November 01, 2005

Alito--Quick Takes

B.D. had been leaning Luttig, but I think Alito is a very good choice. And I think he'll make it, though it won't be as easy as Roberts--not least because of the perceived similarities to Scalia (a somewhat superficial and overly simplistic view, of course). If Miers was a D- (at best); Alito is solidly in the 'A' range. I've beaten up on Bush in this space a good bit of late--but Roberts, Bernanke and Alito are all very solid nominations. He deserves some kudos on this score. Pity we had to go through the Miers nightmare...

The Volokh collective has much more. And more here too.

Money quotes:

Judge Alito's jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said. In cases involving the great issues of the day - abortion, the death penalty and the separation of church and state - Judge Alito has typically taken the conservative side.

Yet he has not flaunted his political views inside or outside the courthouse. Friends say Judge Alito seems to have inherited a distaste for shows of ideology from his father, an Italian immigrant who became research director for the New Jersey Legislature and had to rigorously avoid partisanship.

Judge Alito won prestigious academic prizes while at Princeton and Yale Law School, where he stood out for his conservative views, which were in the minority, as well as for his civility in engaging ideological opponents.

"The notion that he's an extreme conservative is wrong," said Mark Dwyer, Judge Alito's fellow student at Princeton and roommate at Yale. "Sam is conservative because he's a straightforward believer in judicial restraint - that is, a judge's personal views should not dictate the outcome of the case."

Even in the Reagan Justice Department, where a palpable sense of conservative triumph was in the air, "I never got the sense that he thought about legal issues in an ideological way," said Mr. Manning, now a professor at Harvard Law School.

But Walter F. Murphy, an emeritus professor at Princeton who supervised Judge Alito's undergraduate thesis on the Italian Constitutional Court and has kept up with him in the years since, said his former student believed in ruling according to an "original understanding" of the Constitution.

The phrase is generally used to describe legal theorists, like Justice Antonin Scalia, who believe judges should try to figure out what the Constitution's drafters would have ruled in contemporary cases.

Friends say references to Judge Alito as "Scalito," a name meant to suggest that he is a clone of Justice Scalia, the court's most robust conservative, are off the mark and demeaning.

Like Justice Scalia, Judge Alito is an Italian-American from Trenton, whose jurisprudence is indisputably conservative. But while Justice Scalia is known for his caustic writing and argumentative manner, Judge Alito is described by clerks, lawyers and former schoolmates as a man who takes extraordinary care to be gentle with others and is quick to help a struggling lawyer arguing before his court.

"He's got a powerful intellectual humility, is the way I'd put it," said Clark Lombardi, who clerked for Judge Alito in 1999 and 2000 on the United States Court of Appeals for the Third Circuit, the judge's current seat.

I think most of the Gang of 14 will be with this guy. And rightly so.

Posted by Gregory at November 1, 2005 03:33 AM | TrackBack (2)
Comments

I agree that Alito looks to the framers to see how to rule....and that's the problem.

See the framers had this thing about considering women and children little more than chattel, thought that slavery (and racial discrimination) were perfectly acceptable, and generally assumed that the government should favor the interests of the monied elite. Alito's rulings reflect this neanderthalian viewpoint.

And, of course, like most conservatives, while seeking to restrain the power of the federal government in a manner consistent with the "framers" intent on domestic issues, he ignores the framers intent when it comes to "international entanglements", and give far more deference to the power of the executive branch than was ever intended by the framers.

On a "liberal" court, Alito would be a breath of fresh air --- but on an increasingly ideologically conservative court, he's likely to be little more than what his nickname implies (a 'little" Scalia).

Maybe you want your 12 year old daughter strip searched because she has gone to a friends house for a sleepover, and maybe you think of your wife as a second class citizen incapable of making intelligent decisions about her own life, but most of the country finds such attitudes objectionable.

Posted by: p.lukasiak at November 1, 2005 11:34 AM | Permalink to this comment Permalink

you dont have to have a hate on for the framers to disagree with originalism. Our society has evolved over time, and a strict constuctiuon of the text may not be the same as the original construction, based on the social context of the time. Im not sure that all the framers relied purely on "original intent' in legal and constitutional interpretation -when they claimed that the crown was violating their rights as englishmen did they go back to see what the authors of Magna Carta, say, had really intended, or did they look at the plain meaning of the text? As it made sense in THEIR time - in the 18th century, not the 13th century.

