Results matching “lithwick”

Dahlia Lithwick makes a good living writing Supreme Court commentary where she utterly misrepresents conservative justices' positions and knocks down the strawmen. That she got a National Magazine Award for three such columns about the health-care cases says more about the National Magazine Award than Lithwick's work. Ramesh Ponnuru's takedown of one of the columns should have been disqualifying by itself; we earlier noted other devastating criticism of the columns, and have had no shortage of other Lithwick critiques, though I've largely stopped reading her for the sake of my blood pressure.

Dahlia Lithwick does it again - PointOfLaw Forum

It happens so often I should just create a keystroke macro to save time blogging about it, but, yes, once again, Dahlia Lithwick got something embarrassingly wrong when trying to criticize a right-winger, this time distorting a blog post by Randy Barnett about Justice Scalia to set up a future unfair attack on Scalia if he doesn't vote on the Obamacare litigation the way Lithwick wants him to. And Ed Whelan dismantles Lithwick's typically shallow analysis of the Obamacare litigation, where she, inter alia, misrepresents the arguments of lower-court judges on the litigation. Earlier.

Dahlia Lithwick does it again - PointOfLaw Forum

To repeat myself: Dahlia Lithwick got something embarrassingly wrong when trying to criticize a right-winger and defend a liberal? Quelle surprise! Jonathan Adler demolishes the claim that Justices Scalia and Thomas did something wrong by speaking to the Federalist Society; note also that we never see complaints when liberal justices speak to liberal organizations. Earlier.

Around the web, December 10 - PointOfLaw Forum

  • Thorogood v. Sears, Roebuck & Co.—the Seventh Circuit case that keeps giving us good opinions, this one the fourth in a series. [LNL; NLJ; Courthouse News; SBM Blog; ABAJ; Wisconsin LJ] (Update: and Drug and Device Law later this morning.)
  • Radio story about ADA filing mill. [This American Life via CJAC]
  • Will $189 million Hurricane Ike settlement be opened to the public? [Austin American-Statesman via ABAJ]
  • Bad idea division: Washington Supreme Court abrogates economic loss doctrine. [Jackson via OL]
  • Wal-Mart v. Dukes case features intersection of two conflicting strains of Justice Ginsburg's jurisprudence: distaste for procedural shortcuts of class actions and friendliness to gender discrimination claims. [Lahav]
  • Dumb syllogism department: "I think reproductive rights are important. There are some important reproductive rights cases. Therefore all law students should be required to take courses in reproductive rights law." [ATL]
  • When will SEC run afoul of the First Amendment? [Bainbridge]
  • Dog bites man department: Dahlia Lithwick not especially entirely intellectually honest in characterizing conservative legal arguments. Again. [Kerr @ Volokh; Bernstein @ Volokh]
  • I stand corrected. ("Forget" was definitely the wrong verb.) [Ribstein @ TOTM]
  • Actor who played the Johnnie Cochran parody on "Seinfeld" very impressed with himself; thinks hot-coffee case was silly. [Abnormal Use]

So many judicial nominees, so little time - PointOfLaw Forum

Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, gave a Senate floor speech Wednesday protesting the slow pace of judicial confirmations. Leahy inserted into The Congressional Record a Slate article on the issue by Dahlia Lithwick and Carl Tobias.

Leahy's remarks could be seen as laying the groundwork for a move by the majority Democrats to force a vote on pending judicial confirmations. Sen. Sheldon Whitehouse (D-RI) bruited such a move to the Blog of the Legal Times for the most controversial nominees, Rhode Island trial lawyer John "Jack" McConnell, Louis Butler of Wisconsin, Goodwin Liu of California for the 9th Circuit, and Edward Chen for the Northern District of California. The WSJ's Law Blog also reports, "Lame Duck Senate Looking to Act on Controversial Judges."

The Senate Judiciary Committee is scheduled to vote on the nomination of 12 federal judges this morning, including the controversially beleaguered and embattled Robert Chatigny to the Second Circuit.

Conservatives groups sent a letter to Senate Majority Leader Reid on Monday urging him not to push any executive branch nominations during the lame-duck session, citing the mentioned judicial candidates as among "the most egregious."

