JoshBlogs will be the Official LiveBlogger for the 2009 Federalist Society National Lawyers Convention

I am pleased to announce that JoshBlogs will be the Official LiveBlogger for the 2009 Federalist Society National Lawyers Convention!

For anyone who cannot attend, I will be providing extensive coverage throughout the conference. You can look forward to:

  • Summaries of the events updated in real time, including photographs of the Panels.
  • YouTube Videos of cool discussions
  • Interviews with some of the luminaries in attendance
  • And More…

Check out my previous coverage of the Constitution in 2020 Conference for a glimpse of what to expect.

Please be sure to follow me on Twitter or subscribe to my RSS Feed RSS Feed to receive instant updates during the conference.

Also be sure to check out FantasySCOTUS.net. The Premier Supreme Court Fantasy League. Play like the 10th Justice.

Liveblog: Justice Scalia and Justice Breyer Discussion at University of Arizona

The debate begins Monday, October 26, at 2:30 p.m. EST at this link

I will be liveblogging the discussion here. My comments in blue.

A.S. Indicates Antonin Scalia. S.B. indicates Stephen Breyer

Moderated by NBC’s Pete Williams. I think the Arizona Public Media site is flooded right now. The video feed was inconsistent, and kept breaking, so I was not able to transcribe everything. Total NPR fail.

Justice Scalia is wearing a dark grey suit, a light blue shirt, with a dark tie. He is sitting comfortably in a leather chair, gesticulating like a Sicilian should.

Justice Breyer is wearing a cream colored suit, a blue and white striped shirt, and a red tie.

SB: Freedom of speech, Deprivation of Liberty, Cruel and Unusual do not explain themselves. Need to go back to find original intent. Do not know what people in 18th Century thought was cruel and unusual. The questions should be how do the values they enacted then apply to our circumstances today? SB thinks people are not in favor of execution for robbery, or executive a 13 year-old. When we look around the world, hardly anyone that executes a child, even over 12. Question becomes, where do we draw the line today, not where they drew the line in 18th century, in terms of the values they enacted in the constitution in the 18th century.

AS: Just because I would not practice execution does not mean it is unconstitutional. I would find pillorying constitutional and stupid. An enormous amount of things are constitutional and stupid. NINO FTW!

SB: The term is cruel and unusual. Over time, people have different idea of what is cruel.

-I apologize, the feed is very choppy, and it just dropped out, I will try to reconnect.

AS: Some of the provisions in the Bill of Rights according trial rights to the Defendant, many people do not think these provisions are as important as the Framers thought, including the right to trial by jury, which was abolished by U.K.

-Feed dropped again. I am actually attempting to predict what Scalia was saying. I bet he was about to go into a rant on Crawford.

-Video turns back on, and Breyer is talking about the trial of Sir Water Raleigh. I was right! Confrontation clause.

S.B. Scalia doesn’t have a clue what founders intended. SB looks at purposes of confrontation clause, what values they had in mind, and try to apply that as best as they can to circumstances of the present. Justice Scalia does not take this approach. If we didn’t take this approach, where would we be? With school segregation. At time they passed 14th amendment, and said people should be treated equally, schools were segregated. Oh harsh. When people passed 14th amendment, they were trying to create circumstances of equality where people would be brought into the society.

S.B.: Separate but equal did not work. Basic value underlying 14th amendment is a value saying no segregated schools. If that wasn’t clear in 1880′s, it was certainly clear in 1954.  Court did not follow details of what people think.

A.S. As for Brown, I would agree with Justice Harlan in Plessy v. Ferguson, as an originalist. We begin with the text that prohibited racial discrimination. Some states had segregated schools, but some states abolished segregated schools after 14th amendment. Don’t choose jurisprudence based on the method that produces the best result.

Q: About Heller.

AS: Heller was not a hard question. Not even close! (applause).One commentator during entire 19th century though 2nd amendment preserved right to join a militia. He acknowledged that he was the only one. Bad example for a case where it is difficult to find an answer.