I think Dems CAN run on conflicting judicial philosophies IN PART. They should also run on economic justice, competence in management, etc. They need to carefully avoid positions on foreign policy that distance themselves from the American center, however.

Posted by: liberalhawk at November 1, 2005 05:47 PM | Permalink to this comment Permalink

you dont have to have a hate on for the framers to disagree with originalism. Our society has evolved over time, and a strict constuctiuon of the text may not be the same as the original construction, based on the social context of the time. Im not sure that all the framers relied purely on "original intent' in legal and constitutional interpretation -when they claimed that the crown was violating their rights as englishmen did they go back to see what the authors of Magna Carta, say, had really intended, or did they look at the plain meaning of the text? As it made sense in THEIR time - in the 18th century, not the 13th century.

I think Dems CAN run on conflicting judicial philosophies IN PART. They should also run on economic justice, competence in management, etc. They need to carefully avoid positions on foreign policy that distance themselves from the American center, however.

Posted by: liberalhawk at November 1, 2005 05:48 PM | Permalink to this comment Permalink

Michael P: "Yes, there are elements of our history that we should never repeat. But, as an experiment that develped democracy as a way of life, it has been a roaring success."

Exactly. You can NOT judge anyone outside the context of their times, and the simple fact is that the men who put the Constitution together were geniuses. It HAS been a roaring success, and those who insist upon everything being absolutely perfect before any credit can be given are barking up the wrong tree. Not to mention living in an illusion of their own making.

I defy anyone to find ANY government that has worked better for most of its people most of the time.

Posted by: mamapajamas at November 1, 2005 11:47 PM | Permalink to this comment Permalink

"Judge Alito's jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said. In cases involving the great issues of the day - abortion, the death penalty and the separation of church and state - Judge Alito has typically taken the conservative side. "

How many times has he been overturned, or in the majority?
One the Family Medical Leave Act, strip-searching the 12-year old femal chattel of a target of a search warrant, the use of the Commerce Clause to regulate the transfer of machine guns at gun shows,....

I guess we'd better brace for a realy sh*t-wave of lying about him.

Posted by: Barry at November 2, 2005 02:47 AM | Permalink to this comment Permalink

p.

I'll second Andrew Sullivan's advice on this nomination -- if you don't want guys like this nominated, win some elections. (If you can't win them after this administration, there is no hope for you.)

Posted by: Appalled Moderate at November 2, 2005 03:16 AM | Permalink to this comment Permalink

If you can win some elections standing firmly on the platform that America's founders were hateful people who created a nation of which we should all be ashamed, and unworthy of comparison to your morally exalted selves, that should make the task of keeping conservative jurists off the Supreme Court much easier for you. I'm just saying, campaign on the things you believe.

Posted by: JEB at November 2, 2005 03:37 AM | Permalink to this comment Permalink

If you can win some elections standing firmly on the platform that America's founders were hateful people who created a nation of which we should all be ashamed, and unworthy of comparison to your morally exalted selves, that should make the task of keeping conservative jurists off the Supreme Court much easier for you. I'm just saying, campaign on the things you believe.

so you think America should be proud of its racist heritage, JEB? Is that what you are saying? Because it certainly sounds like it.

The founders were a bunch of rich white men who set up a government designed to preserve the perogatives of rich white men. They were also among the most progressive thinkers of the era in which they found themselves.

We need to remember both aspects of the founders --- but we need to do so in a way that rejects the bigoted assumptions that were virtually inescapable in that era, and concentrate on what was best about them. Alito (and apparently you) want to have it the other way around.

Posted by: p.lukasiak at November 2, 2005 03:54 AM | Permalink to this comment Permalink

Keep in mind the quote on "originalism" was by an old professor who "keeps up with him" whatever that means (they e-mail occasionally)?

It seems to me that the point of that graf was fairly clear. It was trying to dispel the notion that he is an "activist" judge and is more concerned with the actual meaning of the consitution. I highly doubt originalism is meant to be used as defining a 1792 mindset and to say so seems a bit sophist.