So Sen. Leahy's remarks Wednesday could be rallying the troops for the fight. Oh, they could have been just be another floor speech. Before he spoke, Sen. Christopher Bond (R-MO) made a brief speech about S. 3538, the National Cyber Infrastructure Protection Act. After Sen. Leahy, Sen. Ron Wyden commemorated National Home Care and Hospice Month.

UPDATE (12:35 p.m.): The Judiciary Committee postponed action on all the judicial nominees.

The unhingedness of the latest Dahlia Lithwick column is best demonstrated by the fact that the very first case she and Barry Friedman single out as evidence of eeevil conservatives whittling away at our rights is a unanimous opinion with the pretty sensible reading of Miranda that police can re-question someone who waives his Miranda rights three years after the initial questioning if he's been given new Miranda warnings. Friedman and Lithwick are mystified that, though the Court has taken an ever-so-slight rightward turn (while Alito is to the right of O'Connor, Sotomayor is to the left of Souter), the public thinks the Court is still too liberal, though they miss the obvious explanation: the Court is still considerably to the left of the American public. As Brandon Bartels points out, even with the Court moving to the right, the majority of the last decade's "salient decisions"—decisions that made the front page of the New York Times—come out the way the Left would prefer. Throughout the article, when conservative justices reach liberal results, it's because the inherent correctness of the liberal result prevents conservatives from casting the votes they really want to; when liberal justices reach conservative results, it's because of the magic tricks conservatives play on the system. (And, of course, when conservative justices reach conservative results, it's because they're ignoring the law. So why don't they ignore the law when they reach liberal results? Friedman/Lithwick's fevered conspiracy theory has no predictive value.)

Relatedly, Orin Kerr detects some suspicious data-slicing in a New York Times assessment of Justice Breyer.

Update: See also Althouse and Blackman.

Kate Zernike is mystified about this "rule of law" thing Tea Party activists talk about. (Scare quotes for "rule of law" and "property rights" are in the original article.) How soon they forget Scott Horton or Dahlia Lithwick or Tom Geoghegan or Philip Heymann or many others criticizing the Bush administration over its supposed disregard for the "rule of law." See also Stoll, Carney, Boudreaux.

Dahlia Lithwick does it again - PointOfLaw Forum

Our supposedly pro-business Supreme Court - PointOfLaw Forum

Glenn Lammi, Carter Wood and Ramesh Ponnuru all have a go at correcting People for the American Way and Dahlia Lithwick on some of their more egregious misstatements.

Jonathan Adler on the Liu nomination - PointOfLaw Forum

Getting past the "we've got to confirm him extra fast because he's incredibly moderate" mythology.

P.S. Rick Garnett on some debatable New Republic assertions about "activism." And here's the happy news that Richard Epstein and Randy Barnett are confirmable after all -- we know because Dahlia Lithwick says so.

Dahlia Lithwick vs. the Roberts Court, cont'd - PointOfLaw Forum

Jonathan Adler and Hans Bader catch her palming off on Slate and Newsweek readers a risible caricature of a high court in which supposedly -- Lithwick's words -- "big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door."

Koh's road to confirmation - PointOfLaw Forum

Apparently if you can show that some people are leveling silly and inaccurate charges against Harold Koh, you get to glide right by any alarms raised about Koh's views that might be not so silly and not so inaccurate.

Eric Posner on Ledbetter Act - PointOfLaw Forum

Slate's Eric Posner provides a devastating rebuttal to the overwrought claims of Dahlia Lithwick about the misnamed Lilly Ledbetter Fair Pay Act. He leaves out an important argument, which I noted for the Justice Talking blog: existing law, the Equal Pay Act, already permits lawsuits with a longer statute of limitations than 180 days, and Ledbetter's suit failed because she used the wrong statute.