SB: They didn’t apply it at that time to stop bazookas because bazookas did not exist.  My belief is that is a matter of degree, not a matter of kind. How much you put on basic value

SB: Talking about “no vehicles in the park.” Does that apply to a jeep? Great for a teacher’s discussion. You don’t know without knowing why the wrote the sign. True throughout law. Congress enacts a statute. Cannot kill members of the endangered species. If a red skill was not endangered 30 years ago, but today it is endangered. Didn’t quite get the gist bc the feed broke, but I think he was explaining that meanings of terms change.

Update: From Josh W. who called AZPM media Department, they were not expecting the event to be so popular and do not have the bandwidth.

More after the jump.

Read the rest of this entry »

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Reflections on Live Blogging. Great Success!

I just liveblogged my first conference and I really enjoyed it. Thanks to a link from Volokh, I received over 1,000 hits during the weekend, which is pretty cool.

One of the Yale Professors sitting behind me complemented my ability to type so quickly and still comprehend the conference. I suppose three years of law school multitasking have prepared me for paying attention to professors, vociferously typing, surfing the web, and adding commentary. Only thing I added was taking pictures, which was pretty cool. A special treat was that Yale’s ISP provides ESPN360.com, so I was able to watch Penn State route Illinois yesterday while I was liveblogging. Yet another not unwelcome, defeat for Chicago this week! Let’s hope bad things come in three for Chicago with respect to McDonald v. Chicago.

I will be attending the Federalist Society National Lawyers convention in November. I certainly will be there with my laptop. Unfortunately the Mayflower Hotel charges for Wi-Fi, but I will gladly pay to help spread the gospel.

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Pam Karlin tells it like it is. Call us Liberals, not Progressives. Candor at this conference is refreshing.

(this is a repost of Liveblog of Panel 8)

Karlan went on a fantastic monologue.Why can’t we refer to ourselves as liberals? Why cant we refer to ourselves as on the Left. Why are we calling the Justices swing justices. Why don’t we call them liberals? I’m with you Pam!

I’m reminded of the Ting Ting Song, That’s not my name!

Karlan commented that the Supreme Court is 4 liberals, one conservative, and the four horsemen of the apocalypse. LOL. Who’s who?

Karlan commented that Sotomayor will be an excellent Swing Justice. Great, another O’Connor.

No one on this panel is as far to the left as John Roberts or Clarence Thomas is to the right. I highly, highly, highly doubt this. We had a panelist today say he “missed traditional marxism.”

People always want to keep their options open. The aim of life is not to die with open options.

If we had won the 2000 election, we did win the 2000 election. If we would have gotten a different President, the cases would have come out differently. Brennan said 5 votes a theory any day. Karlan is much more politically savvy than the other pointy head academics. I hope Obama stays far away.

Gordon replies- Liberal no longer stands for New Deal policies. liberal has come to be a snooty intellectual elitist who looks down on my cultural values. Hard to rescue that term.

I think Karlin’s views are way to the Left, but the candor and honesty of her views is refreshing. She doesn’t seek to hide behind labels and veneers. I respect her for that. I also think she won’t make it through SCOTUS confirmation. Which is also good.

Pam Karlan
Pam Karlan
Posted in ACS, Liveblog. Comments Off

Pam Karlan Panel: Nostalgia for Traditional Marxism, Prosecute OLC Lawyers, How to Battle Conservatives

(this is a repost of Liveblog of Panel 8)

There were a few choice discussions on Panel 8 today. I am likely taking most of these statements after context, and without a doubt these statements were made largely tongue-in-cheek, but as probably the only conservative in the room, I still got a chuckle.

On Marxism

Robert Gordon

“I miss traditional Marxism.” I feel like breaking out and signing “Those were the Days” from All in the Family or maybe Back in the USSR. Gordon does oes not miss hectoring domineering, but he misses the fitting of points into overall structure, global capitalism. Miss importance of political inequality translates into political oligarchy, and political oligarchy dominates political decisions, e.g., organization of the Senate. Gives oligarchy extra advantages. Affects structures of the careers.