From what I've read he seems to be pretty balanced and considers the context of the evolution of the constitution through other rulings and interpretations, including O'Conners. That being said a Supreme Court judge has more freedom than an Appeals Court, but I really don't see any legitimate reason (ie he is not qualified or we'd get anyone better the third time around).

http://www.csmonitor.com/2005/1102/p01s04-usju.html

Tactically it would hurt Bush to have a second nominee shot down, but if the public doesn't see any good reason to do so, they'll smell partisan politics as usual and, let's be honest, Bush doesn't need to much more help looking bad these days.

Posted by: erutan at November 2, 2005 04:03 AM | Permalink to this comment Permalink

p --

There's an interesting argument hiding in your rhetoric, and it might spice up the thread to get at it. I'm aware of the argument that the framers were rich folk advancing their interests. (This argument dates back to the Progressive Era -- which, not coincidentally, was an era when the Consitution was amended substantially)

But I'm not sure the original 1787 text of the Constitution really is behind much of the rulings today. The Bill of Rights is not part of the riginal text. The 14th Amendments, which is the tool by which the Bill of Rights has been applied to the states, is from the Reconstruction Era.

It seems there were many "framers" of the Consitution we have today. Is Alito and the like minded concerned with the intent of the Radical Republicans who gave us the 14th amendment? Where does he look to find the original intent of first ten amendments. Not at the proceedeings of the Consitutional Convention or the Federalist Papers -- because that's not where they were discussed.

I'm sure I am demonstrating basic ignorance to the Constitutional scholars out there, but I have a feeling that "originalism" is a much abused term.

Posted by: Appalled Moderate at November 2, 2005 04:33 AM | Permalink to this comment Permalink

It seems there were many "framers" of the Consitution we have today.

this is a point that I wanted to make, but never got around to -- thanx!

The whole "original intent of the framers" argument can be considered a red herring, because each time the Constitution is amended, that amendment is based on the contemporaneous perceived deficiencies of the Constitution itself. The Constitution is a framework, and when it is amended it changes the relationships between its various sections in both large and subtle ways.

The idea that we can "return" to the original intent of the framers is rendered absurd, because over the last 200 plus years the Constitution has undergone numerous revisions based on then-current perceptions of what the Constitution meant. "Original intent" ignores that history, and attempts to super-impose an 18th century mindset on amendments that were passed in the 19th and 20th centuries.

Posted by: p.lukasiak at November 2, 2005 05:32 AM | Permalink to this comment Permalink

Secondary advise -- don't criticize opinions you haven't read.

Posted by: PD Shaw at November 2, 2005 05:37 AM | Permalink to this comment Permalink

Why are the Founders always criticized by the anachronistic and politically correct, i.e. they were white men who turned out well, they were slave-owners, didn't let women vote, and did not even believe in a welfare state? Why, at least in polite society, are they not taken to task by the politically incorrect, i.e. in the heat of "Enlightenment" platitudes,they signed on to noble-sounding yet palpable absurdities like "All men are created equal"?

Posted by: gringoman at November 2, 2005 08:11 AM | Permalink to this comment Permalink

Thomas Jefferson was deeply in debt throughout his life and while he was indeed a member of the Virginia planters, he was hardly rich. Likewise, John Adams was constantly in money difficulties to the extent that during his first stint in Europe, his wife started a dairy farm and sold butter in order to pay the daily bills. While both of these men were in Europe, they were financially drained and while they had modest pensions after they retired, they never were rich in the same sense as Washington, who had little or nothing to do with Constitutional drafting.

Madison and Monroe were better off than Adams and Jefferson, but would hardly be considered rich by the standards of the day.

These four were probably the most influential in the formation of the ideas and ultimate drafting of what became the Constitution. The writings of Adams, Washington and Jefferson are all deeply troubled by the slavery institution. Adams never had slaves. Both Washington and Jefferson arranged for their slaves to become freed men after their deaths to the extent in Washington's case that they were not dowery bound.

It is fatuous to measure the attitudes of these men by the standards of today. They were by any standard very progressive for their times and their collective insights into the structure of government were as precient as any men in history. It is true that women played a much lesser role in political life of the day, but that is not to say that they didn't have considerable influence, witness Abigal Adams.

The contention that the original Constitution was a product of a bunch of rich men seeking to preserve their perogatives is a bunch of hooey.