Around the web, March 31 - PointOfLaw Forum

  • Recoupment litigation like Alaska's against Zyprexa is the equivalent of an unlegislated tax on health care sector, says Beck [LegalNewsLine]
  • Twenty-three Long Island school districts improperly kept private lawyers on the books as public employees, sometimes as fictitious full-timers [Newsday via Greenfield; earlier on OL]
  • State of Rhode Island files its brief, festooned with amici, in lead paint nuisance case appeal; state high court will stream live video of May 15 oral argument [ProJo, Genova, Pincince/RILJ]
  • Canada now has third-party litigation finance, as well as a mounting class action docket [ABA Journal, Financial Post]
  • Drug patent bailout bill might also be helpful to Ropes & Grey/Fish & Neave [T. Carney/Examiner and more]
  • New law blog at Slate includes Dellinger, Kerr, Lithwick, Kmiec, Bazelon, others ["Convictions"]

Lithwick does it again - PointOfLaw Forum

Dahlia Lithwick criticizes Justice Roberts' "less-than-spectacular record thus far on speech issues before the high court." Of course, she only mentions Morse v. Frederick, and not Wisconsin Right to Life v. FEC, thus implying that the ability for a high-school student to engage in disruptive conduct and sue school administrators for being disciplined is more important to free speech than, say, the ability to freely criticize elected officials.

"The problem with [Dahlia] Lithwick's formulation is its utter failure to distinguish between law and policy." I think it may be time to devise a keyboard macro for that (e.g., here and here).

Lithwick's civil-liberties blinkers - PointOfLaw Forum

Dahlia Lithwick compiles a list of the ten worst civil liberties outrages of the past year, which turns out to consist entirely, with not a single exception, of Bush Administration policies relating to the War on Terror. #10 on the list, for example, is federal prosecutors' decision to seek the death penalty for enthusiastic Al Qaeda plot participant Zacharias Moussaoui. That counts as a more serious menace to civil liberties, in Lithwick's view, than any prosecutions of the innocent on terrorism-unrelated grounds in the past year, or any existent or proposed curbs on mainstream political speech, or any steps afoot to regulate the Internet. How comforting to know that state governments or courts deciding liability cases or drug warriors or for that matter non-state actors never appear in the top rank of threats to our civil liberties.

Radley Balko has drawn up a list of 2006 outrages that does a better job of conveying the range and diversity of government threats to liberty. RightRainbow is not particularly charitable toward Lithwick, describing her as "appallingly obtuse" (& welcome readers of Doug Berman's Sentencing Law blog).

Supreme Court clerks redux - PointOfLaw Forum

Speaking of "sloppy mischaracterizations" - PointOfLaw Forum

[Alito] wrote sparely [in Farmer]: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." Alito then simply applied the facts of the New Jersey statute to the Supreme Court's holding in Stenberg and noted that the New Jersey statute failed because it was virtually indistinguishable from the Nebraska law that had just fallen. [...] It was a win for stare decisis, yes. But not for choice.

(Dahlia Lithwick, "Three-Quarter Truths",, Nov. 14). Stare decisis is, of course, the doctrine whereby judges decide to follow precedent because "in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 406 (1932) (Brandeis, J., dissenting)).

But Alito was applying a different principle, the one Lithwick quotes: "follow[ing] and apply[ing] controlling Supreme Court precedent." Stare decisis is discretionary; but following binding precedent is mandatory (hence the term "binding"). See, e.g., Khan v. State Oil Co., 93 F. 3d 1358 (7th Cir. 1996), rev'd, State Oil Co. v. Khan, 522 U.S. 3 (1997). In the lower-court case, Judge Posner followed binding Supreme Court precedent that he felt was wrongly decided; on appeal, the Supreme Court showed that it agreed with Posner by unanimously reversing his decision, because his opinion showed strong justification for the Supreme Court to disregard stare decisis for the 29-year-old "super-precedent" of Albrecht.

It's not clear whether Lithwick believes that lower-court judges have the discretion to disregard binding precedent when they disagree with it strongly enough, or whether Lithwick is committing the same sort of "sloppy mischaracterization" she accuses others of making in the subhead of her piece.

Unhand that French fry - PointOfLaw Forum

Bill Dyer is on the warpath again to counter misrepresentations about John Roberts's D.C. Circuit ruling in the Ansche Hedgepeth v. WMATA (French fry on the Metro) case. This time the misrepresenter is Georgetown lawprof Peter Rubin, who follows Dahlia Lithwick into the penalty box.