Pam Karlan

Pam Karlan interjected, “A kindler, Gentler marxism.” LOL.

On Prosecuting OLC Lawyers

Nan Aron

Over last 8 years we saw constitution shredded to bits. Lawyers at OLC wrote memos’s that authorize torture. Obama does not want to touch it. Cheney and Bush, government in exile, doing everything they can to campaign against investigation. People died from torture. We need to press Obama and Holder to expand investigation into not just CIA operatives that carried torture outside Jurisdiction, but “hold lawyers accountable.” Amazing that a group that doesn’t mention the text of the Constitution at any point in this 3 day conference is so afraid of it being “shredded.”

Gordon

Primary role of court to defend weak against the strong. Empathy to Republicans is awful thing, but torture is a wonderful thing, and anyone who tortured should get immunity.

Karlan- “It is bad to be empathetic and in favor of torture, because then you will hurt yourself.” Karlan FTW! She is snappy.

Battling Conservatives

Karlan

How to divide and conquer the consevatives?

Gordon

How to divide conservatives? Get people to see that they have a common interest against conservatives. Health care debate, promise of hope of universality by appeal to people who feel that something will be taken and redistributed to less worthy groups. E.g., “blacks, latinos, and immigrants.” Use divide and conquer movement against those using divide and conquer.

Constitution in 2020 Liveblog Panel 8- Roundtable-The Constitution in 2020: Getting There from Here

Panel Eight:
11:30 – 1:15 Roundtable–The Constitution in 2020: Getting There from Here
Moderator:  Pam Karlan, Stanford Law School
Panelists:   Debo Adegbile, NAACP; Marvin Ammori, Free Press/ University of Nebraska-Lincoln College of Law; Nan Aron, Alliance for Justice; Robert Gordon, Yale Law School; and Tom Saenz, MALDEF

My comments in blue.

Pam Karlan

Rather than allowing opening statements, Karlan is asking questions and creating a discussion. AND, questions only from students, not from Professors. Sadly, Professor Ackerman is not in the room for this golden opportunity. However, the panelists still manage to give lengthy answers to the questions that curiously mirror an opening statement.

Robert Gordon

“I miss traditional Marxism.” I feel like breaking out and signing “Those were the Days” from All in the Family or maybe Back in the USSR. He does not miss hectoring domineering, but he misses the fitting of points into overall structure, global capitalism. Miss importance of political inequality translates into political oligarchy, and political oligarchy dominates political decisions, e.g., organization of the Senate. Gives oligarchy extra advantages. Affects structures of the careers.

Pam Karlan

“A kindler, Gentler marxism.” LOL.

Tom Saenz

Reviving privileges or immunities is troublesome because it is limited to citizens. Kinda ironic that a guy with the last name of Saenz is diminishing priviileges or immunities, in light of Justice Thomas’s fantastic dissent in Saenz v. Roe. He also needs to check out Bruce Ackerman’s theory of “citizenship as a practice” so that aliens would be able to qualify for constructive citizenship, and thus receive the privileges or immunities of citizenship.

We still have a discriminatory immigration policy. US only country that assumes that demands for immigrants will be same form every country. Latin American and Asian countries face waiting periods of over a decade, while European countries are favored. We should introduce constitutional norms and values.

Discussing for guest-worker program. Guest worker programs separate workers from their families. IF people have right” (quotes are mine) to live with their families, immigration reform would be different.

Karlan remarked she is sitting in the room where she studied Constitutional Law from Robert Bork, and segues into Judicial Nomination Process. LOL.

Nan Aron

“I’ll be very brief, I hope.” Such a typical progressive academic introduction, lol.

Confirmations are best opportunity to articulate a progressive view of the Constitution.