The above poster who points out that the subsequent amendments, particularly the first ten and those enacted after the Civil War were not strictly products of the Founding Fathers is, of course correct. These amendments have been consistently interpreted by the Courts both in their originating context and, consistent with the changing times. It is important to remember that the compromise that assured the adoption of the Constitution contained the promise that there would be immediate amendments that would address the personal liberty issues and the balance of power between the Federal and state governments. The first ten amendments were the result and while the Founding Fathers were influential, there were many other inputs including an awareness of the political realities of the day. Had these amendments abolished slavery, the union would have fragmented and what would have happened subsequently is far from clear. However, no objective observer could conclude that these amendments, which were fashioned by the same "rich white men" were not clearly addressing the personal liberty issues that lead to the Revolution in the first place and that they paved the way for the political and other conflicts that ultimately lead to the Civil War and to the adoption of the post war amendments.

What bothers me most about Luka's arguments is that he seems to see every court decision as result oriented and fails to see that the underlying issues often have little or nothing to do with the result. Likewise, his criticism of the American experiment, in my judgment lacks adequate appreciation for the fact that it was an experiment imposed on a very hetrogeneous population that was very independent minded. Yes, there have been errors. Yes, there are elements of our history that we should never repeat. But, as an experiment that develped democracy as a way of life, it has been a roaring success.

I have not yet had a chance to read many of Alito's decisions and I am not ready to comment on his judicial philosophy.

Posted by: Michael Pecherer at November 2, 2005 08:31 AM | Permalink to this comment Permalink

What bothers me most about Luka's arguments is that he seems to see every court decision as result oriented and fails to see that the underlying issues often have little or nothing to do with the result.

oh, I get it. Its not the results that matter, its the process! And I thought I was the flaming liberal on this blog!

Here's a clue Michael -- when a judge thinks its acceptable for the police to strip search a ten year old girl for no reason other than the fact that she is the daughter of someone suspected (and I want to emphasize the word "suspected"---remember innocent until proven guilty?) of drug possession, what we are looking at is one of two things: either a "process" that has gone horrible wrong, or a judge that has a perverted sense of the "process" to an extraordinary, and horrible, degree.

Explain to me the "judicial philosophy" that allows cops to strip search 10 year old girls----then talk to me about being too "results oriented". Because any such "judicial philosophy" is a complete abomination of what is best about this nation's rule of law, and no amount of right wing bullshit can change that fact.

Posted by: lukasiak at November 2, 2005 11:48 AM | Permalink to this comment Permalink

"These four were probably the most influential in the formation of the ideas and ultimate drafting of what became the Constitution. The writings of Adams, Washington and Jefferson are all deeply troubled by the slavery institution."


jefferson owned thousands of acres. He was chronically in debt cause he had absolutely no discipline about spending, buying art, scientific baubles, wines, etc when he couldnt pay his existing debts. Thats what forced him to keep slaves. Like a heroin addict "forced" to steal.

John Adams, who was genuinely antislavery, was quite troubled about Jeffersons position, and seems to have held it against him.


Posted by: liberalhawk at November 2, 2005 04:05 PM | Permalink to this comment Permalink

jefferson owned thousands of acres. He was chronically in debt cause he had absolutely no discipline about spending...

gee, and here I thought that Bush had nothing in common with the founders (except of course being a rich white male who governs for the benefit of other rich white males.)

Posted by: lukasiak at November 2, 2005 04:47 PM | Permalink to this comment Permalink

Some might say that the truest heirs of Jefferson are today's Democrats: idealistic, Europhiliacs, big spenders, with wonderful talk about equality and human rights, and great (neo)plantations of blacks they care about, blacks who, especially on Election Day, demonstrate 90% faithfulness.

Bush and other Republicans are still in learning mode. Making progress, yes, but still learning.

