how would that translate as to SCOTUS, can you sketch that out for us?

  • Yes, I am as positive as Erwin is about the need for cameras but, sadly, as negative as you as to the likelihood.

    And, for the record, so far this has not been a partisan affair, there are stubborn libs too.

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