“With Sotomayor you would have thought it was John Roberts’s hearing.” She was muzzled by the White House, she did not hear about her background, how her experience srelated to the type of Judge she would be, she did not mention the Constitution. Senate Democrats are to blame. They had all opportunities. The White House should have allowed Sotomayor to articulate the liberal vision ad progressive values of the Constitution.

We need:

  1. Progressive candidate to the Supreme Court
  2. Explain how dangerous the Roberts Court has been. Roberts Court has detonated bombs in voting rights, civil rights, dismantling campaign finance rights laws, eroding rights of defendant
  3. We have to mobilize. Last mobilization was for Bork. We need a mobilization for a progressive SCOTUS and Courts of Appeals seat. Vacancy on 2nd circuit. Put a progressive.
  4. If Constitution is to work, we have to stand up for it.

Over last 8 years we saw constitution shredded to bits. Lawyers at OLC wrote memos’s that authorize torture. Obama does not want to touch it. Cheney and Bush, government in exile, doing everything they can to campaign against investigation. People died from torture. We need to press Obama and Holder to expand investigation into not just CIA operatives that carried torture outside Jurisdiction, but “hold lawyers accountable.” Amazing that a group that doesn’t mention the text of the Constitution at any point in this 3 day conference is so afraid of it being “shredded.”

Amoori

A big public fight in the confirmation process could be a teaching moment. Fights should be in dark terms. Define liberal vs. conservative.

Karlan

How to divide and conquer the consevatives?

Gordon

How to divide conservatives? Get people to see that they have a common interest against conservatives. Health care debate, promise of hope of universality by appeal to people who feel that something will be taken and redistributed to less worthy groups. E.g., “blacks, latinos, and immigrants.”

Use divide and conquer movement against those using divide and conquer.

Bottom third of country gets no political representation at all because other side so successful in demonizing it as unworthy.

Adegbile

Academics should write simplified versions of scholarly literature for magazines and mass consumption. Academics see tension, due to the purity and complexity of the work.

If Academics just talk amongst themselves, they are going to lose the battle. Debo is exactly right. I made this exact point my first day. This conference has been incestuous. Academics talking to other academics achieve little. I realize the irony of criticizing the ivory tower while sitting in a law school that resembles a medieval castle, but this point is dead on.

Ammori

To organize people around media issues, focus on broader issues. Everyone should have access to Internet, media too consolidated, if you don’t like what you see on TV, there is something wrong.

Karlan

Privileges or immunities deals with citizens. But scholars make up citizens doesn’t mean what it actually means. This is a jab at Ackerman, among others.

Saenz

“Appalling” that Yale Law School has not hired a single Latina Professor. Oh snap! I’m sitting right next to Dean Post. He didn’t even flinch.

Karlan on Liberalism and the Supreme Court

Why can’t we refer to ourselves as liberals? Why cant we refer to ourselves as on the Left. Why are we calling the Justices swing justices. Why don’t we call them liberals? I’m with you Pam!

Supreme Court is 4 liberals, one conservative, and the four horsemen of the apocalypse. LOL

Sotomayor will be an excellent Swing Justice. Great, another O’Connor.

Debo Adegbile is the Thurgood Marshall of his generation. Lofty praise. He won NAMUDNO

No one on this panel is as far to the left as John Roberts or Clarence Thomas is to the right.

Karlan

If we had won the 2000 election, we did win the 2000 election. If we would have gotten a different President, the cases would have come out differently. Brennan said 5 votes a theory any day. Karlan is much more politically savvy than the other pointy head academics. I hope Obama stays far away.

Gordon

Federal courts are currently obstructive to advance civil rights. We do not have the Warren Court. Best bet is to keep them at bey. Senators Whitehouse and Franken did best job by exploring radicalism of conservative court. “Roberts and Alito are trained as ideological – in revolutionary movement.” They are “sleeper cells that are activated” as though they are defenders of conservative values. They are radicals who want to bring about radical transformation of the courts. The Senate shoudl “demonize” these Judges. Focus on Dormant commerce clause and preemption cases.