Posted by: gringoman at November 2, 2005 11:11 PM | Permalink to this comment Permalink

Luka, the issue in the strip search case was whether the police interpretation of the warrent was reasonable under the circumstances. The warrent was addressed to an individual in a crack house. It was well known that crack dealers hide their drugs on third parties, including children when they fear that the police are on their way. In this case, the police interpreted the warrent to authorize a search of everyone on the premises. When it came to the two females, a mother and daughter, the male police officers did not conduct the search. Instead, they waited until a female parking enforcer was in the scene and she conducted the search which was conducted in private and outside of the eyes of the other officers. The issue in the case was whether the police interpretation of the warrent was reasonable, which is the Constitutional standard that is applicable. While I suppose that we can disagree as to exactly what reasonable means in that context, the Constitutional criteria are clear. The police have broad leeway to interpret a search warrent consistent with the circumstances that they face when the warrent is served. The fact that one of the females was ten years old is irrelevant to the inquiry, for there are plenty of instances where children are used by criminals to carry out their criminal objectives. Suppose it had been two adult females? Or perhaps one was 16 instead of 10. I frankly don't see this as a left wing or a right wing issue. The police have to have sufficient leeway consistent with Constitutional limitations to carry out their responsibilities.

To see these issues as a split between result and process does not reflect an awareness of how our judicial system works. Appellate courts are bound by the factual findings of the trial court as long as they are supported by substantial evidence, which generally means any admissible evidence at all. Issues as to the credibility of the witnesses and the weight of the evidence are left to the trial court and are rarely reviewed on appeal. The appellate court reviews the application of the law to the facts as found below. A Federal appeals court is bound by Supreme Court precedent on all questions of Federal law and that includes, of course, Constitutional law. In this case, the issue was whether the police interpretation was consistent with 4th Amendment interpretations by the Supreme Court and legal scholars are in agreement that it was. This is not a process, but rather a prime example of what appellate courts are supposed to do in our system. The issue of whether it is reasonable or not to strip search a 10 year old under the circumstances was not before the Court and hence was not decided.

Posted by: Michael Pecherer at November 3, 2005 12:11 AM | Permalink to this comment Permalink

Re the comments on Jefferson:

Jefferson did own thousands of acres, which at the time were valued at but a few dollars per acre. More importantly, they were mortgaged to the hilt and he had little or no equity in them. His creditors did not foreclose out of deference to his stature. There is no question that he spent whatever he could get his hands on and that he wouldn't have been able to manage his properties without his slave holdings, which by the way were also mortgaged. Assets are only one side of a balance sheet. In contrast, Washington held many thousands of acres that were not mortgaged. If you read the Ellis books on Washington (I think it is "His Excellency" or something like that.) and on Jefferson (American Sphinx) you can see that they were both very troubled about the slavery issue and were locked into a system that gave them little leeway. Nevertheless, to the extent they were able, their slaves were freed by testimentary acts.

Michael

Posted by: Michael Pecherer at November 3, 2005 12:20 AM | Permalink to this comment Permalink

It was well known that crack dealers hide their drugs on third parties, including children when they fear that the police are on their way.

was that "fact" established in the warrant? What evidence is there that the suspect would know that the "police are on their way" and thus that he would likely be shoving a balloon full of crack rocks up his 10 year old daughter's vagina?

The fact that one of the females was ten years old is irrelevant to the inquiry, for there are plenty of instances where children are used by criminals to carry out their criminal objectives.

the idea that the age of the child is irrelevant is absurd on its face, michael. We're talking about a STRIP search here. Of a TEN YEAR OLD girl. During a "surprise" search. In other words, the cops come to the door, and there is really no time for the alleged "bad guy" to strip his daughter and conceal "evidence" in her private parts.

And by the way, we don't arrest and convict people based on what "other people do", we base it on the evidence of their own criminal culpability.

Suppose it had been two adult females? Or perhaps one was 16 instead of 10.

These are both interesting question, but unrelated to what is at issue here --- the question of "unreasonable search". IMHO, it might not be unreasonable to search other adults in the house, because of the strong possibility that, acting on their own, they would try to conceal evidence in their bodies.

I would also think it would not be unreasonable to search a 10 year old girl when the suspect is thought to be transporting drugs, and his daughter is accompanying him at the time the warrant is executed.

But we aren't talking about other adults, but a ten year old girl, and the circumstances did not justify the search --- and its not even a close call.

From what I understand, judges frown on "everyone on the premises" search warrants, and require that warrants be as specific as possible with regard to whom will be searched.

Is that true?