Primary role of court to defend weak against the strong. Empathy to Republicans is awful thing, but torture is a wonderful thing, and anyone who tortured should get immunity.

Karlan- It is bad to be empathetic and in favor of torture, because then you will hurt yourself. Karlan FTW! She is snappy.

Gordon- Liberal no longer stands for New Deal policies. liberal has come to be a snooty intellectual elitist who looks down on my cultural values.

Saenz- Being a “Wise Latina” may actually make you a better Justice. I knew Sotomayor believes this and many on her side do as well. I don’t agree, but I think it is disingenuous of her to back away from those statements.

The left does not have a reliable test to determine progressiveness of judicial candidate.

The text of the  constitution is at a level of generality that permits us to do a lot. Change how it is interpreted, and how everyone views the values it embodies. But why bother talking about the text if it is so general?

Response to originalism: vast majority of us, families came to this country more recently than the people who wrote it.

Discussion of voting with feet. Immigrants vote with their feet. Immigrants have a sense of what is in the Constitution, and this governs the values of how we should interpret it. This is just as legitimate as what founding fathers believe.

Descendants of founding fathers very small population today.

Tom

Tom Saenz, Debo Adegbile, Pam Karlan, Robert Gordon, Marvin Ammori, Nan Aron

Constitution in 2020 Liveblog Panel 7- Mobilization

Panel Seven:
9:30 – 11:15 Roundtable:  Mobilization
Moderator:  William Eskridge, Yale Law School
Panelists:  Addisu Demissie, Organizing for America; Marshall Ganz, Kennedy School of Government, Harvard; Judy Scott, SEIU, Michale Wishnie, Yale

Caroline Frederickson- Executive Director ACS

Thanked members of ACS, Panelists, and Organizers.

Conservatives have hijacked the constitutional process through strict construction and original meaning. It’s good to feel the love. Scholars have shed light on how constitution should be interpreted. Principels and values founders embodied in this document. Significant progress has been made over past 200 years. Still much work to be done.

Caroline Frederickson

Caroline Frederickson

Wiliam Eskridge

Like interpretation, these panels are dynamic. Yuk Yuk Yuk.

Mobilization. Main example- gay rights/gay marriage movement. Shows aspects of constitutional mobilization- huge mistakes, moderate successes. Mobilization in Vermont being done locally, state-wide, and nationally. Mobilization protected against right-wing retribution at Polls. Started with mobilization of small meetings (5-10 ppl).

Olson-Boises Law Suit

Bill Eskridge praising Ted Olson for the Olson-Boises law suit. Olson came out of “conservative closet” to favor SSM. Best thing to do with Olson-Boises law suit. LAMBDA denied intervention in lawsuit.

Eskridge’s strategery- Delay law suit as long as possible, and revoke Prop 8 in 2012. Revoking Prop 8 would moot the lawsuit. If lawsuit proceeds to 9th and “finds” Constitutional Right. CA9 has poor record with SCOTUS. Olson thinks he can get Justice Kennedy’s vote. Eskridge not sure if the movement has Breyer and Ginsburg. If not mooted before 20102, not optimistic SCOTUS will find right.

Winning constitutional arguments is not end-all of social movements. Yale Law School should not fetishize SCOTUS. We should reject it. Best thing to energize LGBT movement and straight allies was Bowers v. Hardwick.

The more gay marriage is talked about, the better it is to talk about. Eskridge has no doubt he is right. SSM Marriage good for the children, for neighbors, for states, good for jobs, good for America.

Older generations set on LGBT issues. Identity tied to traditional understanding of marriage. Progressives ought to understand hat.

Marshall Ganz

Calling, craft, and career with respect to mobilization. Who, how, and with whom, do you do the work of mobilization. Civil rights all about ending racism. Equates civil rights movement to exodus story told during Passover.

Deeper inequality driving racism was inequality of power. African-American’s couldn’t vote, unions out of power. What to do? Some thought you ask people in Washington for some of their power. If change comes from up high, it can be taken away easily, because power inequality still exists. Example, Montogmery bus strike. People had stake, could withdraw their bus fare.

To affect meaningful change, must engage resources of those who have an interest. Need skilled leadership.

While he thought racism was an exception in America, became an example in America.

Keys for mobilization

  1. Translate power into action through narratives
  2. Bringing people together around common interest through relationship building
  3. Structuring organizations
  4. Strategize- transform what you have into what you need
  5. Measurable results

Talking about Obama, politics of hope, change.

Rabbi Hillel. “If I am not for myself, who will be for me. If I am for myself alone, who am I? If not now, when.”

Addisu Demissie

Political director for Organizing for America. It seems Organization for America was formally Obama for America. Is he a community organizer?

Get out the vote director for Obama in Ohio.

Hard for progressives to admit they are in power and to use their leverage of power. Really? Didn’t Obama make his Presidential seal before he was President? Didn’t Nancy Pelosi start measuring the drapes for her Speaker Office in October 2006?

Change made through citizen contact, with neighbors talking to one another. Difference between mobilizing and organizing. Mobilizing- fight you are in. Organizing- fight you are in, fight you will be in the future. He predicts the Left will win on health care. But there is always some issue to bring people in. Organization building will use health care, 2010, energy, etc. Can’t get totally submerged in the fight you are in. Need to consider fight you will be in next.

Organization building tips

  1. Train leaders to take charge of their communities. Goal to train leader in every community in this country.
  2. Permanent structure-Neighborhood team leader-community organizer model. For every group of precincts, a neighborhood team leader (NTL) to organize. That organizer reports to a community organizer that manages neighborhood team leaders. The community organizer linked to higher-ups. Don’t do nitty-gritty, more managerial. Not about any particular issue. It is about empowering them.
  3. Meeting- getting face to face with people. Just like those helpful ACORN tax advisers in Baltimore!
  4. Reporting. Strict, structured reporting system to track everyone from volunteers up to amangers

Need to creates sustainable organization that lasts beyond the current fight. Structure is important, don’t just focus on substance. 2/3 of fight is setting agenda and framing issue. Get excited about small victories.

Judy Scott

Economic Justice. Concentration of wealth, very few peopel who speak for bottom third. What is mobilization structure to make those voices heard? Not just individual rights, but collective rights and collective action.

Labor law has limited concepts of organization to bargaining unit. Look to issues of global unions.

Unions need to be:

  1. Global- mulinational corporations growing at a fast rate.  Nation states incapable of dealing with multinational labor conditions. Need structures to deal with international IP rights, WTO for international trade. Need structure to enforce labors beyond borders.
  2. National level. Change that work campaign. Need to extend to 12 states with much density. Labor movement density was 35% in 1950s to 7% today. This is a threat to Democracy.  Working with farmer unions, consumer leagues, around issue of health care reform. Showing up at town hall meetings. Like this SEIU member who roughed up a Town Hall attendee? Agitate for improvement of American families.

Don’t just think about filing grievances and arbitrations, but focus on organizing in community and mobilizing.

Mike Winshnie

Thanks everyone for giving up right to leisure to come here on Sunday. Apparently the right to leisure is declared in the fundamental declaration of human rights. I suppose I generally waive this right.

Progressives acheive social reform by supporting a particular social movement, and translate movement values to ways courts, legislatures, and agencies can understand. Lawyers are often crucial in this interpreting function.

In a few generations, we will look back at modern immigration law as de jure subjugation, similar to Jim Crow Laws.

There is a hope that “the constitution will jsut stay out of the way” because it hurts more than it helps. So the Constitution in 2020 is should just hide? He’s quoting Saul Alinsky now.


Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)

Judy Scott, Marshall Ganz, Bill Eskridge, Mike Wishnie, Addisu Demissie (Left to Right)


Posted in ACS, Constitution in 2020, Liveblog. Comments Off
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