Posted by: lukasiak at November 3, 2005 12:33 AM | Permalink to this comment Permalink

Luka, As I understand the facts of the case, the mother and daughter were not related to the individual who was the target of the arrest. The premises were a known crack house, that is, a completely illegal establishment where people did not live, but where people attended to engage in illegal activities. The mother was on the premises presumably for those purposes otherwise why would she be there? She had her daughter with her. The amount of time between the suspect's awareness of the impending arrest and the actual time that the police arrived is not apparent and hence that argument is speculation. Were this a routine service of a warrant on a residence, or stopping of a vehicle pursuant to a warrant, I would be more inclined to view the focus of the case as being on the reasonableness of the search. However, that is not how the issue was joined as far as I can see. The issue before the court was not whether the search was reasonable or not, but whether the police interpretation of the warrant as authorizing the searches of the females in addition to the object of the arrest was reasonable. Apparently, the appellants did not raise the issue that was of such concern to you and that suggests that something in the factual picture was adverse to that position. I will try to dig deeper into that one. (By the way, the search was conducted by a female officer and I don't believe that there was a vaginal search although she did require the women to bend over and observed them from the rear.)

As to the scope of a warrant, you are generally correct that they are read narrowly in the sense that they are to be supported by the affidavits on which they are based. The service of a warrant does not constitute a carte blanche to search anything and everyone on the premises without there being a substantial reason connected to the crime under investigation. Warrants are generally obtained by district attorneys or their equivalents and are served by the police. In the run of the mill case, the interpretation of the warrant is straightforward and the objective is to either search a person or a premises or both. However, there are instances where the premises themselves constitute a crime scene as was the case here. Operating a crack house is a felony and an officer observing a felony even when on the premises pursuant to a warrant, is entitled to search the premises sufficiently to gather all relevant evidence and to search all persons on the premises as well. For Fourth Amendment purposes, the ultimate test is whether the person who is subject to such a search has a reasonable expectation of privacy. How could anyone have such an expectation in a crack house?

Strip searches of children are certainly not something that I would advocate or even support generally. I would expect that there is a risk that such a search could be traumatic to a child. However, I would expect that having a crack using mother would be traumatic as well. I don't know how to sort all of those issues out. However, I am a father of both a daughter and a son. I hope I have raised them to stay away from criminal activities. I would be quite upset if my daughter were arbitrarily strip searched. I would be much more upset if I learned she were hanging out in a crack house. I feel confident that neither of my children would be in such a situation as I have been a very involved and responsible parent. I am not the raving right winger that you have made me out to be. There is an expression among attorneys that bad cases (ie, bad facts) make bad law. This was a case where judgments were made that you and I might not agree with, but that was not the question before the court and if you are going to evaluate a judicial candidate on the basis of his decisions, you have to start with the issue that is presented to the court and not what might have been presented in a perfect world. There are many reasons, particularly in criminal cases (and I am not a criminal atty) where certain attractive issues are not raised deliberately because of adverse facts. This is particularly important when considering the record of a judge whose judicial philosophy is to decide the issues properly before the court and not to either legislate from the bench, or reach for issues in order to affect the result.

Where you and I seem to disagree is on that latter point. When an appellate court goes beyond the issues properly before the court and reaches for issues in order to achieve a particular result, the cumulative effect is that precedent has no meaning and decisions drift to the ad hoc. Occasionally, such action by an appellate court can have a very salient effect. For example, there are those that argue that Judge Marshall's decision in Marbury v. Madison was a political act intended to restrict efforts by Jefferson to make the legislative power absolute and reflected Marshall's vendetta against Jefferson. As thing turned out, the decision established a critical foundation in our governmental structure. So, once in awhile is ok, I guess. However, if such an approach were routine, the result would be legal chaos.

Given the context of our discussion, I think it important that you understand my politics. First, I am strongly pro-choice, but wish that abortion was not of importance in political discourse. Next, I am conservative on economic matters as I believe that the free market is far and away the best mediator for sorting out ideas. That is not to say that there should be no regulation, but excessive regulation is stultifying as is evident in Europe. Finally, I grew up in the civil rights movement and was very active during the '50s and '60's. I have strong feelings about personal liberties and at the same time I strongly believe that personal responsibility is the key to a successful and happy life. I do not believe that I have any racial or ethnic bias. I am uncomfortable with the influence of the religious right, but I have voted Republican in the last few elections simply because the Democratics have offered very poor candidates in my opinion.

Michael

Posted by: Michael Pecherer at November 3, 2005 05:08 AM | Permalink to this comment Permalink

However, that is not how the issue was joined as far as I can see. The issue before the court was not whether the search was reasonable or not, but whether the police interpretation of the warrant as authorizing the searches of the females in addition to the object of the arrest was reasonable. Apparently, the appellants did not raise the issue that was of such concern to you and that suggests that something in the factual picture was adverse to that position.

I would suggest that the lawyers for the mother (i.e. the woman who was suing the police department) advised her that she stood to gain the most money by making the search of herself and her daughter "of a piece" --- if I was a lawyer, I'd certainly advise her that the case regarding her search was much weaker than that of the search of her daughter.

It seems to me that you take what is essentially a reductio ad absurdum approach to the law -- rather than look at a specific act (call it act Z) to determine if it is reasonable, you posit that if Act A is reasonable, then Act B is reasonable, and if Act B is reasonable, Act C is reasonable....and if Act Y is reasonable, then Act Z is reasonable.

Now, I fully understand that the interpretation of the law acts in such increments--- and indeed most of what we assume in terms of our civil liberties like free speech is the result of such an "incremental" approach to the law. (One such instance is the acceptance of pornography as a form of "free speech." Its completely absurd to think that is what the First Amendment is supposed to protect. But we wind up protecting it anyway.)

But there comes a point in which the incremental interpretation of the law results in an essential conflict between the elements of the constitution. Its simply absurd to think that a strip search of a ten year old girl was not "unreasonable" given the facts of the case -- and absent unambiguous facts that make it "reasonable" it must be judged "unreasonable."

The bottom line on this case is this -- I strongly suspect that if the judge who approved the warrant had been asked for permission to strip search any ten year old girls who might have been there with their mothers, that judge would have demanded that the police provide specific evidence that made such a search necessary. I also strongly suspect that when a judge issues a search warrant for "others" who might be in a crack house, he isn't thinking about children who might be there with their parents --- he's thinking about crack users.

These cops crossed a line --- a line that if they had asked permission to cross, they would not have been allowed to cross without providing specific evidence of the need to cross it. They acted in an "unreasonable" fashion --- and although I'm not in favor of letting crack whores sue police departments, I think that the majority decision in this case was not just the right one, but that it wasn't even close.

Posted by: lukasiak at November 3, 2005 06:49 AM | Permalink to this comment Permalink

"Its simply absurd to think that a strip search of a ten year old girl was not "unreasonable" given the facts of the case -- and absent unambiguous facts that make it "reasonable" it must be judged "unreasonable.""

I think this is the point of our disagreement. While I agree with much of your commentary, where we part company is the absolutist conclusion quoted above. I have a more contextual view of the analysis. When a warrant is issued, it is issued not on the evidentiary standard that exists in a trial context ("beyond a reasonable doubt" or "more likely than not" depending upon the context) but rather on the basis of "probable cause." The showing required to obtain a warrant is of a much lower substantive quality than to obtain a conviction. The underlying idea of judicial supervision of the warrant process is that the proponent is required to present a picture to a judge that suggests a reasonable probability that the person or premises are involved in criminal activity. Great specificity is not required nor, in most cases, are the officers required to return to the Court in order to expand the search as long as the "probable cause" standard remains applicable. The "search" can be voided in subsequent criminal related proceedings if, in retrospect, the expansion of the search is viewed as unreasonable in hindsight.

This case really involved a claim for money damages for a civil rights violation. I agree with your analysis that the mother had a weak case simply because she was on and presumptively involved in criminal activities on a crime scene site. In fact, she probably would have been dismissed by summary judgment if she had proceeded alone, for there is simply no question that the police were entitled to search everyone found on the premises.

As I have indicated, I agree that the daughter was a far closer question. Perhaps in hindsight, the best approach would have been for the police to arrest the pair, bring them to the station, and having searched the mother as they clearly had the right to do, sought additional judicial authority to search the daughter. I also agree that had the issue of searching children on the site been brought up in the warrant application, the issuing judge might well have qualified the scope of the search to the procedure that I just suggested. But that is not what goes on in the real world. There is no indication that the police had any foreknowledge that they would find children on the premises. Police serve a warrant with a greater or lesser degree of knowledge as to what they might find on the premises. As this issue has been sorted out over many, many cases in many courts over the years, the rule has evolved that if upon serving the warrant the police observe that a crime is in process or that they observe that a felony is ongoing, as was the case here, they can expand their search under the direct probable cause rule. (Keep in mind that warrants and conduct pursuant to warrants is tested by motion to supress evidence and those motions are made in the great majority of criminal cases. Appellate review of motions to quash has served to evolve the above standards.) The fact that there might have been a better way to search the child does not mean that the way the child was searched is per se unreasonable.

In fact, I do not think you would ever get any court to rule that a strip search of a child is per se unreasonable in all circumstances. Yet that seems to be what you are arguing. The result is going to be very circumstance bound. For example, a strip search of a minor female suspect arrested in a school or on a public bus would probably not be reasonable without subsequent court supervision even if possession of drugs was suspected. But what if possession of weapons was suspected? A closer question. On the otherhand, a strip search of an child at the site where the parents are involved in a terrorist attack or an ongoing gang shootout and where there is a reasonable basis to believe that a detonator or a weapon is hidden in their shorts might well be reasonable from a criminal law perspective. If the search is reasonable from a criminal law perspective, as a matter of basic civil rights policy, it should not give rise to tort style money damages.

The answer to this dilemma is for police departments to establish policy guidelines for searches of children so that everyone knows, or is presumed to know the rules of the game. Thus, when those involved in criminal activity elect to involve their children, they know the risk that the children will be subject to the same degree of law enforcement scruteny as the adults.

Finally, I think it a rather bizarre policy to reward parents who insert their children into criminal activities with monetary compensation when their children, rightly or wrongly get caught up in the investigatory process. While that issue was not overtly addressed by the Court, I suspect it was on the mind of the judges as it certainly would have been on my mind were I on that bench. Don't ever forget that policy consideration are involved in virtually every appellate decision even if they are unstated.

Michael


Question: How do you italicize text in this context? Are you writing in Word and transferring over to this blog?

Posted by: Michael Pecherer at November 3, 2005 05:43 PM | Permalink to this comment Permalink

In fact, I do not think you would ever get any court to rule that a strip search of a child is per se unreasonable in all circumstances. Yet that seems to be what you are arguing.

Michael, I think i made it clear that, in cases where someone is suspected of transporting drugs, and at the time the suspect is stopped he is travelling with a child, that a strip search of the child would be permissible (if for no other reason that a child who was carrying crack in their bodies was at a serious health risk.)

IMHO, a probable cause argument for the strip searching of young children has to be considered separate and distinct from that of an adult. I'm far less of an absolutist that you seem to think I am, I just think that there has to be (and, in fact, are) different standards for strip searching children, and that using the excuse that the warrant application specified "all occupants" doesn't (and shouldn't) cut it.

Question: How do you italicize text in this context? Are you writing in Word and transferring over to this blog?

that's a tough one, because the characters you use to do it cannot be shown in this comments format...they are seen as "control" characters, not text characters.

But here goes....at the start of the text to be italizied, type the other (shifted) character on the key with the comma, followed by the letter "i", followed by other (shifted) character on the key with the period. To end the italicized text, substitute the "/i" for the letter "i" in the above sequence.

to do bold simply substitute the letter "b" for the letter "i" in the sequence above.

Posted by: lukasiak at November 3, 2005 08:27 PM | Permalink to this comment Permalink

Luka,
Ultimately, we are not that far apart. Thanks for the help and I have enjoyed this discussion.

Michael

Posted by: Michael Pecherer at November 4, 2005 03:19 AM | Permalink to this comment Permalink

Ultimately, we are not that far apart. Thanks for the help and I have enjoyed this discussion.

same here. Like I said, if the court was dominated by the likes of Ginsberg and Souter, I'd be happy to have an "original thinker" like Alito on the court -- if for no other reason than it would ensure that the opinions rendered by the court are as well formulated as possible.

But when it comes to civil liberties and civil rights, if of the "we don't want the smoking gun to be a mushroom cloud" school of thought --- epecially when, given the nature of SCOTUS, that first mushroom cloud wouldn't be the last! :)

PS...

please italicize something, so I know my explanation was adequate (or you have gotten better instructions from others.)

Posted by: lukasiak at November 4, 2005 03:04 PM | Permalink to this comment Permalink
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